American Tobacco Company and American Car Company v. Missouri Pacific Railway Company

Decision Date31 December 1912
Citation157 S.W. 502,247 Mo. 374
PartiesAMERICAN TOBACCO COMPANY and AMERICAN CAR COMPANY, Appellants, v. MISSOURI PACIFIC RAILWAY COMPANY et al., Appellants, and CITY OF ST. LOUIS, Respondent
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Reversed and remanded (with directions).

Boyle & Priest and W. B. & Ford W. Thompson for appellant, Tobacco Company and Car Company.

(1) The power and authority given to the city of St. Louis under sec 3141, R.S. 1909, for the separation of the grade crossing at Tower Grove avenue, was fully executed in the action of the Board of Public Improvements in recommending the depression of Tower Grove avenue, in accordance with House Bill 529. (a) Because the provisions of said bill were adopted and approved by the defendant railroads in this case, who appeared before the Board of Public Improvements, through their agents, and accepted the provisions of said bill, and agreed to pay all the cost and expense of the depression of the tracks in accordance with the provisions of said bill. (b) Because the said bill was approved and ratified by the owners of all the property adjacent to the crossing of Tower Grove avenue to the extent that said property holders waived all damages accruing to them by the change of the grade of all the streets affected. (c) Because the railroads expended the sum of $ 30,000 in acquiring the property injured and damaged on the proposed subway, and secured the consent and waiver in writing of all the property holders over the line of the proposed subway, who were injured and damaged by reason of the change of grade. R.S. 1909, sec. 3141; Powell v Railroad, 215 Mo. 339. (2) The city of St. Louis had no power to pass any of the ordinances requiring a depression of the railroad tracks after a notice had been given to the Board of Public Improvements by the railroad companies that they elected to change the grade of the crossing at Tower Grove avenue and to make such street pass under the said railroads. R.S. 1909, sec. 3141. Powell v. Railroad, 215 Mo. 339; Jones v. Seligman, 81 N.Y. 190; Wademan v. Railroad, 51 N.Y. 568; Clarke v Railroad, 18 Barb. 350; Wademan v. Railroad, 51 N.Y. 568; Wheeler v. Railroad, 12 Barb. 227; Beardsley v. Railroad, 20 N.Y.S. 458, 142 N.Y. 173; Van Wagner v. Railroad, 30 N.Y.S. 165. (3) The ordinances for the depression of the tracks at Tower Grove crossing are mutually connected and dependent on each other, and were intended as one complete scheme, and if any one could not be carried into effect, then all of the ordinances which were dependent, or conditional, or connected with