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date. Afterward an extension of time for putting on the pas-
senger train service was ordered and a rehearing '^^ had, which
resulted in an affirmance of the first order and a direction that the
passenger train should be restored to the road on or before May
1, 1890. The railway company declined to comply with this
order, and the present proceeding was brought to compel compli«
ance with and specificcJly enforce the order of the railroad com-

The controlling question is whether the court has power to
enforce such an order of the board of railroad commissionerB.
This question has, in effect, been answered in the negative by a
decision which was made since the present action was begun:
State V. Kansas Cent. B. B. Co., 47 Kan. 497. In that case it was
held that an order of the board requiring the railroad company to
repair its track so as to promote the safety and convenience of the
public, is advisory only, and is not final and conclusive upon the
railroad company, or in the courts. The powers of the board in
the matter of requiring a railroad company to operate its road
properly and furnish sufficient passenger service are to be found in
section 5 of the act creating the board and defining its powers and
duties: Gen. Stats. 1889, par. 1328. This is the section which
was construed in the cited case, and the powers of the board with

Digitized by


280 In re Pbyob. [Eansasi

respect to the operation of the road are no greater or more ex-
tended than with respect to the making of repairs. As was there
held, the board is not clothed with judicial power, and its order
under the provisions mentioned is not final and conclusive; nor
has any legislative provision ever been made for the specific en-
forcement of such orders by mandamus or other judicial proceed-
ing. The statute, instead of providing for the enforcement of
such an order when compliance is refused, merely directs the board
to make a report of its proceedings and decision ^^^ to the gov-
ernor. Following that decision, it must be held that the state is
not entitled to the relief which is asked, and therefore the per-
emptory writ will be denied.

Allen, J., concurring.

Martin, C. J., having been of counsel, did not sit in the case.

In State v. Kansas etc. R. R. Oo., 47 Kan. 497, 505, the coansel rep>
leeenting the state on an original proceeding in mandamus made '*a
very able argument" to establish that, within the police power, the
state had ample authority to compel the repair of any railroad, so that
it might be operated safely for the public. But this argument, althonsh
considered "strong and ingenious,^' was held inapplicable, because the
legislature had neither conferred nor attempted to confer, the power
claimed, even if it had authority so to do. The result of the bitter leg-
islative contention over the matter was that advisory action only, on
the part of the railroad commissioners, was provided for. Hence, it
was held, in the case cited, that an order or recommendation of the
board of railroad commissioners of the state to a railroad company, re-
quiring repairs to be made upon its road or track, to promote the se-
curity, convenience, and accommodation of the public, was merely
advisory, and not final or conclusive upon the railroad oompany or in
the courts.

In re Pryor.

[65 KAHtAS, 721]

SUPPLY OF GAS.— A city of the third class can exercise only such
powers as are granted in express terms or by necessary impUcatlon.
Hence, in the absence of legislative authority, it has no power to reg-
ulate the price at which natural gas shall be furnished to private con-

OF GAS— HABEAS CORPUS.— If a company contracts with a city
of the third class to supply it with gas, no rate being flxed« further
than that it shall not charge the city more than one dollar per one
thousand cubic feet of gas for lighting public buildings, and It after-
wards, with the consent of the city, assigns its contract, upon condi-
tion that private families shall be furnished at not to exceed two
dollars and fifty cents per stove per month, and forty cents per burner

Digitized by


July, 1895.1 Ih bx Pbtob. 281

for fflnmiiiatiiiff pnrpoiet, a mibBeqiient ordinance, making It unlaw-
ful for any person, firm, or corporation to charge anything for natural
gas in excess of the prices therein fixed, they being mnch lower than
those named in the assignment, and lower than those collected from
consumers, is Inoperatiye and void as to such assignees, so far as It
purports to establish prices for gas furnished by them to private con-
sumers. Hence, if the assignees are Imprisoned for violating such an
ordinance, they are entitled to discharge on habeas corpus.

