Grand Ave. Ry. Co. v. Lindell Ry. Co.

• Decision Date: 21 March 1899
• Citation: 148 Mo. 637,50 S.W. 302
• Parties: GRAND AVE. RY. CO. v. LINDELL RY. CO.
• Court: Missouri Supreme Court

50 S.W. 302

148 Mo. 637

GRAND AVE. RY. CO. v. LINDELL RY. CO.

Supreme Court of Missouri.

March 21, 1899.

MUNICIPAL CORPORATIONS — JURISDICTION OF CIRCUIT COURT — STREET RAILROADS — USE OF TRACKS.

1. Const. art. 12, § 20, prohibits the general assembly from granting the right to construct and operate a street railroad within a municipality without first acquiring the consent of the local authorities. The freeholders' charter of St. Louis, which, under Const. art. 9, § 25, is the organic law of the city, by article 10 gives the municipal assembly power by ordinance to determine all questions with regard to street railways, section 6 giving any such company the right to use another company's tracks on payment of just compensation, under such regulations as may be prescribed by ordinance. Ordinance No. 12,652 provides that such compensation shall be determined by commissioners, to be appointed in a manner prescribed. Const. art. 6, § 22, gives the circuit court appellate jurisdiction from inferior tribunals, as may be provided by law. Held, that the municipal assembly might by ordinance confer on the circuit court jurisdiction to review the award of the commissioners.

2. Under an ordinance regulating the use by one street-railway company of another's tracks, which provides that the former shall construct and keep the connections with the latter's tracks, the former has the right to select and control the persons employed to handle the switches whose wages it is required to pay.

In banc. Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Proceedings between the Grand Avenue Railway Company and the Lindell Railway Company. From the decree entered, defendant appeals. Affirmed.

Boyle, Priest & Lehmann, for appellant. F. N. Judson, for respondent.

GANTT, C. J.

The plaintiff and the defendant are corporations under the laws of Missouri, each owning and operating a street railway in said city. The defendant corporation owns a line with a double track on Grand avenue in said city, between Lucas and Finney avenues, a distance of some 1,500 feet, and operates its cars thereon by overhead electric trolley. The plaintiff, on the other hand, is authorized by an ordinance of the city to construct its tracks on Grand avenue until it reaches that portion of the street occupied by defendant's tracks, and is authorized to connect its tracks with defendant's at the intersection of Grand and Finney avenues, and use the same to Lucas avenue. The city of St. Louis is governed in its municipal affairs by a charter adopted on the 22d day of October, 1876, by the voters of said city. It was framed by authority of sections 20, 21, 22, 23, 24, and 25 of article 9 of the constitution of Missouri, which provided that, when adopted by a majority of the voters, it should be "the organic law of the city," and should take the place of and supersede the then charter of the city, and all amendments thereto. The tenth article of the charter relates to and defines the authority of the city over street railways. It gives the municipal assembly of said city power by ordinance to determine all questions with regard to street railways, whether such questions involve the construction of such railroads, granting the right of way, or regulating and controlling them after their completion; and provided, among other things, that thereafter no street railroad should be incorporated or built in the city of St. Louis save in accordance with the conditions of said charter. By the sixth section of said article 10 it was expressly provided that "any street railroad company shall have the right to run its cars over the track of any other street railroad company in whole or in part upon the payment of just compensation for the use thereof under such rules and regulations as may be prescribed by ordinance, and it shall be the duty of the municipal assembly to immediately pass such ordinances as may be necessary to carry this provision into effect." The constitution of Missouri (article 12, § 20) further provides that the general assembly shall pass no law "granting the right to construct and operate a street railroad within any city, town, or village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchises so granted shall not be transferred without similar assent first obtained." The municipal assembly afterwards passed an ordinance No. 12,652, in obedience to section 6, art. 10, of the charter, which authorized any street-railroad company to run its cars over the tracks of any other street-railroad company, on any street as it may by ordinance be authorized so to do, upon the payment of just compensation, to be ascertained under the rules in said ordinance prescribed. Section 2 of said ordinance is in these words: "Sec. 2. When any street railroad company shall desire to operate a line of street cars over the track of any other street railroad company, or part thereof, as provided in the first section of this ordinance, and agreement cannot be had between such companies as to the compensation to be paid by the company so desiring, said compensation shall be ascertained by a commission of three disinterested freeholders of the city of St. Louis, to be chosen and appointed in the following manner, to wit: The company desiring to use said track may make written application to that effect to the mayor of said city, accompanied by plans and specifications showing the extent of track it desires to use, first giving ten days' notice in writing to the railroad company whose track it is designed to use, of the time and purport of such application. On receipt of the same, with evidence of notice as aforesaid, the mayor shall forthwith give notice to each of said companies to report to him in writing within ten days thereafter the name and address of one disinterested freeholder of the city of St. Louis to act as its chosen commissioner. Upon the expiration of the ten days aforesaid the mayor shall forthwith appoint a third disinterested freeholder of the city of St. Louis to act as commissioner, and shall also appoint one such freeholder to represent either of such companies which shall have refused or neglected to appoint a commissioner within the time aforesaid. Thereupon the mayor shall forthwith give notice to the commissioners so appointed of their appointment, and shall turn over to them all papers in his possession relating to the matter in controversy, and in case of vacancy in such board of commissioners, caused by death or refusal to serve of any of said commissioners, or for any other cause whatsoever, the mayor shall appoint a commissioner to fill such vacancy. All the commissioners provided for under the provisions of this ordinance shall be freeholders, resident of the city of St. Louis, and shall not be interested in any manner as stockholders, bondholders, lienholders, or officers or employés of either of the street railroad companies in question. When appointed, said commissioners shall proceed to determine the compensation to be paid and the time and manner of its payment; provided that in case one or more street railroad companies shall thereafter be authorized...