one another, must fail. St. Louis v. Railroad, 14 Mo.App. 225; St. Louis v. Railroad, 89 Mo. 44; Warren v. Charlestown, 2 Gray, 84; Allen v. Louisiana, 103 U.S. 84; Hannibal v. Tel. Co., 31 Mo. 32; Austin v. Murray, 16 Pick. 121; Dillon on Municipal Corporations (3 Ed.), sec. 421; Commonwealth v. Hutchins, 5 Gray, 482; Commonwealth v. Stoddart, 2 Cush. 562; Municipality v. Morgan, 1 La. Ann. 111; Commonwealth v. Dow, 10 Metc. 382; Rogers v. Jones, 1 Wend. 237; Sheldon v. Meyer, 30 Ala. 540; Thomas v. McVernon, 9 Ohio 290; Grant on Corporations, 88. (4) The ordinances are void because they are in violation of the different provisions of the charter of the city, which require that all such ordinances in regard to all street improvements and all public works shall emanate from the Board of Public Improvements and shall be recommended to the Municipal Assembly for passage by said board. City v. Gleason, 89 Mo. 67, 93 Mo. 33; Railroad v. Campbell, 62 Mo. 365; Dillon on Municipal Corporations, secs. 245-604; Ellis v. Railroad, 51 Mo. 200; St. Louis v. Franke, 78 Mo. 41; Bambrick v. Campbell, 37 Mo.App. 464; Construction Co. v. Geist, 37 Mo.App. 507; State v. Butler, 178 Mo. 317; Verdin v. City of St. Louis, 131 Mo. 26; Charter, art. 4, secs. 3, 33, 4; Ibid., art. 6, secs. 1, 27, 14-19; State ex rel. v. St. Louis, 161 Mo. 371; Cole v. Skrainka, 37 Mo.App. 427, 105 Mo. 303; Telephone Co. v. Los Angeles, 211 U.S. 280. (5) The ordinances in this case are made up of unwarranted, unfriendly and unjust discriminations against the railroads and the industries involved, and are unreasonable and oppressive. Corrigan v. Gage, 68 Mo. 541; St. Louis v. Weber, 44 Mo. 547; Cape Girardeau v. Riley, 72 Mo. 220; Kelly v. Meeks, 87 Mo. 401; Morse v. Westport, 110 Mo. 502; Warren v. Paving Co., 115 Mo. 580; St. Louis v. Russell, 116 Mo. 258; Tarkio v. Cook, 120 Mo. 9; Halpin v. Campbell, 71 Mo. 493; Plattsburg v. Riley, 42 Mo. 22; Hannibal v. Tel. Co., 31 Mo.App. 32; White v. Railroad, 44 Mo.App. 540; James v. Pine Bluff, 49 Ark. 205; Waters v. Leech, 3 Ark. 110; Commissioners v. Gas Co., 12 Pa. St. 318; Ex parte Whitwell, 98 Cal. 73; St. Paul v. Laidler, 2 Minn. 190; Mankato v. Fowler, 32 Minn. 364; State Center v. Barenstein, 66 Iowa 249; St. Louis v. Packing Co., 141 Mo. 375; Chaddock v. Day, 75 Mich. 527; Mason City v. Barngrover, 26 Ill.App. 296; Kip v. Patterson, 26 N.J.L. 298; Crawford v. Topeka, 51 Kan. 756; Bank v. Sarlls, 129 Ind. 201; Mayor v. Dry Dock Co., 133 N.Y. 104; Railroad v. Mayor, 47 N.J.L. 286; Nicoulin v. Lowery, 49 N.J.L. 391; Railroad v. Springfield, 85 Mo. 674; Railroad v. Jersey City, 47 N.J.L. 286; State ex rel. v. Birch, 186 Mo. 219; St. Louis v. Theatre Co., 202 Mo. 699.

