City of St. Louis v. Terminal Railroad Association

• Decision Date: 02 April 1908
• Citation: 109 S.W. 641,211 Mo. 364
• Parties: CITY OF ST. LOUIS, Appellant, v. TERMINAL RAILROAD ASSOCIATION et al
• Court: Missouri Supreme Court

109 S.W. 641

211 Mo. 364

CITY OF ST. LOUIS, Appellant, v. TERMINAL RAILROAD ASSOCIATION et al

Supreme Court of Missouri

April 2, 1908

Appeal from St. Louis City Circuit Court. -- Hon. Horatio D. Wood Judge.

Affirmed.

Charles W. Bates and Benjamin H. Charles for appellant.

(1) As between public and private interests the construction of ordinances or charter provisions will be taken most strongly in favor of the public. Stein v. Bienville, 141 U.S 67; Philadelphia v. W. U. Tel. Co., 11 Phila. 327; McQuillin on Municipal Ordinances, sec. 578; Coosaw v So. Car., 144 U.S. 562; Louisville Trust Co. v. Cincinnati, 73 F. 726. (a) No mere omission will justify judicial addition to the language of ordinance or contract. United States v. Goldenberg, 168 U.S. 95. (b) The legislative intention must be derived from the words used and not from conjectures aliunde. Gardner v. Collins, 2 Peters 86; Cargo v. U.S. 7 Cranch 60; Market Co. v. Hoffman, 101 U.S. 116; Petri v. Ban, 142 U.S. 650; McBroom v. Investment Co., 153 U.S. 323. (c) In this regard, as on all the special defenses, the burden was upon the defendants. Silver v. Railroad, 101 Mo. 79. (2) When provision was made for the building of a bridge over Clark avenue by the passage of ordinance 18834, the liability of the defendants was fixed. Ordinance 15989, sec. 7; Ordinance 18834, sec. 1. (a) The provision for the payment of $ 15,000 for each of any other bridges which might subsequently be constructed by the city across the tracks is not to be confused with this provision for the payment of $ 150,000, for as to such other bridges payments are "to be made within thirty days after the construction of said bridge or bridges is commenced." (b) Nevertheless, the city proceeded as though this provision for the commencement of construction applied to the Clark avenue bridge as well as to the other bridges, and let a contract for a portion of the work; and that work proceeded until the defendants themselves stopped it by refusing the city and the contractor admission to the Station grounds, contrary to their express agreement in ordinance 15989, section 7. (3) The contention that the provisions of ordinance 18834 are not specific and definite is not well founded. They direct the board to cause a bridge to be built "in accordance with plans adopted by said board;" prescribe the extent and materials of the work; appropriate $ 1,000 toward its prosecution; and, the estimated cost being $ 151,000, direct the auditor to credit the bridge fund with the remaining $ 150,000, when the defendants shall have complied with the agreement contained in ordinance 15989. Such an ordinance need not contain specifications of the work to be done. Becker v. Washington, 94 Mo. 375; Roth v. Hax, 68 Mo.App. 287; Asphalt Co. v. Ullman, 137 Mo. 570. (4) Ordinance 18834 was not passed, nor was the bill even introduced in the Municipal Assembly, until after the plan for the bridge had been adopted by the Board of Public Improvements. Compare also date of plan, December 16, 1896, with date of ordinance, March 11, 1897. (5) The special defenses that the city had never widened the streets, nor acquired private property nor paid damages to abutting property-owners, were immaterial. (a) Such questions can be raised only by the owners of private property. (b) Defendants cannot place themselves in the shoes of the owners of private property which might be affected by the building of the approaches to the bridge. (c) Nor can defendants set up the right of property-owners as against the city, as a defense to their liability to the city. (6) The law does not permit a person not interested in property abutting on a proposed public work, or who has waived compensation for damages, to block the work because some one else may be damaged. (a) A fortiori, possible damage to third parties constitutes no defense to an action upon an independent and distinct obligation in no way connected with property which may be damaged. (b) Such third parties are not parties to such action. Non constat, but that some or all of them may desire the public work to go on, regardless of the question of damages to them. (7) The court erred in holding, as a matter of law, that a bridge with approaches on Eighteenth and Twentieth streets was not a bridge on Clark avenue, as provided by Ordinance 15989. (a) So far as the language of that ordinance goes, a bridge on Clark avenue may have approaches anywhere to suit the public convenience; and it is the Municipal Assembly, and not the defendants, who are charged with the duty of determining what is for the public convenience. (c) It is immaterial where the approaches might be. (d) It is a question for the public interest only where the approaches should be. (e) It is not for defendants to dictate where the city should put the approaches to one of its bridges. (f) The ordinance did not limit the place where the approaches should be; thus wisely leaving it to the future discretion of the Municipal Assembly, when local conditions might be different. (g) Defendants cannot read a new clause into the ordinance, prescribing where the approaches should be. (h) It might be that the Municipal Assembly should desire to connect the Clark avenue bridge with other bridges or structures already existing, for example, the Eighteenth street bridge, and new approaches at such points might, therefore, be unnecessary. (i) It is erroneous to hold that an approach is part of a bridge, as a matter of law. Whether the word "bridge" includes approaches must depend upon the intention with which, in view of all the circumstances, the word is used. Nims v. Boone Co., 66 Iowa 272; N. H., etc., Counties v. Milford, 64 Conn. 568; Railroad v. Daniels, 90 Ga. 608; Com. v. Deerfield, 6 Allen (Mass.) 449; Swanzey v. Somerset, 132 Mass. 312. (j) Whether an approach is a part of a bridge is a question for the jury. Moreland v. Mitchell Co., 40 Iowa 392; Newcomb v. Co., 79 Iowa 487; Tolland v. Wilmington, 26 Conn. 578; Weeks v. Lyndon, 54 Vt. 638. (8) The question of fact whether the bridge would have interfered with the running of trains should have been submitted to the jury. (a) The language of section 7, of Ordinance 15989, refers to the physical operation of the trains, and not to the operation of a mere system of signals. The words mean that the bridge must be high enough to permit trains to pass underneath, and so as not to strike the supports of the bridge. (b) The question whether the view of trainmen under the train-shed would be obstructed by the proposed bridge and whether trains under the shed could, after the construction of such a bridge, be seen by the operator in the switch tower nearly a thousand feet south, were both immaterial; but even on these questions the evidence was conflicting. The court erred in admitting it at all, but when once admitted the whole question of fact should have been submitted to the jury. (9) A void or unauthorized act of a municipal board or official does not bind the municipality, and no estoppel can arise therefrom. Moses v. St. Louis Sectional Dock Co., 84 Mo. 242; Sturgeon v. Hampton, 88 Mo. 203; Heidelberg v. St. Francois Co., 100 Mo. 69; St. Louis v. Gorman, 29 Mo. 593; Rissing v. Ft. Wayne, 137 Ind. 427; Galesburg v. Galesburg Water Co., 34 F. 675. (a) The Board of Public Improvements did not approve the plans of the station. But assuming that they did, their act in so doing was unauthorized; and no estoppel is raised thereby. (b) Where power or authority never existed, it cannot be retroactively created by an estoppel. Bigelow (5 Ed.), pp. 466, 467; also p. 349; Scoville v. Thayer, 105 U.S. 143; Winters v. Armstrong, 37 F. 508; Unionville v. Martin, 95 Mo.App. 39; State v. Murphy, 134 Mo. 567. (10) The record in the case of Lester Real Estate Company v. St. Louis should not have been admitted in evidence: (a) No estoppel was pleaded. (b) No estoppel can arise, nor can the subject-matter be res adjudicata, the two suits not being between the same parties. Authorities cited under point 9, supra. See, also: 1 Freeman on Judgments (4 Ed.), sec. 158, p. 289; McMahan v. Geiger, 73 Mo. 149; Bank v. Bartle, 114 Mo. 281; Chand. on Res Adjudicata, sec. 77; Van Fleet's Former Adjud., sec. 256, p. 572.

