The plaintiff brought this suit in the Circuit Court of Jackson County against the defendants to enjoin the latter from entering the Plaza in front of the Union Depot, a corporation, at Kansas City, Missouri, for the purpose of securing and discharging passengers arriving at or departing from said depot, on various railroad trains entering said depot, or departing therefrom, from and destined to all points of the United States, Canada and Mexico. The trial was before the circuit court, which resulted in a finding and a decree for the defendant, and the plaintiffs, after moving unsuccessfully for a rehearing, duly appealed the cause to this court.
The sufficiency of the pleadings are not challenged, so we will put them aside.
This case was first argued and submitted to Division One of this court, and after argument and submission it was assigned to our learned Commissioner SMALL to write. He reported that in his opinion the judgment of the lower court should be reversed with directions that the defendants should be perpetually enjoined as prayed.
There was no vote taken on the opinion in Division One, but it ordered the cause to be transferred to Court en Banc, where it was reargue and submitted, and assigned to the undersigned to write the opinion.
The facts of the case are not complicated, and are correctly stated by Judge SMALL in his Divisional opinion, which I hereby adopt as the facts of the case in Court En Banc. They are as follows:
The defendants, some thirty persons in number, are the owners of automobiles and are engaged in transporting passengers for hire to and from the plaintiff's depot in said city. The petition was filed on the 10th day of June, 1920. It shows that twelve different trunk lines of railroad enter and use plaintiff's depot in handling *Page 503 their in-going and out-going passengers and their baggage. That plaintiff owns the land upon which the Union Station and its tracks are located and also the land south of said Union Station and bordering thereon, extending from Main Street on the east to Pershing Road on the south and Broadway on the west, known as Union Station Plaza, which furnishes access to and egress from said Union Station; that plaintiff at its own cost and expense has provided such sidewalks and roadways on said Plaza as are necessary for the use of the traveling public having business with the plaintiff or the lines of railroad using said Union Station. That the land covered by said Plaza cost said plaintiff approximately $650,000, and is fairly worth one million dollars, and plaintiff has expended upon paving, sidewalks and other improvements on said Plaza $90,000, which are now reasonably worth that sum. That there are and at all times have been exclusive of the vehicles owned and operated by defendants sufficient vehicles for the transportation of passengers and baggage to and from said Union Station, which are permitted to stand upon the Plaza by the plaintiff, the owners of which observe the regulations imposed by the plaintiff and recognize the right of plaintiff to manage and control said Union Station and Plaza. That defendants and each of them assert the right to stand their automobiles upon the said Plaza and the roadways thereon and appurtenant thereto and to solicit business and otherwise to do business on the said Plaza and the roadways and sidewalks thereon and appurtenant thereto without securing plaintiff's permission, and in defiance of plaintiff's ownership of said Plaza and the regulations for the protection of the public and for the preservation of order thereon. That defendants, and each of them in pursuance of their alleged claims, have heretofore continued to and have repeatedly stood their vehicles on the Plaza and roadways thereon; have solicited business thereon in a loud and boisterous manner; have interfered with and annoyed patrons of said lines of railroad using said union *Page 504 passenger station and have committed repeated trespasses upon said Plaza and Union Station. Defendants have also taken possession of a part of said Plaza and roadways thereon in defiance of plaintiff's ownership thereof and of plaintiff's rights and have refused to surrender the possession and control thereof to the plaintiff and will continue to do so, violating the plaintiff's rights, unless restrained by an order of court, and plaintiff will thereby suffer irreparable damage. That defendants each earn large sums from the business so unlawfully transacted upon the plaintiff's property. The reasonable value of the space occupied by them exceeds $100,000. The value of the right asserted by plaintiff and sought to be protected exceeds $10,000, and plaintiff has no adequate remedy at law. The prayer is that defendants and their agents be enjoined from standing their horses, automobiles and vehicles of every kind on the said Plaza or upon the roadways thereon or appurtenant thereto and from soliciting the custom and patronage of persons or passengers upon said Plaza, sidewalks or roadways or into said station, except for the purpose of actually delivering passengers or baggage thereat and of receiving passengers and baggage for the transportation of which they shall have already received orders before coming upon said Plaza and for general relief.
The answer put the allegation of the petition in issue and alleged that ever since the Union Station was opened to the public said Plaza and the sidewalks and the roadways thereon had always been used by the public and that by reason thereof and the conduct of the plaintiff had become public roadways and public sidewalks and are now public roadways and sidewalks and are such under the laws of this State. That plaintiff is not entitled to the relief sought because it does not come into court with clean hands, in that the plaintiff and the Shaw Transfer Company, a corporation doing a taxicab business in Kansas City, Missouri, seek by this suit to set up and establish a monopoly of the taxicab business *Page 505 done to and from the Kansas City Terminal Railway Station in the State of Missouri contrary to the laws of said State.
The reply was a general denial.
The testimony of the plaintiff tended to show the facts charged in its petition to be true. There was no serious attempt to show in the evidence, and no contention is made in the brief of counsel for defendants here, that the Plaza or any of the roadways or sidewalks thereon were ever dedicated to the public, but they were used with the consent of the plaintiff as private rights-of-way for access to and egress from said Union Station by the traveling public.
