Kansas City Terminal Ry. Co. v. James , 298 Mo. 497 ( 1923 )

I am unable to concur in the majority opinion. Such opinion adopts the statement made by SMALL, C., in the opinion written by him in Division One. I fully concur in Judge SMALL'S opinion and adopt that portion of his opinion following the statement (already set out in the majority opinion) and beginning with paragraph II as my dissenting opinion in this case. Graves, J., concurs herein.

"II. We have no doubt that the plaintiff may have intended, in fact did intend, to give the exclusive right to the Shaw Taxicab Company to solicit business and stand its cabs upon its grounds and Plaza, sidewalks and roads in front of its Union Station building, but it is not legally required to do so by the contract entered into May 15, 1920. Assuming that plaintiff intends to thus favor the Shaw Taxicab Company, the question we have to decide is, whether it has the legal right to do so. The petition does not seek to interfere with the defendants from entering upon plaintiff's grounds and into its station building in delivering passengers and baggage transported to its depot by defendants, but to restrain defendants from soliciting patronage and business upon its said grounds and in its buildings or standing their cabs upon its grounds.

"Learned counsel for respondents rely upon the following authorities to sustain the judgment of the lower court, holding that plaintiff had no right to so exclude defendants from its premises, to-wit: Cravens v. Rodgers, 101 Mo. 247; Kalamazoo Bus Co. v. Sootsma, 84 Mich. 198; Cole v. Rowen, 88 Mich. 219; State v. Reed, 76 Miss. 211; Pennsylvania Co. v. Chicago, 181 Ill. 289; Montana Ry. Co. v. Langlois, 9 Mont. 419; McConnell v. Pedigo,92 Ky. 465; Lucas v. Herbert, 14 Ind. 64; Indianapolis Union Ry. Co. v. Dohn, 153 Ind. 10.

"Appellant relies on the following authorities to show that it had a legal right to make such exclusive contract with said Shaw Taxicab Company, or any other responsible party who will properly attend to the business of transporting passengers and baggage to their destination in said Kansas City, and thus to exclude defendants from soliciting business or standing their cabs upon its property: Ferry Co. v. Railroad, 73 Mo. 389; Ferry Co. v. Railroad, 128 Mo. 224; Telephone Co. v. Telephone Co.,236 Mo. 114; State ex rel. Tel. Co. v. Commission, 272 Mo. 627; Donovan v. Railroad, 199 U.S. 279; Railroad v. Minnesota, 238 U.S. 340; Carriage Co. v. Railway, 190 F. 212; Skaggs v. Railway, 233 F. 827; Cab Company v. Terminal Association, 6 Mo. P.S.C. 19; Railroad v. Tripp, 147 Mass. 35, 17 N.E. 89; Railroad v. Brown,177 Mass. 65, 58 N.E. 189; Railroad v. Sullivan, 177 Mass. 230,58 N.E. 689; Railroad v. Scovill, 71 Conn. 136, 41 A. 246; Godbout v. Depot Co., 79 Minn. 188, 81 N.W. 835; Railroad v. Flynn, 26 N.Y.S. 859; Brown v. Railroad, 27 N.Y.S. 69; Railroad v. Sheeley, 27 N.Y.S. 185; Railroad v. Warren,64 N.Y.S. 781; Railroad v. Bork, 23 R.I. 218, 49 A. 965; Railway v. Baggage Co., 99 Va. 111, 37 S.E. 784; Hedding v. Gallagher, 72 N.H. 377, 57 A. 225; State ex rel. v. Depot Co.,71 Ohio St. 379, 73 N.E. 633; Railroad v. Davidson, 33 Utah, 370, 94 P. 10; Kates v. Baggage Co., 107 Ga. 636, 34 S.E. 372; Rose v. Commission, 75 W. Va. 1, 83 S.E. 85; Railroad v. Graham,64 Pa. Super. 437; Transfer Co. v. Portland, 84 Or. 343, 164 P. 570; Thompson v. Whitemore, 102 Atl. (N.J.) 692; Thompson v. Mount, 111 Atl. (N.J.) 173; Mader v. Topeka, 106 Kan. 867, 189 P. 969; Railroad v. Kohler, 107 Kan. 673, 193 P. 323; Denton v. Railway, 160 S.W. (Tex.) 113; Clisbee v. Railway, 230 S.W. (Tex.) 235.