McKeighan & Watts and J. P. McBaine for respondents.

(1) The money sued for was to be paid by the defendants only upon the city's legally providing for the bridge mentioned in section 7 of Ordinance 15989. The city can only undertake to perform public work, like building a bridge, by an ordinance duly enacted strictly in conformity with the terms and provisions of its charter. Charter, art. 6, sec. 27; 1 Dillon on Municipal Corporations (4 Ed.), secs. 457-458; Rumsey Mfg. Co. v. Schnell City, 21 Mo.App. 173; Savage v Springfield, 83 Mo.App. 323; 1 Abbott on Municipal Corporations, secs. 248, 253, 258; Defiance Water Co. v. Defiance, 90 F. 753; Somerset v. Smith, 49 S.W. 450; Wellston v. Morgan, 59 Ohio St. 147; 20 Am. and Eng. Ency. Law (2 Ed.), 1162, 1163, 1164; Los Angeles Gas Co. v. Taberman, 61 Cal. 199; Sullivan v. Leadville, 11 Colo. 483; Hudson v. Marietta, 64 Ga. 286; Butler v. Charleston, 7 Gray (Mass.) 12; Niles Waterworks Co. v. Niles, 59 Mich. 311; Keeney v. Jersey City, 47 N. J. Law 449; McDonald v. New York, 68 N.Y. 23; City of Bryan v. Page, 51 Tex. 532; Lee v. Racine, 64 Wis. 231; Pollock v. San Diego, 118 Cal. 593; Holmes v. Arondale, 11 Ohio Cir. Ct. 430; Findley v. Pendelton, 62 Ohio St. 80; Crutchfield v. Warrensburg, 30 Mo.App. 456; Keating v. City of Kansas, 84 Mo. 415; Zaltman v. San Francisco, 20 Cal. 96; City of Unionville v. Martin, 95 Mo.App. 28; State v. Butler, 178 Mo. 272; Lamar Water & Electric Light Co. v. City of Lamar, 128 Mo. 188; Town of Kirkwood v. Meramec Highlands Co., 94...