The evidence of the defendant tended to contradict that of the plaintiff as to the want of decorum on the part of the defendants in soliciting business upon the Plaza and sidewalks and roadways of the plaintiff. Defendants also offered in evidence two contracts made by the plaintiff with the Shaw Transfer Company, one dated the 31st of January, 1914, by which the plaintiff granted to said Taxicab Company the right to solicit patronage for its cabs upon said Plaza and at its said Union Station, and to allow the cabs, carriages and trucks of the Transfer Company to stand and wait upon said premises of the plaintiff, provided they did not interfere with traffic in and out of said station and that they should stand at such places as might be designated by the president of the plaintiff and under such regulations as he might prescribe. Said contract further provided that the Terminal Company should take all reasonable and lawful steps to secure to the Transfer Company the enjoyment of the privilege thereby granted and would, so far as it reasonably and lawfully may, prevent the cabs, carriages and baggage trucks of any other person or corporation engaged in soliciting or handling the same business as the Transfer Company and in competition with it, from so waiting or standing upon the premises of the Terminal Company at said Union Station. This contract further permitted the Shaw Transfer Company *Page 506 to establish an office and booth inside of the Union Station for the solicitation and handling of business and to erect signs upon plaintiff's premises calling attention to the business of the Transfer Company. Under this contract, as compensation for the privileges granted, the Terminal Company was to receive thirteen per cent of the gross receipts for each calendar year in excess of $50,000, received by the Transfer Company from all passenger and baggage business done by it at the Union Station or upon the trains entering said station.
This contract was in effect for a period of five years and until the 15th of May, 1920, when a new and similar contract was entered into, leaving out the exclusive clause in the prior contract and inserting in lieu thereof the following: "Seventh, The rate of compensation to the Terminal Company provided for in Article Sixth hereof is fixed in view of the fact that the Terminal Company has not, at this time, given to any other firm, person or individual, rights and privileges similar to those herein granted to the Transfer Company, and it is agreed that should the Terminal Company hereafter do so, or should such rights and privileges hereafter be exercised or enjoyed by any person, firm or individual other than the Transfer Company, then this contract may, at the option of the Transfer Company, be cancelled on thirty days' written notice of its intention so to do. Provided, however, that nothing in this paragraph shall be construed as making the Terminal Company liable for any loss or damage which the Transfer Company might sustain by reason of the exercise by others of privileges similar to those by this contract granted to it, or make it liable for the return to the Transfer Company or any part of the compensation paid by the Transfer Company hereunder."
According to the testimony, plaintiff's share of the receipts or compensation from the Transfer Company was about $1,200 per month. The record also shows that the Shaw Transfer Company's attorney assisted in the trial of this case. *Page 507
The testimony further shows that the Union Station building is located between 23rd and 24th Streets. It fronts south on said Plaza. The front extends from Main Street about 600 feet west. The Plaza is 250 or 300 feet wide, and extends along the entire front and also for some distance east and west thereof. The Station building has two entrances for the exit and entrance of passengers in front near the center facing the Plaza. The cast entrance is about 300 feet from Main Street and the west entrance about 400 feet from said Main Street. Main Street runs north and south into the heart of the business and residence portions of the city. It is the street nearest the depot, and which is used generally by the public in going to and from the said depot.
There is a sidewalk running from Main Street adjoining the front of the Station and extending the full length thereof. South of the sidewalk is a paved roadway about eighty-five feet wide, running across the entire Plaza, and beyond that is a grass plot extending to the south line of the Plaza. Pershing Road runs along this south line, east and west.
Prior to the institution of this suit, another suit had been brought by one Skaggs, the owner of a motor car doing business for hire to and from the Union Station, to enjoin the plaintiff and the Shaw Transfer Company from interfering with him in the prosecution of his business and soliciting patronage at the Union Station. This suit was brought in the Circuit Court of Jackson County and was removed to the Federal Court at Kansas City, and upon trial in that court the injunction was denied.
Afterwards, a suit was brought in the Fall of 1918, by W.M. Corbett, president of the plaintiff, in his capacity as a Federal officer in charge of the Union Station under the Federal Administration. Said suit was similar to the present, seeking an injunction against the defendants in this case. It was brought in the United States District Court at Kansas City. Upon final hearing the relief prayed for was granted by said district court, and the *Page 508 temporary injunction against defendants from soliciting business upon the plaintiff's premises was made permanent. From this judgment the defendants appealed to the United States Circuit Court of Appeals. When the cause reached a hearing in said Court of Appeals, the Government had surrendered possession of the plaintiff's station, of which fact said appellate court took judicial notice, and without passing upon the merits of the case, held that in any event the injunction could not last longer than the time during which the Government was in possession, and ordered the district court to modify its decree so as to terminate said injunction with the termination of Federal control. The defendants obeyed said injunction while it was in force, which was only for a few months, and made no attempt to solicit patronage upon plaintiff's premises during that time. Immediately, however, after the termination of said injunction, the defendants in this case resumed their business of soliciting passengers and patronage upon the Plaza, roadways and sidewalks of plaintiff, whereupon this suit was brought by plaintiff against the defendants to again restrain them from so doing.