Habeas Corpus. In July, 1886, Ida, a dty of the third class,
granted to the lola Oas and Coal Coifipany, its successors and as^
signs, the right to lay gaspipes and mains in the streets and publio
grounds, for the purpose of supplying the city and its inhabitants
with gas. This ordinance, by virtue of its own provisions, and
acceptance thereof, became a contract between the city and the
company for the supply of gas. No rates were prescribed, except
that the company should not charge the dty more than one dollar
per one thousand cubic feet of gas for lighting the public build-
ings. In May, 1889, the company, with the assent of the city, as-
signed its rights and interests to W. S. Pryor and Joseph Paullin,
upon condition that they should furnish private families with gas
at a rate not exceeding two dollars and fifty cents per stove per
month and forty cents per burner for illuminating purposes.
Pryor & Paullin furnished natural gas to the city and its inhabi-
tants for several years at contract rates. Finally, in May, 1896,
the dty by ordinance, enacted that it should be unlawful for any
person, firm, or corporation furnishing gas in said city to charge
anything in excess of the prices therein fixed, which were very
much lower than those named in the assignment, and lower than
those collected from consumers. It was also declared unlawful
for any person to make collections for gas furnished without filing
a written acceptance of the conditions of the ordinance. Pryor
ft Paullin did not file any such acceptance, and they had no com-
petitor in the business. Pryor was convicted before a police judge
and fined in the sum of thirty dollars and costs, and ordered com-
mitted to the dty prison until the fine and costs should be paid, for
aviolationof suchordinance,in collecting from one person one dol-
lar and fifty cents for each of the months of June and July, 1896,
for supplying a No. 8 cook-stove, when the ordinance allowed only
one dollar per month. He claimed that his imprisonment was un-
lawful, and sought discharge by an original proceeding on habeas

C. E. Benton and Campbell ft Hawkins, for the petitioner,

H. A. Ewing, for the respondent.

Digitized by


282 In bb Pbyob. [Eansu,

**• MARTIIT, C. J. The only question arising npon the
record is whether the city of lola had authority to fix tiie rates
to be charged for natural gas furnished to priyate consumers by
Piyor ft Faullin under the circumstances aboye stated. In this
country, municipal corporations (except the city of Washington)
are the creatures of the states in which they are located. They
derive their powers from the constitution and '^^ the statutea.
In Anderson v. Wellington, 40 Kin. 176, 10 Am. St. Eep. 175,
this court has said: "The power to pass a city ordinance must be
vested in the governing body of the city by the legislature in ex-
press terms, or be necessarily or fairly implied in and incident to
the powers expressly granted, and must be essential to the declared
purposes of the corporation — not simply convenient, but indis-
pensable Any fair and reasonable doubt concerning the

existence of the power is resolved by the courts against the cor-/
poration, and the power is denied^': See, also, 1 Dillon on Munic-
ipal Corporations, 4th ed., sec. 89.

The act providing for the organization and government of citiea
of the third class contains no express grant of power to fix or regu-
late the prices of gas, water, or any other article of necessity or
luxury. General authority is given to enact ordinances for the
good government and welfare of the city (Gen. Stats. 1889, pars.
958, 991), and such cities may provide for and regulate the light-
ing of streets, and they have power to make contracts with any per-
son, company, or association to erect gasworks, with the privilege
of furnishing gas to light the streets, lanes, and alleys of the city
for any length of time, not exceeding twenty-one yeais: Gen.
Stats. i889, par. 984.

The respondent relies principally upon a section of the corpora-
tion law of 1868 relating to gas and water corporations, and pub-
lished as paragraph 1401 of the General Statutes of 1889, which
reads as follows: "Any gas or water corporation shall have full
power to manufacture and sell and to furnish such quantities of
gas or water as may be required by the city, town, or village where
located, for public or private buildings, or for other purposes; and
such corporation shall have power to lay pipes, mains, and con-
ductors for conducting gas or water through the streets, lanes,
alleys, and squares in such city, town, or village, ^*® with the con-
sent of the municipal authorities thereof, and under such regula-
itons as they may prescribe/'

Certainly there is no express power conferred upon the munici-
pal authorities by this section to regulate the price of gaa or witeTi

Digitized by


July, 1896.] In be Pbyob.

Whether they might, as a conditioD of their ooxiBent, provide thai
gas or water should be famished to the dty or to its inhabitants at
not exceeding certain prescribed rates, we need not now inquire.
Ck>nsent was granted by ordinance No. 268 to the lola Gas and
Coal Company, its successors and assigns, without annexing any
condition as to rates, except that no more than one dollar per one
thousand cubic feet of gas should be charged for lighting the
public buildings.