Martin L. Clardy, Henry G. Herbel, W. F. Evans, E. T. Miller and Robert T. Railey for appellant railway companies.

(1) The city of St. Louis was authorized neither by the Constitution the statutes of this State, the common law, nor its own charter, to pass any ordinance requiring a railroad company to abandon its legitimate right of way upon the surface of the street, and to depress its tracks, as was attempted to be done by the passage of ordinances 24358 to 24361, inclusive. If it becomes necessary to separate the grade crossings at Tower Grove avenue and the other streets in controversy, the defendant railway companies have the legal right to determine for themselves whether said streets shall pass under or over their tracks, and the city of St. Louis has no legal authority, by ordinance or otherwise, to require them to depress their tracks without their consent. Laws 1885, pp. 87 and 88; Sec. 2609, R.S. 1889; Secs. 1035, 1103, R.S. 1899; Secs. 3049, 3141, R.S. 1909; Van Note v. Railway, 70 Mo. 641; Turner v. Railway, 78 Mo. 578; Terry v. Railway, 89 Mo. 586; Powell v. Railway, 215 Mo. 358; Pratt v. Railway, 139 Mo.App. 511; Regina v. Railway, 6 L. & Eq. R. 214; Turnpike Corp. v. Railway, 23 Pick. (Mass.) 326; People v. Railway, 74 N.Y. 304; Railway v. Oklahoma, 111 P. 396; Minneapolis v. Railway, 28 N.W. 4; Railway v. State, 32 N.J.L. 224. (2) The city of St. Louis can pass no ordinance which is in conflict with the Constitution, statutes, or common law of this State. Sec. 9582, R.S. 1909; Secs. 16, 20, 22, 23 and 25, art. 9, Constitution 1875; 1 Dillon on Municipal Corporations (5 Ed.), sec. 237 et seq.; Leach v. Cargill, 60 Mo. 316; Ewing v. Hoblitzelle, 85 Mo. 78; St. Louis v. Tel. Co., 96 Mo. 623; State ex rel. v. Field, 99 Mo. 352; Nevada v. Eddy, 123 Mo. 557; Kansas City v. Scarritt, 127 Mo. 642; St. Louis v. Dorr, 145 Mo. 477; State ex rel. v. Subway Co., 145 Mo. 551; Kansas City v. Stegmiller, 151 Mo. 189; Young v. Kansas City, 152 Mo. 661; St. Louis v. Kaime, 180 Mo. 321; St. Louis v. Meyer, 185 Mo. 583; State ex rel. v. Tel. Co., 189 Mo. 83; L. & G. Co. v. Kansas City, 200 Mo. 167; St. Louis v. Klausmeier, 213 Mo. 119; St. Louis v. Wortman, 213 Mo. 131; St. Louis v. King, 226 Mo. 334; 1 Dillon on Municipal Corporations (4 Ed.), sec. 89, p. 145. (3) Said ordinances 24358 to 24361, inclusive, are in derogation of the common law. They are highly penal in their nature, and in cases of this character where the city is undertaking to exercise an alleged police right and to interfere with the use of the defendant's property, such ordinances and proceedings should be strictly construed. Perry v. Strawbridge, 209 Mo. 638; L. & G. Co. v. Kansas City, 200 Mo. 167; Leach v. Cargill, 60 Mo. 316; Carpenter v. Realty Co., 103 Mo.App. 494. (4) The common law was adopted in Missouri in 1816. Perry v. Strawbridge, 209 Mo. 635; Sec. 4151, R.S. 1899; Sec. 8047, R.S. 1909. (5) The defendant railway companies, at the time of the passage of the ordinance in controversy, had the legal right, if they desired to do so, to carry Tower Grove avenue, Old Manchester road, etc., under their tracks at the intersection of same with said streets, and the defendant city was not authorized, by its charter or otherwise, to deprive the railway companies of said option. Sec. 9582, R.S. 1909. Par. 2, sec. 26, art. 3, Charter of St. Louis, as amended in 1901, 4 Mo. Ann. Stat. 4809 et seq. (6) The St. Louis, Oak Hill & Carondelet Railway Company, by an ordinance approved June 15, 1886, was granted a right of way over Old Manchester road and the other streets in controversy for a term of fifty years from the passage of said ordinance. An irrevocable contract was thereby entered into between said railway company and the city, which could not be altered or amended by the passage of ordinance 24,360, relied upon in this cause. Hovelman v. Railway Co., 79 Mo. 632; State ex rel. v. Railway, 85 Mo. 263; Railway v. Springfield, 85 Mo. 674; Kansas City v. Corrigan, 86 Mo. 69; Kansas City v. Railway, 102 Mo. 633; Brown v. Railway, 137 Mo. 536; State ex rel. v. St. Louis, 145 Mo. 551; De Geofroy v. Railway, 179 Mo. 698; Kansas City v. Railway, 187 Mo. 146; Seibert v. Railway, 188 Mo. 657; St. Louis v. Railroad, 228 Mo. 712; Morie v. Transit Co., 116 Mo.App. 12; Independence v. Water Works Co., 153 Mo.App. 696; Railroad v. Savannah, 30 F. 646; St. Louis v. Tel. Co., 63 F. 68; New Orleans v. Tel. Co., 40...

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