Albright v. Fisher

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSherwood
Citation164 Mo. 56,64 S.W. 106
Decision Date18 June 1901
PartiesALBRIGHT et al. v. FISHER et al.
64 S.W. 106
164 Mo. 56
ALBRIGHT et al.
v.
FISHER et al.
Supreme Court of Missouri.
June 18, 1901.

MUNICIPAL CORPORATIONS — ORDINANCE — INJUNCTION — DEPARTMENTS OF GOVERNMENT.

Const. art. 3, declares that the powers of the government shall be divided into the legislative, executive, and judicial departments, each of which shall be confined to a separate magistracy, and no person or collection of persons charged with powers properly belonging to one of these departments shall exercise any power properly belonging to the other, save in the instances permitted by the constitution. Held, that the circuit court has no authority to entertain a suit to restrain the municipal assembly of a city from passing an ordinance giving a street-railroad company a right of way in certain streets.

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

64 S.W. 107

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

64 S.W. 108
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27 practice notes
  • State ex rel. Carpenter v. St. Louis, No. 28285.
    • United States
    • United States State Supreme Court of Missouri
    • January 18, 1928
    ...act, but a high act of sovereignty to be performed only by the Legislature and being a purely legislative function. Albright v. Fisher, 164 Mo. 56; Meriweather v. Garrett, 102 U.S. 472; Bailey, Habeas Corpus, secs. 199, 251, p. 1036; Mason v. Minturn, 4 W. Va. 300; E. St. Louis v. United St......
  • State ex rel. Zoolog. Board v. City of St. Louis, No. 28361.
    • United States
    • United States State Supreme Court of Missouri
    • January 18, 1928
    ...act, but a high act of sovereignty to be performed only by the Legislature, being a purely legislative function. Albright v. Fisher, 164 Mo. 56; Meriweather v. Garrett, 102 U.S. 472; Bailey on Habeas Corpus, secs. 199 and 251, p. 1036; Mason v. Minturn, 4 W. Va. 300; E. St. Louis v. United ......
  • Missouri Electric Power v. City of Mountain Grove, No. 38630.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1944
    ...contempt for its violation. Mo. Constitution, Art. II, Sec. 9; Mo. Constitution, Art. III; 21 C.J., p. 156, sec. 137; Albright v. Bishop, 164 Mo. 56; State ex rel. v. Roach, 230 Mo. 408; State ex rel. v. Burch, 186 Mo. 205; State ex rel. v. Sullivan, 283 Mo. 546; State ex rel. v. Dreyer, 18......
  • State ex rel. Donnell v. Osborn, No. 37524.
    • United States
    • Missouri Supreme Court
    • February 19, 1941
    ...judicial or political. State ex rel. v. Stone, 25 S.W. 376, 41 Am. St. Rep. 705, 23 L.R.A. 194, 120 Mo. 436; Albright v. Fisher, 64 S.W. 106, 164 Mo. 67; State ex rel. Major v. Shields, 198 S.W. 1105, 272 Mo. DOUGLAS, J. This is an original proceeding in mandamus against the Speaker of the ......
  • Request a trial to view additional results
27 cases
  • State ex rel. Carpenter v. St. Louis, No. 28285.
    • United States
    • United States State Supreme Court of Missouri
    • January 18, 1928
    ...act, but a high act of sovereignty to be performed only by the Legislature and being a purely legislative function. Albright v. Fisher, 164 Mo. 56; Meriweather v. Garrett, 102 U.S. 472; Bailey, Habeas Corpus, secs. 199, 251, p. 1036; Mason v. Minturn, 4 W. Va. 300; E. St. Louis v. United St......
  • State ex rel. Zoolog. Board v. City of St. Louis, No. 28361.
    • United States
    • United States State Supreme Court of Missouri
    • January 18, 1928
    ...act, but a high act of sovereignty to be performed only by the Legislature, being a purely legislative function. Albright v. Fisher, 164 Mo. 56; Meriweather v. Garrett, 102 U.S. 472; Bailey on Habeas Corpus, secs. 199 and 251, p. 1036; Mason v. Minturn, 4 W. Va. 300; E. St. Louis v. United ......
  • Missouri Electric Power v. City of Mountain Grove, No. 38630.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1944
    ...contempt for its violation. Mo. Constitution, Art. II, Sec. 9; Mo. Constitution, Art. III; 21 C.J., p. 156, sec. 137; Albright v. Bishop, 164 Mo. 56; State ex rel. v. Roach, 230 Mo. 408; State ex rel. v. Burch, 186 Mo. 205; State ex rel. v. Sullivan, 283 Mo. 546; State ex rel. v. Dreyer, 18......
  • State ex rel. Donnell v. Osborn, No. 37524.
    • United States
    • Missouri Supreme Court
    • February 19, 1941
    ...judicial or political. State ex rel. v. Stone, 25 S.W. 376, 41 Am. St. Rep. 705, 23 L.R.A. 194, 120 Mo. 436; Albright v. Fisher, 64 S.W. 106, 164 Mo. 67; State ex rel. Major v. Shields, 198 S.W. 1105, 272 Mo. DOUGLAS, J. This is an original proceeding in mandamus against the Speaker of the ......
  • Request a trial to view additional results

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