State v. City of St. Louis

Decision Date25 June 1898
CourtMissouri Supreme Court
PartiesSTATE ex rel. NATIONAL SUBWAY CO. OF MISSOURI et al. v. CITY OF ST. LOUIS et al.<SMALL><SUP>1</SUP></SMALL>

In banc. Application for mandamus, on relation of the National Subway Company of Missouri and others, against the board of public improvements of the city of St. Louis and others. Writ granted.

[46 S.W. 982]

Boyle, Priest & Lehmann, S. H. King, and Jas. M. Lewis, for relators. B. Schnurmacher and Chas. C. Allen, for respondents.

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, — 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 Nos. 14,798 and 15,953, located at the southwest corner of Broadway and Olive streets, with the areaway under the building and sidewalk located at said southwest corner of Broadway and Olive streets, 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 appropriated by other wire-using companies, namely, the Bell Telephone Company of Missouri, the Kinloch Telephone Company, which companies do now 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 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, is 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 virtue of said ordinances numbered 14,798 and 15,953, a contract was entered into between your petitioner and the said defendant, the city of St. Louis, by virtue of which they possess a vested right to those parts of the streets of said city designated and set apart to your petitioner by said city of St. Louis, under and by virtue of said ordinances, and to those which the city of St. Louis, under the terms of the ordinance in question, may subsequently substitute in lieu thereof; that, by virtue of said Keyes Ordinance, the Ordinances Nos. 14,798 and 15,953 have been virtually repealed, and the passage of said Keyes Ordinance and the action taken by the city of St. Louis under and by virtue of said ordinance, as hereinbefore shown, are a violation of that provision of the constitution of the United States which prohibits `any state from passing any law impairing the obligation of a contract' [article 1, § 10]; that the taking of this right of way, to which the city gave its consent, as provided by law, to be used by your petitioners, for the uses and purposes contemplated by their charter, is a violation of that provision of the state constitution and of the constitution of the United States which says that `no one shall be deprived of his life, liberty, or property except by due process of law.' [Const. Mo. art. 2, § 30; Const. U. S. Amend. 14]. Thirteenth. And these relators would further respectfully show unto your honors that, since the granting of the alternative writ herein, each of its co-relators herein have granted, bargained, sold, assigned, transferred, and conveyed each, every, and all of their several and respective interests in the franchises, hereditaments, and property contained in and granted by said Ordinance No. 14,789 and the amendment thereto, and the subways constructed as aforesaid, to your relator the National Subway Company of Missouri." Respondents made return to the amended writ on October 21, 1897, in which they allege that Ordinances 14,798 and 15,953 are void, and that relators or any of them never at any time acquired any rights thereunder; and, for further return, they allege that the same issues are involved, and that the parties to this proceeding are the same parties or their privies who were parties to the suit of State v. Murphy, 134 Mo. 548, 31 S. W. 784, 34 S. W. 51, and 35 S. W. 1132, in which there was judgment adversely to relators, and plead the judgment rendered in that case as res judicata to this proceeding. They also deny that relators are entitled to the relief sought under the allegations in the amended writ, notwithstanding they admit all material allegations in...

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