American Tobacco Co. v. Missouri Pac. Ry. Co.

• Decision Date: 21 December 1912
• Citation: 157 S.W. 502,247 Mo. 374
• Parties: AMERICAN TOBACCO CO. et al. v. MISSOURI PAC. RY. CO. et al.
• Court: Missouri Supreme Court

157 S.W. 502

247 Mo. 374

AMERICAN TOBACCO CO. et al. v. MISSOURI PAC. RY. CO. et al.

Supreme Court of Missouri.

December 21, 1912.

Rehearing Denied December 31, 1912.

1. RAILROADS (§ 99) — GRADE CROSSINGS — SEPARATION — PUBLIC NECESSITY — DETERMINATION.

Where several railroad companies maintained and operated lines of railroad through a city and across certain streets, the expediency or public necessity for a separation of the grades so as to carry the streets over or under the tracks was a question exclusively for the city council to determine, and its determination is not reviewable by the courts.

2. RAILROADS (§ 99) — CROSSING HIGHWAYS — DUTY TO RESTORE — POWER OF STATE.

The state has power to require railroad companies to restore highways crossed by them to such condition that the free, proper, and safe use thereof by the public will not be interfered with, though such restoration may require a separation of the grades by carrying the railroad over or under the street.

3. RAILROADS (§ 99) — GRADE CROSSINGS — SEPARATION — POWERS OF CITY — CHARTER — STATUTES.

St. Louis City Charter, art 3, § 26, as amended in 1901, gives to the city power to establish, open, vacate, alter, widen, extend, pave, or otherwise improve and sprinkle all streets, avenues, and public grounds, to provide for payment of the cost and expense thereof, and to provide for grading, lighting, cleaning, and repairing the same, to condemn private property for public use, and to construct and keep in repair all bridges, streets, sewers, and drains, and to regulate the use thereof. General Welfare Clause, art. 26, par. 14, gives the city power finally to pass all such ordinances not inconsistent with the provisions of the charter, or laws of the state, as may be expedient, in maintaining the peace, good will, health, and welfare of the city, its trade, commerce, and manufactures, and to enforce the same. Rev. St. 1909, § 3049, provides that railroads may construct their roads across streets, highways, plank roads, etc., which their lines intersect, but that they shall restore the same to its former state, or to such state as not unnecessarily to impair their usefulness. Held, that the city was thereby given express power to require railroads to abolish grade crossings and to carry the streets over or under the tracks at the expense of the railroad company, whether the streets were laid out prior or subsequent to the construction of the railroad.

4. RAILROADS (§ 99) — GRADE CROSSINGS — SEPARATION — POLICE POWER — RESTRICTION.

The exercise of the state's police power to compel a railroad company to separate the grades at a crossing at its own expense when necessary to afford a proper use of a city street cannot be limited by contract for reasons of public policy, nor can it be destroyed by compromise, regardless of the consideration on which the contract rests, as it is beyond the authority of the state or of a municipality to abrogate such power so necessary to public safety.

5. RAILROADS (§ 99) — GRADE CROSSINGS — SEPARATION — DETERMINATION OF METHOD — JURISDICTION OF CITY COUNCIL.

Rev. St. 1909, § 3141, provided that every railroad corporation should construct and maintain good and sufficient crossings over public roads or town streets, then and thereafter open for public use, which crossings should be constructed in a particular manner, provided that the corporation might make the road or street pass under its railroad where the same could be done with equal convenience and safety to the traveling public. Section 3049 declared that railroad companies might construct roads across, along, or upon any street, highway, plank road, etc., which their roads might intersect or touch, restoring the same to their former condition, or to such state as not unnecessarily to impair their usefulness. Held, that a city, in the exercise of its charter or common-law power to compel a railroad to separate grade crossings, did not exhaust its jurisdiction by ordering such separation, leaving to the railroad the question as to whether it would carry the street over its tracks, or vice versa, but that the city had authority to determine such question.

