City of Kirksville v. Hines

• Decision Date: 02 December 1920
• Citation: 225 S.W. 950,285 Mo. 233
• Parties: CITY OF KIRKSVILLE, Appellant, v. WALKER D. HINES and WABASH RAILROAD COMPANY
• Court: Missouri Supreme Court

225 S.W. 950

285 Mo. 233

CITY OF KIRKSVILLE, Appellant, v. WALKER D. HINES and WABASH RAILROAD COMPANY

Supreme Court of Missouri, First Division

December 2, 1920

Appeal from Adair Circuit Court. -- Hon. James A. Cooley, Judge.

Affirmed.

A Doneghy for appellant.

(1) The court erred in sustaining the demurrer, for the reason that Sec. 9258, R. S. 1909, confers express power on the city to make such extension, and Sections 9261 to 9275 prescribe a complete scheme for the condemnation, and said sections comprise authority and the only authority in the statutes whereby private property may be taken or damaged by a city of the third class for public purposes. (a) And Section 9262 gives the circuit courts exclusive jurisdiction to hear and determine all such condemnation proceedings. (b) Nowhere, in the Public Service Act, and in no other statute, is the Public Service Commission given authority to hear and determine a condemnation proceeding. And nowhere is said Commission given authority to impanel a jury or appoint commissioners for such purposes as is provided by Section 21 Article 2, of the Constitution. (c) And if the Legislature by the passage of the Act of 1913, sec. 50, page 589, and Section 1, page 696, Laws 1913, intended to confer on the Public Service Commission exclusive jurisdiction to say whether an underground crossing should or should not be built, still it would not take away from the circuit courts the power to hear a condemnation case for such purpose. The city could obtain the permission of said Commission after the termination of the court proceedings. And it is no concern of the defendants as to which course the city will elect to pursue, as their land cannot be taken until paid for, and then it can be used for no other purpose than that for which it was condemned. State ex rel. v. Williams, 227 Mo 32. (2) The court erred in dismissing the case for the reason that Section 9258, and Section 9261 confer on the city council authority to determine when a street shall be opened or extended, and Section 1, Laws 1913, page 696, gives the council of cities of the third class the exclusive right to order an underground crossing when the conditions prescribed by the act exist, to-wit: when a public street crosses the line of any railroad at a point where the grade of such railroad is ten feet or more higher or lower than the surface of such street. (3) The Public Service Commission not only has not the exclusive jurisdiction in such cases, but, on the contrary, has no jurisdiction at all. The Public Service Commission Act was approved on the 17th day of March, 1913. See Laws 1913, page 651. Three days later the same Legislature amended an act and wrote therein the words, "cities of the third class," and provided that when a public street or road crosses the line of any railroad at a point where the grade of such railroad is ten feet or more higher or lower than the surface of such street or road, such railroad company shall be required by the proper authority of said city of the third class to construct a safe, convenient and suitable passage and roadway under or across such railroad for the use of the traveling public. Laws 1913, p. 696. The two Acts above referred to were each passed by the same Legislature at the same term, and it is our duty to give effect to each if possible, and not until we find it impossible to read them together without conflict are we called on to apply the rule that where two statutes are in conflict the latter statute shall prevail, and we think there is no difficulty in reconciling the two. The Public Service Commission Act, sec. 50, is a general act, and, unless restrained by some special act, is broad enough to include all crossings of roads or streets by railroads. The Act found at page 696 is a special act and applies only to specific conditions, and was, under well recognized rules of construction, intended, when the specific conditions therein defined existed, to take the same out of the provisions of the general act. Sutherland, Stat. Con., sec. 153, p. 206, and secs. 157, 158, 159; Musick v. Railroad, 114 Mo. 314; State v. DeBar, 58 Mo. 398; Payner v. Musick, 114 Mo. 637; State v. Green, 24 Mo.App. 231; Gilkerson v. Railroad, 222 Mo. 173.

