46 S.W. 981 (Mo. 1898), The State ex rel. National Subway Company v. St. Louis

Citation:46 S.W. 981, 145 Mo. 551
Opinion Judge:Burgess, J. --
Party Name:The State ex rel. National Subway Company et al. v. St. Louis et al
Attorney:Boyle, Priest & Lehmann, S. H. King and James M. Lewis for relators. B. Schnurmacher and Chas. Claflin Allen for respondents.
Judge Panel:Burgess, J. Sherwood, J. Gantt, C. J., Robinson, Williams and Brace, JJ., concur. Sherwood, J., expresses his views in a separate opinion. Marshall, J., not sitting.
Case Date:July 06, 1898
Court:Supreme Court of Missouri
 
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Page 981

46 S.W. 981 (Mo. 1898)

145 Mo. 551

The State ex rel. National Subway Company et al.

v.

St. Louis et al

Supreme Court of Missouri

July 6, 1898

Peremptory writ awarded.

Boyle, Priest & Lehmann, S. H. King and James M. Lewis for relators.

The questions presented for decision in this suit are quite simple. They are the following: (1) Has the city of St. Louis given its consent or permission to the National Subway Company of Missouri, its successors or assigns, to exercise the franchise granted to it by the State? (2) If it has done so, can the city, under any state of facts, or as set forth in this suit, revoke its consent, and, as expressed by counsel for respondents in the former mandamus suit, the contract being executory, in so much as the relator has only been acting under its "franchise" for about seven years, is it the duty of the city to disaffirm and annul it? R. S. 1889, secs. 2721, 2793, 1764, 1890, 2722, 2727, 2728, 2729, 2730; New York v. Squire, 145 U.S. 189; New Orleans Waterworks Co. v. La. Sugar Co., 125 U.S. 32; Day v. Green, 4 Cush. (Mass.) 438; Indianapolis v. Gas Light Co., 66 Ind. 396; Moore v. Cape Girardeau, 103 Mo. 475; Syracuse Water Co. v. Syracuse, 116 N.Y. 181; Lombard v. Stearne, 4 Cush. (Mass.) 60; Morivitz on Pr. Corp., 1129. (3) The suit of the St. Louis Underground Service Company, a company organized under the manufacturing act, against Michal J. Murphy, street commissioner, is not res adjudicata. State ex rel. v. Burkhardt, 59 Mo. 75; Enfield v. Jordan, 119 U.S. 687. (4) The ordinances are not franchises. New York v. Squire, 145 U.S. 182; New Orleans Waterworks Co. v. La. Sugar Co., 125 U.S. 32; Detroit v. Railroad, 56 F. 881; People v. Mutual Gas Light Co., 38 Mich. 154; People v. Ferry Co., 92 Mich. 522; National Foundry & Pipe Works v. Oconte Water Co., 52 F. 29; Africa v. Knoxville Co., 70 F. 733; Railroad v. People ex rel., 73 Ill. 547; Mayburg v. Mutual Gas Co., 38 Mich. 155; Railroad v. Mamow, 87 Tenn. 409; State ex rel. v. Railroad, 85 Mo. 282; Hovelman v. Railroad, 79 Mo. 628; People v. O'Brien, 111 N.Y. 1; U. S. v. Railroad, 160 U.S. 50. (4) This "grant" or "consent" can not be revoked or repealed. In the case of Africa v. Knoxville, 70 F. p. 733, Court says: "City has no power 'delegated' to it, to repeal this grant." That it can not revoke this "consent" is decided by the following cases: Marsh v. Lowery, 37 Mich. 26; Railroad v. Baldwin, 37 Leg. Int. (Pa.) 434.

B. Schnurmacher and Chas. Claflin Allen for respondents.

(1) The court ought not to permit the amended information to be filed, nor issue any amended writ thereon. (a) Amendments are matters of discretion with the court. Ensworth v. Barton, 67 Mo. 622; Chauvin v. Lownes, 23 Mo. 223; R. S. 1889, secs. 2098 and 2117; Lumpkin v. Collier, 69 Mo. 170. (b) The alternative writ of mandamus is a writ issued by the court. R. S. 1889, sec. 6811; State ex rel. v. Lewis, 76 Mo. 370. Therefore it ought not to be issued unadvisedly by the court, or on information containing improper or irrelevant or redundant matter, or matter which, if relevant, would change the cause of action. (c) The ordinance was not passed till after the final decision of this court, sitting in banc, in State ex rel. St. Louis Underground Service Co. v. Murphy, 134 Mo. 548, which declared the ordinances 14798 and 15953 void, and therefore decided that there was no contract between the city of St. Louis and the relators. N. O. Waterworks Co. v. La. Sugar Co., 125 U.S. 18; Hamilton Gaslight Co. v. Hamilton, 146 U.S. 266; DeSaussure v. Gaillard, 127 U.S. 233; Klinger v. Missouri, 13 Wall 263; Brown v. Atwell, 92 U.S. 327; Bank v. Board of Liquidation, 98 U.S. 140; Chouteau v. Gibson, 111 U.S. 200; Adams Co. v. Railroad, 112 U.S. 133. (2) This case is res adjudicata. Chouteau v. Gibson, 76 Mo. 47; Cooley's Const. Lim. 47; 2 Taylor's Evid., sec. 1513; Chouteau v. Gibson, 111 U.S. 200; Preston v. Ricketts, 91 Mo. 320; St. Louis v. Lumber Co., 98 Mo. 613; Sampson v. Mitchell, 125 U.S. 217; Chand on Res Judicata, p. 156; Forsyth v. Hammond, 17 U. S. S.Ct. 670; Cromwell v. Co. of Sac., 94 U.S. 351; Lumber Co. v. Buchtel, 101 U.S. 638; Stout v. Lye, 103 U.S. 66; Nesbit v. Independent Dist., 144 U.S. 610; Railroad v. Horton, 152 U.S. 252; Last Chance Min. Co. v. Tyler Min. Co., 157 U.S. 683. The doctrine of res judicata applies to mandamus proceedings as fully as to any other form of action. Merrill on Mandamus, sec. 315; State ex rel. v. Trammel, 106 Mo. 510.