6. RAILROADS (§ 99) — GRADE CROSSINGS — SEPARATION — CITY ORDINANCES — REASONABLENESS.

Certain city ordinances passed by the city of St. Louis required defendant railroad companies to depress their tracks through a certain district of the city and carry the crossed streets over the same by bridges. It was shown that if the tracks were depressed it would cause great difficulty and inconvenience to the railroad companies in operating switch tracks to manufacturing plants in the vicinity by reason of engineering problems due to the topography of the country, and, if the plans proposed by the city were carried out, the bridges provided for would only permit of three tracks each for two of the railroads, and would effectually stop the extension of their business without a complete reconstruction of the bridges. It also appeared that the cost of the work would exceed $2,000,000, and that the benefit thereof to the railroad companies, if any, would be of exceedingly short duration because of the rapid growth of the city in that direction, while it was shown that the streets could be depressed under the railway tracks at a cost not to exceed $350,000 or $400,000, and that such plan would furnish practically as free and safe a crossing for the street traffic as would exist in case the tracks were depressed, and that the method of depressing the streets would be much more beneficial to the railroad companies. Held, that the ordinances were unreasonable and oppressive and therefore void.

7. MUNICIPAL CORPORATIONS (§ 278) — CITY COUNCIL — "PUBLIC IMPROVEMENTS" — "PUBLIC WORK" — ORDER — POWER TO ORIGINATE — JURISDICTION OF CITY COUNCIL.

St. Louis City Charter, art. 6, § 1, provides that the Municipal Assembly, by ordinances recommended by the board of public improvements, shall establish such streets as may be necessary to provide public thoroughfares for free and convenient traffic. Section 14 declares that no ordinance for the construction or reconstruction of any street of the city shall be passed unless recommended by the board, and defines "reconstructing" and "repaving" to give full power and authority to reconstruct and repave by removing the foundations, curbing, guttering, and wearing surface of the roadway, or only such portions as the ordinance prescribes. Section 17 provides that the board shall recommend to the assembly all ordinances for the establishment or change of the grade of streets, and for the construction or reconstruction thereof, and for maintenance, repairing, lighting, cleaning, and sprinkling. Article 6, § 27, provides that the assembly shall have no power directly to contract for any public work or improvement, contemplated by the charter, but that the board of public improvements shall prepare and submit to the assembly an ordinance with an estimate of the cost, etc. St. Louis Rev. Code, art. 1, c. 24, § 1913, makes it the duty of the board to prepare, consider, and recommend to the municipal assembly all ordinances requiring the establishment, opening, location, and graduation of streets, and for the improvement, construction, reconstruction, repairing, and cleaning the same. Held, that a scheme for separation of railroad grade crossings, contemplating the depression of the tracks and the carrying of the streets over them on bridges, was a "public work" and a "public improvement," and hence ordinances therefor could not originate in the Municipal Assembly, and, not having been proposed by the board of public improvements, were invalid.

In Banc. Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Suits by the American Tobacco Company and the American Car Company against the Missouri Pacific Railway Company and others, and the City of St. Louis, to restrain the defendants from complying with certain city ordinances requiring the depression of the tracks of the railroads and the separation of certain grade crossings, at and in the vicinity of the intersections of the defendants' lines of railroad with Tower Grove Avenue, Park Avenue, Old Manchester Road, and certain other streets, and to enjoin the City from requiring the railroads to comply with such ordinances. The railroad companies having filed a cross-bill praying the same relief, a decree was rendered in favor of the City, from which complainants and the railroad companies appeal. Reversed and remanded, with directions to enter judgment for complainants and the railroad companies on their cross-bills.

This action was instituted in the circuit court of the city of St. Louis, in October, 1909, by the American Tobacco Company, a corporation organized and existing under the laws of the state of New Jersey, duly authorized to do business in this state, and the American Car Company, organized and existing under the laws of the state of Missouri, plaintiffs, against the Missouri Pacific Railway Company, the St. Louis, Oak Hill & Carondelet Railway Company, the St. Louis & San Francisco Railroad Company, corporations organized and existing under the laws of this state, and the City of St. Louis, a municipal corporation, defendants. The tobacco company is engaged in the manufacture and sale of tobacco; the car company is engaged in the manufacture and sale of cars for street railways; the railroad companies are common carriers of freight and passengers for hire; and the city of St. Louis exists and is controlled by a special charter. The object of the suit was to enjoin the railway companies, and each of them, from complying with or carrying out the provisions of four ordinances, Nos. 24358, 24359, 24360, and 24361, enacted by the city of St. Louis, relating to the separation of certain grade crossings, at and in the vicinity of the intersections of said defendants' lines of railroad with Tower Grove avenue, Park avenue,...