City of Cape Girardeau v. St. Louis-San Francisco Railway Company

• Citation: 267 S.W. 601,305 Mo. 590
• Decision Date: 18 December 1924
• Docket Number: 23644
• Parties: CITY OF CAPE GIRARDEAU, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY
• Court: United States State Supreme Court of Missouri

267 S.W. 601

305 Mo. 590

CITY OF CAPE GIRARDEAU, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY

No. 23644

Supreme Court of Missouri

December 18, 1924

Motion for Rehearing Overruled December 18, 1924.

Appeal from Butler Circuit Court; Hon. Almon Ing, Judge.

Affirmed.

James A. Barks and John A. Hope for appellant.

(1) Plaintiff had the power to prescribe the conditions set out in the ordinance in question. The railroad company accepted the ordinance; every condition specified in the ordinance then and thereby became binding upon the railroad company. Sec. 8314, R. S. 1919; Secs. 9230, 9233, 9250, 9254, R. S 1909; Railroad v. Kirkwood, 159 Mo. 239; Kansas City v. Railroad, 187 Mo. 146; 3 Elliott on Railroads sec. 1081; 3 Dillon on Municipal Corps. sec. 706; Chicago Railroad v. Chicago, 66 L. R. A. 959; People ex rel v. Railroad, 49 L. R. A. 650; Internatl. Ry. Co. v. Anderson Co., 246 U.S. 424, 62 L.Ed. 807. (2) Even if the condition in the ordinance requiring the railway company to maintain its repair shops and do its repair work at the city could be said to be ultra vires, the condition would, nevertheless, be binding upon the railway company. Chicago Railroad v. Chicago, 66 L. R. A. 959; People ex rel. v. Railroad, 49 L. R. A. 650. The above-cited statutory provisions, giving the city power to consent to the use of its streets and its land on the river front, and to impose such conditions upon its consent as it might see fit, were in force in 1911 when the ordinance was passed and accepted, and are still in force. That power is not withdrawn, modified or restricted as defendant's answer seems to assert, by the Public Service Act of 1913, giving the commission power to regulate railway transportation service and the rates to be charged therefor. On the contrary, the "Public Service Commission Act" recognizes and confirms the power of municipalities in the respects above mentioned. Sub. 1, sec. 53, P. S. C. Act (Sec. 10462, R. S. 1919.) And the same section prohibits the Commission from issuing any such certificate of public convenience and necessity until after the corporation "has received consent, franchise or permit of the proper county, city, municipal or other public authority." Sub. 3, sec. 53, P. S. C. Act (Sec. 10462, R. S. 1919); Mt. View v. Tel. Co., 7 Mo. P. S. C. 341; In Matter Polk County, 8 Mo. P. S. C. 681; In re Kansas City Ry. Co., 8 Mo. P. S. C. 315. (3) Defendant is precluded not only by general principles of law from ignoring the conditions of the ordinance relating to the repair shops, but it is prohibited from so doing by Secs. 3042 to 3047, R. S. 1909; Internatl. Ry. Co. v. Anderson Co., 246 U.S. 424. (4) There is no merit in the constitutional questions attempted to be raised in the answer. Chicago Ry. Co. v. Chicago, 66 L. R. A. 959; West Chicago v. Illinois, 59 L.Ed. 845; Northern Co. v. Chicago, 25 L.Ed. 336. On the contrary the position assumed by defendant, particularly its claim to be absolved from the obligations imposed by the ordinance by reason of the passage of the Public Service Law, violates plaintiff's constitutional rights. See Sec. 19, art. 12, Mo. Constitution, which provides that the General Assembly shall pass no law for the benefit of any railroad or other corporation retrospective in its operation or which imposes on the people of any municipal subdivision of the State a new liability in respect of transactions or considerations already past. See also Sec. 15, Art. 2, Mo. Constitution, which prohibits the General Assembly from passing any law impairing the obligation of contracts; also the similar provision in the Constitution of the United States. See also Knight v. Railroad, 70 Mo. 235. (5) If defendant, in that part of its answer which questions the jurisdiction of the court, means to say that the Public Service Law divests the court of power to hear and determine the issues herein and gives that power to the commission, the point is without merit. The questions involved in this case are judicial questions. The judicial power is vested by the Constitution in the courts therein named, and cannot be given to any other department. Sec. 1, art. 5, Mo. Constitution. (6) Injunction is the proper remedy. 14 R. C. L. sec. 82, p. 381; Sec. 98, p. 397; Joy v. St. Louis, 34 L.Ed. 857.

