Albright v. Fisher

• Citation: 64 S.W. 106,164 Mo. 56
• Parties: ALBRIGHT et al. v. FISHER et al
• Decision Date: 18 June 1901
• Court: United States State Supreme Court of Missouri

64 S.W. 106

164 Mo. 56

ALBRIGHT et al. v. FISHER et al

Supreme Court of Missouri

June 18, 1901

Rule made absolute.

McKeighan & Watts, G. A. Finkelnburg and Dawson & Garvin for plaintiffs.

It is beyond the jurisdiction of a circuit court to enjoin the consideration or passage of an ordinance by the municipal assembly of the city of St. Louis granting a right of way over certain streets of the city for street railway purposes because the consideration and passage of such an ordinance constitute legislative acts, which a court has no power to supervise. State ex rel. v. S.Ct. Milwaukee, 105 Wis. 651; s. c., 48 L. R. A. 819; Des Moines Gas Co. v City of Des Moines, 44 Iowa 505; s. c., 24 Am. Rep. 756; New Orleans Water Works v. New Orleans, 164 U.S 481; City of Chicago v. Evans, 24 Ill. 52; Railroad v. New Orleans, 39 La. An. 127; Dillon Mun. Corp., sec. 308, note p. 387; 16 Am. and Eng. Ency. of Law (2 Ed.), 423; State ex rel. v. Bersch, 83 Mo.App. 657; State ex rel. v. Meier, 143 Mo. 445; State ex rel. v. Governor, 39 Mo. 388; State ex rel. v. Stone, 120 Mo. 433; Stevens v. St. Mary's School, 144 Ill. 351.

Clinton Rowell, Joseph H. Zumbalen, Jos. S. Laurie, Jacob Klein and Warwick M. Hough for defendants.

Injunction will not lie against the Legislature to prevent the passage of a bill, because it is a co-ordinate branch of government, entirely independent of the judiciary, and supreme in its department. This is not true of a municipal corporation, for, "the power delegated to a municipality is not, as to all subjects, absolute even within corporate limits. On the contrary, it is not only restricted by statute, but also subordinate to settled principles of law and equity, in view of which it is presumed to be delegated." Thus, while the courts have no power to declare an act of the Legislature void merely because it is unreasonable, they have such power to declare a municipal ordinance void, even when power over the subject-matter exists, if the manner of its exercise has been unreasonable and not in harmony with the general law of the land. City of Tarkio v. Cook, 120 Mo. 1; Corrigan v. Gage, 68 Mo. 541; Skinker v. Heman, 148 Mo. 349; Glasgow v. St. Louis, 107 Mo. 198; Knapp-Stout & Co. v. St. Louis, 153 Mo. 560.

SHERWOOD, J. Burgess, C. J., and Robinson, Marshall and Valliant, JJ., concur; Brace, J., concurs in the result only; Gantt, J., concurs in all except in overruling the case of State ex rel. v. Meier, and thinks this case can be distinguished from Meier's case. BRACE, J., concurring and dissenting.

OPINION

In Banc

Prohibition.

SHERWOOD J.

This litigation presents these features:

First, a temporary injunction granted by the defendant judge, on the application of James M. Carpenter et al. against Edmund Bersch et al., 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., etc.

Second, a rule to show cause, granted by the chief justice of this court directed to Daniel D. Fisher, judge, etc., et al., 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, Revised Statutes 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 29, 1899, 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, 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 and 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., 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 non-exercise, 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 toward 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 on 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 demarcation of the boundaries of their respective jurisdictions, peremptorily forbids either of such departments from passing the prohibitory...