"As to the authorities relied on by respondents:

"Cravens v. Rodgers, 101 Mo. 247, was decided in 1890. In that case it was held that a railroad company had no authority to make a contract giving one hackman the exclusive right to use the most convenient and accessible portion of its depot platform to deliver and receive and solicit the carrying of passengers and baggage to and from the several trains using its depot, to the adjoining town of Gallatin, Missouri. There were two hack lines at Gallatin and the owners of one hack line had, by agreement with the agent of the railroad company whose authority was not questioned, received such an exclusive right from the Chicago, Rock Island Pacific Railroad Company, which owned and operated the depot and on whose line it was located. The court said, page 252 et seq.: `The exclusive privilege which the plaintiffs claim, under their license from the railroad company's station agent, of occupying the space beside the railroad platform of easiest approach thereto, next to the station building, the objective point for the discharge of the railroad passengers, is a valuable one, giving the plaintiffs an advantage, in carrying on their business, over the defendants, their rivals, in the same line of business. The business of both parties is that of common carriers for hire, on the same line, and by their connection with the railroad forming one continuous line, by which passengers are transported to the same general destination, the railroad company carrying them to its station near the city, and plaintiffs and defendants carrying them to their several destinations in the city. As common carriers it is the duty of each of the parties to transport all persons who offer to take and pay for passage with them, and they are charged with grave and responsible duties to such persons when they have once taken passage. They must make the trip whether they have one or many passengers. As a corollary of this duty to carry all, there ought to be a corresponding right upon the part of each to have the same facilities afforded them to obtain the passage in their respective vehicles of all such passengers as are brought to the point of connection by the connecting carrier, the railroad company, on the same general route. In this way the enterprise of each is encouraged, competition is stimulated, the price of transportation is kept within reasonable bounds; the safest, best and most comfortable means of conveyance, a rapid passage and polite and agreeable service are apt to be secured to the traveling public.

"`On the other hand, if better facilities are afforded to one carrier than another by the connecting carrier, competition is discouraged, a monopoly created, and the traveling public are apt to receive a slow, uncomfortable, solvenly, negligent and expensive service. Monopolies are obnoxious to the spirit of our laws, and ought to be discouraged. This is the spirit of our constitutional provision which prohibits "discrimination in charges, or facilities in transportation . . . between transportation companies and individuals or in favor of either." [Art. 12, sec. 23.] And in this case we do not think the railroad company could give the plaintiffs the exclusive privilege of approach to nearly one-half of its platform, and that the most desirable and advantageous half for procuring passengers, and thereby deny it to the defendants, both being there for the same purpose and in the same business of forwarding the railroad's passengers to their places of destination from the point where the railroad company landed them.'

"No authorities are referred to by the learned court in its opinion.

"The case of Wiggins Ferry Co. v. Chicago Alton Railroad Co.,73 Mo. 389, had been decided at that time. That case held that defendant Railroad Company had power to contract with plaintiff Ferry Company to complete the transportation of goods whose destination was at St. Louis, Missouri, by giving all its ferry business to said Wiggins Ferry Company which operated a ferry across the Mississippi River between St. Louis, Missouri, and East St. Louis, Illinois. The court held that the contract was valid and was neither ultra vires, condemned by public policy, nor in restraint of trade. The court said, at pages 409-410, in answer to the argument that the exclusive feature of the contract prevented the railroad from securing for the public the best service in transporting persons and property from its terminus at East St. Louis to St. Louis, Missouri, as it was required by its charter to do: `It was no concern of the public what particular ferry should be employed by the defendant as an instrumentality for the prompt passage over the river of all freight and passengers requiring such transit, provided the one employed was in all respects sufficient to accomplish such purpose without imposing any additional burden on the shipper. The obligation of plaintiff required it to "furnish and maintain wharf and steam ferry boats sufficient to do with promptness and dispatch all the ferrying of passengers and freight requiring it." What more than this could be demanded? What right of the public was disregarded by defendant agreeing always to employ a company which it had thus obligated?'

"The same ruling was made in Wiggins Ferry Co. v. Chicago Alton Railroad Company, 128 Mo. 224.

"In Telephone Co. v. Telephone Co., 236 Mo. 114, we held that two telephone companies operating in different fields may, by contract, arrange for physical connection of their lines and such contract is valid and will be enforced, although the contract provides that neither party thereto shall enter into a like contract with any other company, and although if such contract be enforced it will deprive one of them of the right to make such physical connection with a third company — overruling the case of Telephone Co. v. Telephone Co., 147 Mo. App. 216, where such contract on the authority, largely, of Cravens v. Rodgers, supra, was held void, on the ground that it provided for an unjust discrimination by one common carrier against another as to equal facilities for connecting business. [See 147 Mo. App. 237.] The case in the 236 Mo., the opinion being written by Judge GRAVES, was decided on the authority of the two Wiggins Ferry Cases. The court said, page 136: `Under the railway statute this court has held that it is proper for a railway company to enter into a contract with a single ferry company to handle its freight, and that a violation of such contract by employing another ferry company rendered the railroad company liable in damages. It was further held that such contract was not void as violative of public policy, nor as being a contract in restraint of trade or creating a monopoly. [Wiggins Ferry Co. v. Railway Co., 73 Mo. 389; Wiggins Ferry Co. v. Railway Co., 128 Mo. 224.] In these cases the contract provided for one continuous line of transportation. The railway company ended at East St. Louis and wanted to get to St. Louis. The contract was for ferriage across the river, and obligated the railway company not to use any other ferry. At the time there were two other corporations conducting a ferriage business. These cases to my mind practically settle the controversy in this case.'