In certain cases the state may fix and regulate the prices of com-
modities and the compensation for services, but this is a sovereign
power, which may not be delegated to cities or subordinate subdi-
viflionsof the state, except in express terms or by necessary implica-
tion. Nosnch power is expressly conferred upon cities of the third
class,and wedo not think the right can be implied from any express
provision, unless possibly that in the grant of consent to any per-
son or corporation so to use the streets and public grounds of
the city a condition might be imposed as to the maximum rates
to be charged.

In Louisville etc. Gas. Go. v. State, 188 Ind. 49, it was held
that municipal corporations of Indiana have no power at com-
mon law to fix by ordinance the price at which natural gas shall
be supplied to consumers, and that the act of March 7, 1887, pro-
viding ''that the boards of trustees of towns and the Common
council of cities .... shall have power to provide by ordinance
reasonable regulations for the safe supply, distribution, and con-
sumption of natural gas within '^^ the respective limits of such
towns and cities,** does not confer the power to regulate the price
at which natural gas shall be furnished: Overruling the case of
Rushville v. Rushville etc. Gas Co., 132 Ind. 675. In the opinion
the court says: ''To secure the safe supply and use of natural
gas is one thing, and to fix the price at which gas shall be sup-
plied is another and a different thing.*'

In St. Louis V. Bell Telephone Co., 96 Mo. 623, 9 Am. St. Rep.
370, it was held that neither under its authority to regulate the
use of streets, nor the power to license, tax, and regulate various
professions and businesses nor the general welfare clause permit-
ting the passage of all such ordinances not inconsistent with the
provisions of the charter or the laws of the state as may be
expedient in maintaining the peace, good government, health,
and welfare of the city, its trade, commerce, and manufactures,
can the city of St. Louis regulate by ordinance the tariff of
charges of a telephone company. In the opinion the court says:
"We are at a loss to see what this power to regulate the use of

Digitized by


284 In bk Pbyob. [KanaM|

Ihe fizeeia liis to do with the power to fix tdephone ehaiget.
The power to regulate the charges for telephone aervioe ie neither
included in nor incident to the power to regulate the nae of
ftreets, and the ordinance cannot be upheld on any such grounds.''

Under the section of our statute hereinbefore fully quoted,
a gas or water company may lay its pipes and mains through
the streets of a dty only with the consent of the municipal
authorities, and under such regulations as they may prescribe;
but the regulations are only as to the laying of pipes and mains,
and haye nothing to do with the price of the gas or water
passing through the pipes and supplied to consumers.

''^^ Counsel for the respondent cites the leading case of Munn
T. Illinois, 94 XJ. 8. 118, and others of like character, to the
effect that where the owner of property deyotes it to a use in
which the public haye an interest, he must, to the extent of
the interest thus acquired by the public, submit to the control
of such property by the public for the common good. But in
these cases the control was exercised by the legislature either
directly or through municipalities or agencies clothed by it
with the power. In the present case, the legislatiye authority is
wanting. We must therefore hold that said ordinance No. 368
is inoperatiye and yoid as to said Pryor & Faullin, their heirs
and assigns, in so far as the same purports to estabb'sh the price for
gas furnished by them to priyate consimiers.

The petitioner will be discharged from custody.

All the justices concurring.

TJLATE PRICE OF GAS.— Cities have suoh powers only as are con«
ferred by the statute creatine them, and sach incidental powers as
are implied by, and essential to, the accomplishment of the pur-
poses of their creation, and for their continued existence: Champer ▼•
Greencastle, 138 Ind. 339; 46 Am. St. Rep. 890; Mauldin y. City
Council, 42 S. C. 293; 46 Am. St. Rep. 723; Whiting v. Town of West
Point, 88 Ya. 905; 29 Am. St. Rep. 750. A city, when acting in its
private capacity as contradistinguished from its governmental capacity,
IS bound by its contracts, and may be estopped by the conduct of its
proper officers when actins within the lawful scope of their powers:
Gregaten v. Chicago, 145 III. 451 ; 36 Am. St. Rep. 496. If a city passes
an ordinance granting to a gas company the privilege of manufacturing
and supplying gas, and also fixing the maximum price thereof, upon
the acceptance of the ordinance by the gas company, the city cannot
subsequently reduce the price of gafl below that fixed by the ordinance t
State V. Laclede Gaslight Co., 102 Mo. 472; 22 Am. St. Rep. 789.