N. S. Brown, L. H. Strasser, and Higbee & Mills for respondents.

(1) The petition failing to aver that the Public Service Commission has ordered a crossing to be put in across the defendant's railroad, the court properly sustained the demurrer on the ground that it had no jurisdiction in the premises. State ex rel. v. Pub. Service Com., 271 Mo. 270. (2) The petition does not state facts sufficient to constitute a cause of action. It does not aver that the Public Service Commission has ordered the Wabash Railroad or the Director General to construct a crossing at the point in question. Appellant admits such order has not been made. Such order is a condition precedent to the condemnation of a right of way for the proposed crossing. (3) The Public Service Commission Act, Laws 1913, p. 557, Section 50, p. 589, gave the Public Service Commission exclusive jurisdiction to determine and prescribe the manner, including the particular point of crossing, and the terms of installation of a street by a railroad or vice versa. This includes subgrade, grade, and overhead crossings. State ex rel. v. Public Service Com., 271 Mo. 283. This necessarily repealed Sec. 10626, R. S. 1909, and other inconsistent acts. (4) Sec. 10626, having been repealed by necessary implication, the Act of March 20, 1913, Laws 1913, p. 696, purporting to repeal Section 10626, and to enact a new section in lieu thereof, is nugatory. It was an attempt to revive and amend the repealed section by making it applicable to villages and cities of the third class. State ex rel. v. Benton, 51 N.W. 143; Lampkin v. Pike. 115 Ga. 827; Draper v. Fallay, 33 Ind. 465; Wall v. Garrison, 11 Col. 515; Stingle v. Nevel, 9 Ore. 62; Blackmore v. Dolan, 50 Ind. 194. (5) If the Act of March 20, 1913, were a valid enactment it is to be read as a part of the earlier statute and not of the re-enactment, and does not repeal Section 50 of the Public Service Commission Act. Endlich on Int. Statutes, 194; Lewis Sutherland, Stat. Constr., sec. 273.

RAGLAND, C. Brown and Small, CC., concur.

OPINION

RAGLAND, C. --

This is a condemnation proceeding instituted by the City of Kirksville in furtherance of its effort to extend one of its streets across the right of way and tracks of the defendant railroad company. The petition, which was filed in the Circuit Court of Adair County December 15, 1919, is as follows:

"To the Honorable Circuit Court of Adair County, Missouri. Our petitioner, in the above entitled cause, respectfully shows to the court and alleges that the defendant, Wabash Railway Company, is a railroad corporation, and has a principal business office at the City of Saint Louis, Missouri, and owns a line of railroad running north and south through the City of Kirksville, which said line of railroad, and right of way, runs across and over the following described lands situated in said city, to-wit: Beginning at a point in said city where the north line of Normal Avenue (a public highway or street of said city formerly called, and shown on the plat of Dodson's Addition on file in the office of the Recorder of Deeds of Adair County Missouri, Water Street), intersects the east line of the defendant Wabash Railway Company's right of way, and running from thence west to the east line of Fourth Street, and from thence south to a point in line with the south line of said Normal Avenue (formerly called Water Street), and from thence east to the east line of said railway company's right of way, and from thence in a northeasterly direction to the place of beginning, and said lands are owned by said defendant, Wabash Railway Company; that said Normal Avenue, formerly called Water Street, is a public highway of said City of Kirksville, and now is and has been used as a public highway for many years last past both east and west of said described lands; that defendant, Walker D. Hines, is the Director General of Railroads and is in control of said line of railroad and of said railway company.

"Your petitioner further states that where the said Normal Avenue crosses the above described part of defendant railway company's right of way and railroad track the grade of said railroad track is ten feet or more, to-wit, fourteen feet, higher than the surface of said Normal Avenue; that on, to-wit, the 18th day of August, 1919, the council of said City of Kirksville did duly pass and the mayor did duly approve and sign an ordinance numbered 3486 and which said ordinance is now in full force and effect, and wherein in and by said ordinance the above described lands were condemned for the purpose of extending said Normal Avenue across the same and under the track of said railway company for the purpose of public travel, and wherein by said ordinance it was provided that part of said Normal Avenue so made by extension across said lands or right of way be graded to the grade established by said ordinance, and said ordinance further provided for and defined the limits within which private property should be assessed...