City of St. Louis v. Missouri R.R. Co.

• Decision Date: 01 May 1883
• Parties: CITY OF ST. LOUIS, Respondent, v. MISSOURI RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 524

CITY OF ST. LOUIS, Respondent,

v.MISSOURI RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

May 1, 1883.

APPEAL from the St. Louis Court of Criminal Correction, NOONAN, J.

Affirmed.

DYER, LEE & ELLIS, for the appellant: The municipal assembly of the city of St. Louis, under its present charter, has no power to pass ordinances inconsistent with the laws of the state, and no power to disregard the regulations and exemptions prescribed by general law before the adoption of the city charter in respect to street railroads.-- St. Louis R. Co. v. South St. Louis R. Co., 72 Mo. 67; St. Louis R. Co. v. Northwestern R. Co., 69 Mo. 65. Where a law makes express exceptions, or express conditions to the enjoyment of its benefits, no others will be implied. The presumption is, that the law-making body has had its attention called to the necessity and propriety of exceptions or conditions, and has said on this subject, all that was in the legislative mind; and this is a proper case for the application of the maxim, “ Expressio unis est exclusio alterius.”-- Spry v. Flood, 2 Curt. Eccl. Rep. 365; Lee v. Evans, 8 Cal. 429-431; Bird v. Dennison, 7 Cal. 297-307; Watkins v. Wassell, 20 Ark. 410-420.

LEVERETT BELL, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The only question which we have to consider in this case is, whether the Missouri Railroad Company is bound, under a general ordinance of the city of St. Louis relating to street railways, to keep the streets for a space of twelve inches outside the rails of its track, in repair, on that part of its road which extends from Grand Avenue to Tower Grove Park.

The charter of the city of St. Louis contains this provision: “Street railroad companies shall keep the streets between the rails, and to the extent of twelve inches outside of each rail, in perfect repair, as nearly on a level with such rails as practicable, and that portion outside the rails shall be of the same material as the street itself.” Charter of St. Louis, Art. X., sect. 5; 2 Rev. Stats. p. 1617.

The charter also contains this provision: “The municipal assembly shall have power, by ordinance, to determine all questions arising with reference to street railroads, in the corporate limits of the city, whether such questions may involve the construction of such street railroads, granting the right of way, or regulating and controlling them after their completion; and also shall have power to sell the franchise or right of way for such street railroad to the highest bidder, or, as a consideration therefor, to impose a per capita tax on the passengers transported, or an annual tax on the gross receipts of such railroad, or on each car; and no street railroad shall hereafter be incorporated or built in the city of St. Louis, except according to the above and other conditions in this charter, and in such manner and to such extent as may be provided by ordinance.” Ibid., sect. 1; 2 Rev. Stats. p. 1616.

An ordinance of the city of St. Louis numbered 11,736 reads as follows:--

“Sect. 3. Whenever a part of a street, crosswalk, culvert, or other structure, which has to be maintained by any street railway company according to its charter, and the charter and ordinances of the city of St. Louis, shall be out of repair or in bad condition, the street commissioner shall notify the president or superintendent of said railroad forthwith to cause the same to be repaired and put in good condition; and if such company shall fail or refuse to obey such notice within the time specified therein, then the company and the president and the superintendent or manager thereof shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $5 nor more than $500 for each and every offence.”

The defendants are prosecuted under this ordinance; and it is conceded that they have violated its provisions if they are obliged to repair the space of twelve inches outside the rails of the track on the extension of their road in question.

This extension was authorized by an ordinance of the city of St. Louis approved January 31, 1881, numbered 11,580, which reads as follows:--

“Sect. 1. The Missouri Railroad Company, as now organized under the laws of this state, and its articles of association as they are amended and filed in the office of the secretary of state, or as they may be hereafter amended to conform to this ordinance, and its successors and assigns, is hereby authorized to extend its railroad tracks by laying down a single or double track with necessary turn-outs and switches, and operate the same from the present terminus of the road on Grand Avenue and Manchester Road along and on the Manchester Road to Tower Grove station, or where the Pacific Railroad crosses said Manchester Road, and thence on the Manchester Road and Tower Grove Avenue to Tower Grove Park. Said tracks shall be laid under the supervision and direction of the board of public improvements in respect to position and grade of laying said tracks on said extension. Said company shall use on the extension authorized by this ordinance a flat iron tram rail with a width of not less than two and one-half inches in the flange thereof. The space between the rails and the space between the tracks at all curves and switches shall be paved with stone or wood blocks.

Sect. 2. For the first five years after the approval of this ordinance the Missouri Railroad Company shall be required to make trips over said extension hereby authorized to be made, cars leaving Grand Avenue and Tower Grove station not less than once in every fifteen minutes between the hours of six A. M. and eight A. M. and five P. M. and seven P. M.; and between the hours of eight A. M. and five P. M., and seven P. M. and twelve midnight, not less than once in every thirty minutes, and for the balance of the existence of this franchise cars shall be run over said extension between the points mentioned above at intervals of not more than fifteen minutes between the hours of six A. M. and eight P. M., at intervals of not more than thirty minutes from eight P. M. to twelve midnight; and said company shall not charge and collect more than a single fare on any portion of its road extending from Fourth and Market Streets and covering that portion hereby authorized to be constructed.

“Sect. 3. Said company shall file with the city register within ninety days from the date of the approval of this ordinance, its accptance of the provisions thereof, which acceptance shall make this ordinance binding upon said Missouri Railroad Company, and said company shall construct in full that portion of the line between Grand Avenue and Tower Grove station, to enable it to run cars within one year from the approval of this ordinance, and on that portion of the track extending the road to Tower Grove Park within one year after said streets and avenues are graded and macadamized.

Sect. 4. This ordinance shall continue in force until May 6, 1909, and the priviliges hereby granted are subject to all general ordinances and charter provisions relating to street railways and applicable to this extension.

Sect. 5. It is expressly understood...