Burgess, J. Sherwood, J. Gantt, C. J., Robinson, Williams and Brace, JJ., concur. Sherwood, J., expresses his views in a separate opinion. Marshall, J., not sitting.

OPINION

Page 982

[145 Mo. 555] In Banc.

Mandamus.

Burgess, J. --

This is a proceeding by mandamus to compel the city of St. Louis, and its board of public improvements, and the members of the board, [145 Mo. 556] viz.: Robert E. McMath, president of said board, and M. L. Holman, water commissioner; Branch H. Colby, sewer commissioner; Franklin L. Ridgely, park commissioner; Charles H. Stone, harbor commissioner and A. N. Milner, street commissioner, to take action upon plans and specifications submitted by relators to said board on February 19, 1897, "for service and supply pipes connecting manholes in the subway constructed by virtue of the terms of ordinances numbered 14798 and 15953, located at the southwest corner of Broadway and Olive street, with the area way under the building and sidewalk located at said southwest corner of Broadway and Olive street," and for a permit to do the work contemplated by the application.

The original information or petition for the writ was filed May 24, 1897, and on the same day an alternative writ of mandamus was duly issued by order of this court, directed to the respondents, made returnable June 8, 1897. The writ was duly served, and on the day that it was made returnable, to wit, June 8, 1897, respondents filed their return thereto. Thereafter on the day of , 1897, relators were granted leave to file an amended information upon which an amended alternative writ of mandamus was issued , 1897.

The alternative writ of mandamus was amended by inserting the following averments:

Twelfth. Your petitioner would further show unto this honorable court, that subsequent to the passage of the ordinances hereinbefore named, the defendant, the city of St. Louis, through its legislative authorities, passed another ordinance, known as the "Keyes" Conduit Bill (a copy of which is hereto attached and made a part hereof), under and by virtue of which certain streets and particular parts thereof, previously assigned to the National Subway Company of Missouri, its successors and assigns, have since been assigned to and [145 Mo. 557] appropriated by other wire-using companies, namely, the Bell Telephone Company of Missouri, the Kinloch Telephone Company, which companies do not occupy exclusively with their subway works the particular spaces first allotted to your petitioner, and to its detriment and injury, in that it (your petitioner) is thus prevented from fulfilling and carrying out its contract obligations with the Postal Telegraph-Cable Company assumed in good faith, based on the specific assignment of street space, previously made by the proper authorities of the city of St. Louis for the use of your petitioner (The National Subway Company of Missouri, its successors and assigns). Your petitioner would further show unto this honorable court, that under and by virtue of the ordinances hereinbefore named, and the acceptance of the conditions thereof by your petitioner, and a full and complete compliance with its terms, and the continued exercise of the privileges conveyed thereunder, involving the expenditure of large sums of money, all of which acts and expenditures it will be shown were done and made by and with the full consent of the proper municipal authorities, and under the careful and specific direction of the city of St. Louis, through its board of public improvements, your petitioner is solely and alone entitled to occupy the spaces in the streets, especially and originally assigned to it, according to maps and detailed plans and specifications filed with the city of St. Louis as a condition of the hereinbefore named ordinances, and which were duly approved by the board of public improvements in order that it (your petitioner) may carry on the work and perfect a comprehensive system of subway originally intended and designed, and of which system the part already laid at great expense by your petitioner previous to the interference of the defendant, must remain only a fragment, and utterly useless for the purposes, [145 Mo. 558] intended on account of its incomplete condition. Your petitioner further shows unto this honorable court, that under and by virtue of the ordinances hereinbefore mentioned, on the one hand the compliance on the part of your petitioner with all the terms and conditions of the ordinances in question, and on the other a full and unrestricted exercise by the city of St. Louis, the defendant, of its rights and duties thereunder, causing the expenditure in good faith of large sums of money by your petitioner, constitute an irrevocable contract, of which the ordinance known as the "Keyes" bill subsequently passed in an impairment in that, acting under its terms, the defendant has without due process of law, taken and appropriated the particular spaces in the streets originally allotted to your petitioner for its use under and by virtue of its said ordinances, and has given the spaces in the streets hereinbefore referred to, to other applicants for conduit space, retaining the right to do so under and by virtue of the aforesaid "Keyes" ordinance. Your petitioner is advised and so charges that under and by...

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