"In the case of Cravens v. Rodgers, supra, the depot was about one-half mile outside of the city of Gallatin. There were but the two hack lines. The court expressly holds that they were connecting carriers of the railroad company, `and by their connection with the railroad forming one continuous line, by which passengers were transported to the same general destination, the railroad carrying them to its station near the city, and plaintiffs and defendants carrying them to their several destinations in the city.' The court held that because the hackmen were connecting carriers of the railroad, the railroad could not make an exclusive contract by which it gave one the advantage over the other in getting or doing such connecting business. The Ferry Company and Telephone cases, supra, expressly decide the other way and must be deemed to overrule, if not expressly, yet by implication, the Cravens-Rodgers Case. This view of the effect of our decisions was taken by the Federal court in the litigation referred to in that court, Skaggs v. Terminal Co., 233 Fed. l.c. 830-31, and by our Public Service Commission, when it had the same question as to the rights of the cabmen at the St. Louis Union Station before it. [Yellow Cab Motor Co. v. Terminal Ry. Assn., 6 Mo. P.S.C. 19.] We think such view is correct.

"If, therefore, connecting-carrier cases are in point the law in this State is with the appellant in this case. If not, the question is an open one in this court, and we think that by far the greater weight of authority and reason is with the appellant. There are several cases cited by respondents where the facts were the same as in the case, i.e. where the cabmen asserted the right to go upon the depot company's premises to solicit business and stand their cabs where the court ruled they had a right to do so, chiefly on authority of the Cravens-Rodgers Case, decided by this court, to-wit: Kalamazoo Hack Bus Co. v. Sootsma, 84 Mich. 198; State v. Reed, 76 Miss. 211; Indianapolis Ry. Co. v. Dohn,153 Ind. 10. A later case in Michigan, Dingham v. Railway,164 Mich. 328, in effect made a contrary ruling and said that the Sootsma Case "was probably against the current authority." Some of the other cases cited by respondents tend to support, but do not involve the precise question here. Other cases, notably the case of Pennsylvania Railroad Co. v. Chicago, 181 Ill. 289, do not involve at all the question we have to decide, as pointed out by the Supreme Court of the United States, in Donovan v. Railroad, 199 U.S. 300. The Donovan Case was decided in 1900 and presents the same question we have to decide, to-wit, whether cabmen have the right to go upon the depot company's premises to solicit business and stand their cabs. That they may do so to deliver the passengers which they bring to the depot or to receive those whom they have already agreed to transport, is not denied by the plaintiff, and is not sought to be prevented by this proceeding. They have such right as the agent of the passenger, who has a right to go to the place assigned passengers in the depot itself, and to have his agent or servant accompany him, to render such assistance as he desires. But a different question is presented where the cabmen claims as his own independent right the right to go upon the depot premises before he has any legal relations with such passengers, either to solicit their patronage or stand his cab upon the company's premises, without its consent. We hold this cannot be done without abolishing the right of ownership in its property possessed by the depot company. In the Donovan Case, the Parmelee Transfer Company had an exclusive contract with the depot company by which it alone could solicit business from incoming passengers or stand its vehicles upon the depot company's property at Chicago, and the court, in a most thorough and exhaustive opinion, held such contract valid — that it in no way violated public policy, or interfered with lawful competition, or was an unlawful discrimination, created a monopoly or restraint of trade, or in any way invalid. Among other things the court said, page 294 et seq.:

"`Although its functions are public in their nature, the company holds the legal title to the property which it has undertaken to employ in the discharge of those functions. And as incident to ownership it may use the property for the purposes of making profit for itself; such use, however, being always subject to the condition that the property must be devoted primarily to public objects, without discrimination among passengers and shippers, and not be so managed as to defeat those objects. It is required, under all circumstances, to do what may be reasonably necessary and suitable for the accommodation of passengers and shippers. But it is under no obligation to refrain from using its property to the best advantage of the public and of itself. It is not bound to so use its property that others, having no business with it, may make profit to themselves. Its property is to be deemed, in every legal sense, private property as between it and those of the general public who have no occasion to use it for purposes of transportation. . . .