HABEAS CORPUS is always available, where a judgment in a crim-
inal case is involved, to inquire into the jurisdiction of the person and
subject matter; State v. Kmmore, 54 Minn. 135; 40 Am. St. Rep. 80K.

Digitized by







(M Knnracrr, L]

parte with their poeeeeelon for a iMirticular purpoee, and he who re*
celree eoch poeseeeion avowedly for that purpoee hae a fraudulent
Intention to make nee of the poBeesslon as a means of converting the
goods to his own use, and does so convert them. It Is laioenj. In soch
case the question of Intent Is for the Jury.

agieement to renovate and return goose feathers, procures them from
the owner with the felonious Intention of converting them to his own
use, and returns other feathers fan their place worth comparativelj
nothing, is guilty of larceny.

LABCBNT— BVIDBNCB.— On a trial for larceny of goose feath«
era, by obtaining them under an agreement to renovate and return
them, and returning worthless feathera in their place, evidence that
defendants were guilty of other similar transactions Is not admissible;
but evidence that about the time of such transaction the defendants
were shipping large lots of goose feathera, and receiving worthless
feathera In return. Is admissible.

W. J. Hendrick, attorney general, and 8. T. Spalding, for the

• HAZFJiRIQG, J. The indicbnent charges the appellees
with the crime of grand larceny, committed in manner and form
as follows, to wit: ""The said J. D. Williamson and J. S. Lawrence,
in the eaid county of Marion, on the second day of Febmazy, A. D.
1894^ and before the finding of the indictment herein, did, unlaw-
fnUy and fdonionsly, confederate and conspire, and did feloni-
ously take and steal and carry away from the possession of Taylor
Abell and Josie IL Abell one hundred and fifty pounds of feathers,
not their own, or the property of either of them, bat the property
«f the eaid Taylor Abell and Josie IL Abell, and of the value of

Digitized by


286 Commonwealth v. Williamsoh. [Eentackj,

oixty dollars, and all done with the felonions intent to conyert
them to their own use, contrary/' etc. The appellees pleaded
not guilty, and npon the trial of the case, at the conclusion of
the testimony for the commonwealth, the court gave a peremptory
instruction to the jury to find for tiie defendants, and the com-
monwealth has appealed.

* The proof shows that the appellees came to the house of the
Ahells, and, representing themselves as feather renovators, pro-
cured a number of beds then filled with goose feathers, which they
agreed to renoyate, make into mattresses, and retiim to the Abells.
The same feathers were to be returned. The feathers taken
weighed one hundred and forty-two pounds, and were worth
thirty cents per pound. The appellees shortly returned the mat-
tresses, and after leaving the house the Abells found, upon exam-
ination, that the mattresses had been filled with chicken and
turkey feathers, worth comparatively nothing. It is insisted
for the state that the peremptory instruction should not have been
given, and such is our opinion.

In Elliott v. Commonwealth, 12 Bush, 176, the law on the
subject is thus stated: 'If the owner of goods parts with the pos-
session for a particular purpose, and the person who receives the
possession avowedly for that purpose has a fraudulent inten-
tion to make use of the possession as the means of converting the
goods to his own use, and does so convert them, it is larceny. But
if the owner intends to part with the property, and delivers the
possession absolutely, and the purchaser receives the goods for the
purpose of doing with them what he pleases, it is not larceny, al-
though fraudulent means may have been used to induce him to
part with them."

It follows that if, when the appellees procured the goose
feathers, they did so with the intention of feloniously convert-
ing them to their own use, they are guilty as charged, and their
intention was a question of fact to be ascertained by the jury.
These * principles seem to be well established: 2 EusseU on
Crimes, 21, 24; Wharton's American Criminal Law, 631-636.

