Albright v. Fisher

Decision Date18 June 1901
Citation164 Mo. 56,64 S.W. 106
PartiesALBRIGHT et al. v. FISHER et al.
CourtMissouri Supreme Court

In banc. Prohibition by T. E. Albright and others against Daniel D. Fisher, judge of the circuit court of St. Louis, and others, to prohibit an injunction restraining the municipal assembly of St. Louis from passing an ordinance granting a street railway a right of way in certain streets. Rule nisi made absolute.

McKeighan & Watts, G. A. Finkelnburg, and Dawson & Garvin, for plaintiffs. Clinton Rowell, Jos. H. Zumbalen, Jos. S. Laurie, Jacob Klein, and Warwick M. Hough, for defendants.

SHERWOOD, J.

This litigation presents these features: First. A temporary injunction granted by the defendant judge, on the application of James M. Carpenter and others, against Edmund Bersch and others, all members of the municipal assembly of the city of St. Louis, including the presiding officers of both houses of said assembly, restraining such members in their official capacity from considering, passing, or adopting, or taking any further action upon or in relation to, council bill No. 44, for an ordinance to be entitled as follows: "To authorize the St. Louis & Suburban Railway Company to extend its lines and to construct, maintain, and operate its railway on, along, and across certain streets, alleys, city blocks, and public places in the city of St. Louis," etc. Second. A rule to show cause, granted by the chief justice of this court, directed to Daniel D. Fisher, judge, etc., and others, commanding them to appear before this court, and to show cause, if any they have, why a writ of prohibition should not issue against them, as prayed in the petition of plaintiffs herein. Third. A return to the rule made by the respondent judge, asserting his jurisdiction to grant the injunction complained of under and by virtue of the authority and discretion vested in him by the constitution and laws of this state, and more particularly by section 3647, Rev. St. 1899. Fourth. A like return to such rule by Carpenter and other defendants, in which they assert, among other things, that the rule nisi should be discharged, for the reason that "under and by authority of an act of the general assembly of this state entitled `An act prohibiting the city council or board of trustees of any incorporated city from granting the right to lay down railroad tracks in any street of the city, except upon the petition of owners representing more than one-half of so much of the frontage of the street as is sought to be used for such purposes,' approved April 27, 1899 (Laws 1899, p. 105), and under and by virtue of an act of the general assembly of this state entitled `An act to revise and amend chapter 155 of the Revised Statutes of Missouri, 1889, and amendatory, acts thereof, entitled "Street Railroads,"' approved June 19, 1899 (Laws 1899, p. 374), the municipal authorities of the city of St. Louis, and the municipal assembly of the city, which these defendants say is composed of the persons who are named in the petition in said cause of Carpenter and others against Bersch and others as defendants, have no power or authority to grant to any street-railroad company the right or franchise to construct, maintain, or operate any street railroad over, along, or across any street within the city of St. Louis, except upon the petition of the owners of the land representing more than one-half of the frontage of that part of such street sought to be used for street-railroad purposes; and when the street, or parts thereof, that is sought to be so used, shall be more than one mile in extent, the petition of landowners shall not be valid unless the same is signed by more than one-half of the persons owning property fronting on such street for each mile or fractional part of a mile of each street so intended to be used, in the total length of such proposed street railroad, and that such petition of such owners is thus made a condition precedent to the exercise of such power. And these defendants say that they are the owners of the property described in their petition fronting on Lawton avenue, and that said property is used by them in the manner described in their said petition, a copy of which is embodied in the petition of the plaintiffs in this proceeding, as well as in the preliminary writ of prohibition herein. And these defendants further say that in and by the council bill No. 44, mentioned in their said petition, and in the petition of the plaintiffs in this proceeding, it is proposed to give and grant unto said company the right, license, and franchise for the period of fifty years to construct, maintain, and operate a street railway on Lawton avenue along and in front of the properties of these defendants situated on said street, and thereby to enter into a contract with said company giving and granting to it such right, franchise, and privilege for said period; that the said St. Louis & Suburban Railway Company is a street-railway company in the city of St. Louis, organized long before the passage and approval of the acts of the general assembly above mentioned, and that said company has not now any right, license, or franchise to construct, operate, or maintain a street railway on said Lawton avenue; that said Lawton avenue is a public street and highway in the city of St. Louis, and was formerly known as `Chestnut Street' in said city. And these defendants say that neither they, nor any of the other owners of property abutting upon and fronting on said Lawton avenue, have ever signed any petition to the municipal assembly of the city of St. Louis, or either branch thereof, for such street railway on said street," etc. To each of these returns, respectively, there were general demurrers filed, to the effect that neither of said returns stated facts sufficient to constitute any legal reason why the preliminary rule should not be made absolute.

These returns, and the demurrers thereto, write down this question upon the record: Did the circuit court have jurisdiction to enjoin the municipal assembly of the city of St. Louis from enacting the proposed ordinance? The question thus propounded must have its answer in either a direct affirmance or direct denial of the existence of such judicial power; a power pure, simple, and abstract, having no connection whatever with the incidents and consequences attendant on or flowing from the exercise or nonexercise of such power. In order to determine whether such judicial power, to wit, jurisdiction, exists in any particular instance, the initial step in the pathway of inquiry must be directed towards the fountain head of all authority, the fundamental law of this state, article 3 of which declares: "The powers of government shall be divided into three distinct departments — [the legislative, executive and judicial] — each of which shall be confided to a separate magistracy, and no person, [or collection of persons], charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances [in this constitution] expressly directed or permitted." The changes which have occurred in this article since the constitution of 1820 was adopted have been bracketed in the article just quoted, and, as will be readily seen, serve to give emphasis to its former provisions and prescriptions. This charter of authority, as is apparent at a glance, carefully divides the powers of government into three distinct and named departments; sedulously segregates each from the other; confides each to a separate magistracy; and then, not satisfied with such strict demarkation of the boundaries of their respective jurisdictions, peremptorily forbids either of such departments from passing the prohibitory precincts thus ordained by the exercise of powers properly belonging to either of the others, and then concludes by giving the sole exception to the unbending rule by saying, "except in the instances in this constitution expressly directed or permitted." So that, in determining in any given case whatsoever whether one of those departments has broken the close of its neighbor by trespassing over the appointed governmental lines or corners, the only method of procedure — the only test — to ascertain the truth of the matter thus in controversy is to industriously examine the other portions of the organic law, to see whether or not such seeming trespass is in reality not a trespass by reason of the pregnant and predominant fact that it is by the constitution "expressly directed or permitted." Lacking such express direction or express permission, the act done must incontinently be condemned as unwarranted by the constitution; in short, a clear case of clausum fregit, and of a trespasser ab initio. And it is obviously the bounden duty of him who justifies the seeming trespass to point out — to place his finger on — the very identical provision of the constitution on which he relies to support his plea of justification; and, unless this can be done, he stands...

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