"`It was therefore its duty to see to it that passengers were not annoyed, disturbed or obstructed in the use either of its station house or of the grounds over which such passengers, whether arriving or departing, would pass. It was to that end — primarily, as we may assume from the record — that the Pennsylvania Company made an arrangement with a single company to supply all vehicles necessary for passengers. We cannot say that that arrangement was either unnecessary, unreasonable or arbitrary; on the contrary, it is easy to see how, in a great city and in a constantly crowded railway station, such an arrangement might promote the comfort and convenience of passengers arriving and departing, as well as the efficient conduct of the company's business. The record does not show that the arrangement referred to was inadequate for the accommodation of passengers. But if inadequate, or if the transfer company was allowed to charge exorbitant prices, it was for passengers to complain of neglect of duty by the railroad company and for the constituted authorities to take steps to compel the company to perform its public functions with due regard to the rights of passengers. The question of any failure of the company to properly care for the convenience of passengers was not one that, in any legal aspect, concerned the defendants as licensed hackmen and cabmen. It was not for them to vindicate the rights of passengers. They only sought to use the property of the railroad company to make profit in the prosecution of their particular business. A hackman, in nowise connected with the railroad company, cannot, of right and against the objections of the company, go upon its grounds or into its station or cars for the purpose simply of soliciting the custom of passengers; but, of course, a passenger upon arriving at the station, in whatever vehicle, is entitled to have such facilities for his entering the company's depot as may be necessary.

"`Here the defendants press the suggestion that they are entitled to the same rights as were accorded by special arrangement to the Parmelee Transfer Company. They insist, in effect, that as carriers of passengers they are entitled to transact their business at any place which under the authority of law, is devoted primarily to public uses — certainly at any place open to another carrier engaged in the same kind of business. But this contention, when applied to the present case, cannot be sustained. The railroad company was not bound to accord this particular privilege to the defendants simply because it had accorded a like privilege to the Parmelee Transfer Company; for it had no contractual relations with the defendants, and owed them as hackmen no duty to aid them in their special calling. The defendants did not have or profess to have any business of their own with the company. In meeting their obligations to the public, whatever the nature of those obligations, the defendants could use any property owned by them, but they could not, of right, use the property of others against their consent. In maintaining a highway, under the authority of the State, the first and paramount obligation of the railroad company was, as we have already said, to consult the comfort and convenience of the public who used that highway. To that end it could use all suitable means that were not forbidden by law. In its discretion it could accept the aid or stipulate for the services of others. But, after providing fully for the wants of passengers and shippers, it did not undertake, expressly or by implication, to so use its property as to benefit those who had no business or connection with it. It is true that by its arrangement with the railroad company the Parmelee Company was given an opportunity to control, to a great extent, the business of carrying passengers from the Union Passenger Station to other railway stations and to hotels or private houses in Chicago. But in a real, substantial, legal sense, that arrangement cannot be regarded as a monopoly in the odious sense of that word, nor does it involve an improper use by the railroad company of its property. That arrangement is to be deemed, not unreasonably, a means devised for the convenience of passengers and of the railroad company, and as involving such use by the company of its property as is consistent with the proper performance of its public duties and its ownership of the property in question. If the company by such use of its property also derived pecuniary profit for itself, that was a matter of no concern to the defendants and gave them no ground of complaint.'

"All of the cases cited by respondents were decided before this pronouncement of the Supreme Court of the United States. Many of the other cases cited by appellant were decided since then and all follow the ruling in the Donovan Case. No case has been cited by the diligence of counsel or has been found by us, decided since the Donovan Case, which has laid down a contrary rule. We cannot incumber this opinion further by quotations from the numerous authorities cited by counsel for appellant, but it is sufficient to say of them that they are all in point and strongly sustain the conclusion we have reached in this case. Railroad v. Davidson, 33 Utah, 370, decided in 1908, is, however, worthy of special notice, in that it contains a most thorough reiew of all the authorities up to that time, as well as a most comprehensive and satisfactory consideration of the subject on principle.

"We therefore rule that plaintiff's contract with the Shaw Taxicab Company of May 17, 1920, is legal and valid, and that defendants have no right, without plaintiff's consent, to go upon any part of plaintiff's depot grounds or buildings or upon its Plaza, or the roadways or sidewalks thereon, described in the petition, to solicit business or to stand their cabs or vehicles thereon, except in bringing and delivering passengers and their baggage to plaintiff's station, which must be done in a proper and orderly manner, subject to reasonable rules and regulations of the plaintiff.

"III. Respondents' learned counsel does not contend that injunction is not the proper remedy if plaintiff is right on the merits of the case. That injunction is the proper remedy we have no question. [Donovan v. Railroad, 199 U.S. 279; Railroad v. Sullivan, 177 Mass. 230, and other cases cited by appellant.]

"The result is, we reverse the judgment of the lower court and remand the case with directions to enter up judgment for the plaintiff, granting it a perpetual injunction, as prayed in its petition and according to the views herein expressed."