We do not think that the testimony offered by the state show-
ing transactions between appellees and others similar in character
to the one under consideration was competent, but the proof of the
agents of the express company that the appellees, about the time
of the transaction in question, were shipping large lots of goose
feathers to Louisville and receiving chicken feathers in return,
^eems clearly competent. The ownership and possession of the

Digitized by


Bept 1894] Smith v. Commonwealth. 287

articIeB thus shipped formed the yery subject matter of dispute
and inyestigatioxL

For the reasons indicated^ the court should not hare withdrawn
from the juiy the consideration of the case^ but have submitted
the proof with instructions in accord with the law as indicated

One to whom personal property is delivered for ii special purpose, but
who intended, when he procured sach delivery, to appropriate the prop-
erty to his own use^ is guilty of larceny ; Soitau v. Gerdau, 119 N. Y.
380; 16 Am. 8t. Rep. 943, and note; State v. McCord, 2 Nott. d McO.
90 ; 10 Am. Dec. 576 ; State v. Humphrey, 32 Vt. 569 ; 78 Am. Dec. 605^
and note. See, also, the extended note to State v. Holmes, 57 Am, Dec*
280, and Smith v. Commonwealth, 96 Ey. 85; post, p. 289, and note.

Smith v. Commonwealth.

[96 Kentucky, 85.]


obtained, a subsequent appropriation of it is not larceny unless
the Intent to appropriate It existed in the mind of the talker at the time
it came into his hands.

LARCBNY— HORSB STEALING.— One who obtains possession
of a horse as bailee is not guilty of larceny in afterwards selling it
and convortin<» the proceeds to his own use, unless the intent to thus
appropriate it existed at the time he obtained possession.

C. A. Board, for the appellants.

W. J. Hendrick, attorney general, for the appellee.

s^ QUIGLEY, C. J. Appellants, Elmer Smith and Morgan
Ooddard, were indicted in the Harrison circuit court for horse
stealing. ®* They were tried, found guilty, and sentenced to con-
finement in the penitentiary each for four years. The allegations
of the indictment under which they were found guilty read as fol-

'The said Elmer Smith and Morgan Goddard, on the day

of NoTember, 1893, in the county and state aforesaid, and before
the finding of this indictment, did feloniously combine, confeder-
ate, and conspire to and did feloniously steal, take, and carry
away a horse, to wit^ a mare, the persond property of L. S. Bur-
gees, with the felonious intent to convert the said mare to their
own use, and to deprive the said owner thereof.''

It appears from the evidence that appellants resided in the
town of Sadieville, Harrison county, Kentucky, and that L. Sw

Digitized by


288 Smith v. Commonwealth. [Kentucky,

BnrgeflB, a farmer, resided near said town, and that during tha
summer and fall of 1893 both Ooddard and Smith had been work-
ing for said Burgess; also, that in August or September, 1893,
appellant Morgan Ooddard contracted with said Burgess to raise
a crop for him, on his, the said Burgees' farm, during the year
1894, and wanted the use of a horse. Burgess said to Gk)ddard:
^ haye a horse that has the fistula; you take it and use it as you
please, pay for its pasturage, keep it shod, treat it for the fistula,
and return it to me in the spring/'

In November, 1893, Ooddard procured a buggy, hitched the
horse to it, and droye to Cynthiana. It was county court day.
Elmer Smith, a lad sixteen or seyenteen years of age, also went to
Cynthiana, where he met Ooddard. Thej got drunk, concluded
to go to Cincinnati, and put up the horse and buggy ^ for sale on
the public street, and sold them for twenty-one dollars. They
went to Cincinnati and returned to Sadieyille the latter part of
the same week. Appellants' motions in arrest of judgment and
for a new trial were oyerruled, to which they excepted, as well as
to the instructions giyen and refused by the court

Appellants asked the court to giye to the jury the following
instructions, which the court refused to do: 'The court instructs
the jury that to find the defendants guilty of larceny they must
belieye that, at the time the defendant Ooddard obtained pos-
eession of Burgess' horse, he must then haye had the purpose and
intent to convert the property to his own use and benefit and to
deprive the ownar of his property feloniously; that unless the
felonious intent was proven at the time of the taking of the horse,
the kw is for the defendant, and the jury will so find"; 2. The
•court instructs the jury that the felonious intent must exist at the
time of the taking, and that no felonious intent subsequent or
wrongful conversion will amount to a felony.''

The general and common-law rule is, that when property comes
lawfully into the possession of a person, either as agent, bailee,
part owner, or otherwise, a subsequent appropriation of it is not

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