I. The first contention of counsel for appellant is that "neither Section 23 of Article XII of the Constitution, not any principle of the common-law, gives theDiscrimination: defendants the right to conduct theirPrivate Property for private business upon the plaintiff'sPublic Use. private property without plaintiff's consent."
This is rather a peculiar way of stating appellant's position, but I presume it must mean to convey the idea that the judgment of the circuit court resulted in taking appellant's private property without its consent, which was not authorized by Section 23 of Article XII of the Constitution, nor by any principle of the common law. Regardless of the manner of stating the proposition, this is the real legal proposition involved in this litigation.
In support of counsel's contention we are cited to *Page 509 the following authorities: R.S. 1919, secs. 9850, 9911, 9975, 9985; Christie v. Railway, 4 Mo. 453; State ex rel. v. Assoc. Press, 159 Mo. 410; Express Cases, 117 U.S. 1; Railway v. Pullman Co., 139 U.S. 79; The D.R. Martin, 11 Blatch. 233, Fed. Cas. No. 1030; Jencks v. Coleman, 2 Sumn. 221, Fed. Case No. 7258; Fluker v. Railway, 81 Ga. 461, 8 S.E. 529; Railway v. Transfer Co.,125 Ga. 677, 54 S.E. 711; Landrigan v. State, 31 Ark. 50; Railway v. Osborne, 67 Ark. 399, 55 S.W. 142; Barney v. Oyster Bay Co.,67 N.Y. 301; Dingman v. Railway, 164 Mich. 328, 130 N.W. 24; Lewis v. Railway, 36 Tex. Civ. App. 48, 81 S.W. 111; Railway v. White, 156 S.W. (Tex.) 241; State v. Steele, 106 N.C. 766; People v. Tel. Co., 166 Ill. 15.
It must be admitted that there is some conflict between the authorities upon this proposition, but some of them, as I understand the cases, proceed upon a false basis.
In either event, I do not think we should give weight to the authorities cited, as against the rulings of our own court, and besides there are decisions of many other respectable courts which have taken the same view of the law of the case as this court has. Our decisions, and those of other states which adhere to the same views as we do, proceed upon the theory that, if the contract made and entered into by and between the appellant and the Shaw Transfer Company is held valid, and should be enforced, it will create a monopoly between them as to the automobile passenger business to and from the depot.
This exact point was decided by this court in favor of the respondent in the case of Cravens v. Rodgers, 101 Mo. 247, l.c. 252-53. The following cases also decide the precise question in the same way that this court decided it in the case of Cravens v. Rodgers, supra; Kalamazoo Hack Bus Co. v. Oscar Sootsma,84 Mich. 198, 47 N.W. 667; Cole v. Rowen, 88 Mich. 219, 50 N.W. 138; State v. Reed, 76 Miss. 211, 24 So. 308; Penna. Co. v. Chicago,181 Ill. 289; Montana Union Ry. Co. v. *Page 510 Langlois, 9 Mont. 419, 24 P. 209; McConnell v. Pedigo,92 Ky. 465, 18 S.W. 15; Lucas v. Herbert, 148 Ind. 64, 47 N.E. 146; Indianapolis Union Ry. Co. v. Dohn, 153 Ind. 10, 53 N.E. 937.
But independent of that we have a constitutional provision which covers this case as completely as a glove covers the hand, namely, Section 23 of Article XII which reads as follows:
"No discrimination in charges or facilities in transportation shall be made between transportation companies and individuals, or in favor of either, by abatement, drawback or otherwise; and no railroad company, or any lessee, manager or employee thereof, shall make any preference in furnishing cars or motive power." Had this court never passed upon the question at all, this constitutional provision is so clear, complete and applicable that this court would have been firmly bound by its prohibitions.
Each of the appellants admittedly are common carriers, so are all of the defendants, and that being true, how can it be seriously contended that the Union Depot Company can discriminate in favor of the Shaw Transfer Company, and against the other twenty-eight defendants who are also common carriers of passengers and baggage for hire?
It seems to me that if any judge has any respect for his legal knowledge and oath of office, he is absolutely bound to give force and effect to that constitutional provision, regardless of the express holding of the cases before cited which hold in compliance to the views herein expressed.
When we view the cases counsel for appellant cite, they either are not binding upon this court, because the courts which rendered them are foreign, or they are based upon wholly erroneous bases, none of which should be sustained by this court.
II. There are several other interesting questions presented and discussed by counsel in their briefs, but clearly, however decided, they are subservient to the *Page 511 views herein expressed, and no good purpose would, or could, be served, by prolonging this opinion by considering them.
Finding no error in the record, the judgment of the circuit court is affirmed. Walker, J., concurs; White, J., concurs in a separate opinion, in which James T. Blair and Ragland, JJ., concur; David E. Blair, J., dissents in a separate opinion, in which Graves, J., concurs.