Ward & Reeves, W. F. Evans and E. T. Miller for respondent.

(1) The authority over respondent's shops, if vested in the State or any of its instrumentalities, is an authority to be exercised solely by the Public Service Commission. Appellant cannot by franchise, contract or otherwise curtail its power. State ex rel. v. Pub. Serv. Comm., 275 Mo. 201; Railroad v. Pub Serv. Comm., 281 Mo. 52; Secs. 10436, 10452, 10455, 10458, R. S. 1919. (2) Injunction is not the proper remedy. Bailey v. Culver 84 Mo. 540; Manufacturing Co. v. Railway, 230 Mo. 90.

David E. Blair, P. J. White, J., concurs in result; Walker, J., dissents in separate opinion; cause transferred to Court in Banc.

OPINION

BLAIR

Action in equity seeking mandatory injunction to compel respondent to maintain and operate repair shops in the city of Cape Girardeau and to prevent construction and maintenance of shops elsewhere. The action was begun in the Cape Girardeau Court of Common Pleas. The venue was first changed to the Circuit Court of Cape Girardeau County, and later to the Circuit Court of Butler County. Upon trial the temporary injunction was dissolved. Judgment was entered for defendant, and plaintiff was granted an appeal to this court.

For convenience, the city of Cape Girardeau will be referred to as "city," St. Louis-San Francisco Railway Company the respondent, will be referred to as "railway company," and St. Louis & San Francisco Railroad Company as "railroad company," as has been done in the briefs.

For many years prior to 1911, the railroad company owned and operated a line of railroad within the corporate limits and over the streets of said city. A controversy existed between the railroad company and the city whereby the city claimed damages for alleged breach by the railroad company of certain city ordinances. In 1911 there was enacted by the city and accepted by the railroad company what is known as Ordinance No. 935, by its terms extending and renewing the rights within the city previously enjoyed by the railroad company. Among other provisions of said ordinance was one requiring the railroad to maintain at said city its (then) present shops and facilities for making running repairs, and forbidding the railroad company to construct or operate shops for heavy repairs at any other point within one hundred miles of said city. It is this provision of the ordinance which the city claims the railway company, as the successor of the railroad company, has violated and which the city seeks to enforce in this suit. If it becomes necessary to mention other provisions of said ordinance, relative to undertakings of the railroad company, they will be noticed later.

By the terms of said ordinance, the permission, authority and grant of privileges of the railroad company were made to depend wholly "upon the original and continued performance of all the conditions imposed in this ordinance." Said ordinance provided for the forfeiture of all the rights of the railroad company for failure on its part to perform any of the conditions of the ordinance and for a reverter to the city of the rights granted thereunder, and further provided that, after the giving to the railroad company by the city of the specified notice, it should be required to remove its tracks, buildings, depots and property of all kind from said city or suffer forfeiture of such property to the city. It was also provided that, after such forfeiture, the railroad company should "thereafter be relieved and released from any and all duties and obligations to said city to operate its railroad and trains to and through said city."

Condition No. 14 of said ordinance is as follows:

"The Frisco Railroad Company shall maintain at Cape Girardeau the present shop and facilities, or their equivalent and capacity, for doing what is known as 'running' repairs for engines and cars; and that it will not construct and operate shops for what is known as 'heavy' or 'classified' repairs at any point within one hundred miles of Cape Girardeau, unless it be at Cape Girardeau."

Then follow illustrations of what is meant by heavy repairs and by light or running repairs, and a statement showing what lines of railroad are covered by said Condition No. 14.

After accepting the ordinance, the railroad company undertook to, and, though probably not entirely within the time specified, ultimately did, do certain things specified in the ordinance of the city, including maintenance of shops for making running repairs. In 1913 receivers for the railroad company were appointed by the United States District Court at St. Louis, at the instance of creditors and bondholders of the railroad company. Under authority granted by the Federal court, the receivers did some of the uncompleted work specified in the ordinance and continued to maintain repair shops in said city. Eventually mortgages securing bonds of the railroad company were foreclosed in the Federal court and defendant, the railway company, became the purchaser of the railroad and property of the railroad company and received a deed therefor. The sale was confirmed August 29, 1916.

Within six months after delivery to it of said deed, the railway company filed its election, under the provisions of Article Twelfth of the final decree, whereby it adopted and assumed a great number of contracts, leases etc., of the railroad company and of its receivers. Ordinance 935 of the city of Cape Girardeau was not one of the contracts thus adopted...