Merriam v. The Chicago, Rock Island and Pacific Railway Company

• Decision Date: 25 May 1908
• Citation: 111 S.W. 876,132 Mo.App. 247
• Parties: JOHN F. MERRIAM et al., Respondents, v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

111 S.W. 876

132 Mo.App. 247

JOHN F. MERRIAM et al., Respondents, v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 25, 1908

Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.

AFFIRMED.

STATEMENT.--"This is a suit in equity to enjoin the defendant from laying a spur track in an unpaved alley twenty feet wide, running north and south through blocks 42 and 43 in Patee's addition to the city of St. Joseph. The relief is asked upon the grounds:

"First. That the city ordinance under which the defendant claims the right to lay the track was not passed in the common council by the requisite number of votes, and is therefore void; and,

"Second. That on account of the narrowness of the alley and the fact that it is already occupied by a line of poles along each side, carrying electric wires, the proposed track will amount to a virtual appropriation of it to the exclusive use of the defendant."

The ordinance omitting the title and ordaining clause, about which no question is made is as follows:

"Section 1. The right is hereby granted the Chicago, Rock Island & Pacific Railway Company, its successors or assigns, to construct, maintain and operate a spur or side track with the necessary turnouts and sidings from a point on its main line track in Eighth street, about sixty feet south of the south line of Renick street, thence in a northeasterly direction across Renick street, to a point in the alley between Eighth and Ninth streets about one hundred and twenty feet north of the north line of Renick street, thence north along and upon said alley to the south line of Olive street and across Mitchell avenue, Penn street, Seneca street and Lafayette street, on the line of said alley; provided that said railway company shall so construct, maintain and operate its track as to interfere as little as possible with ordinary travel and leave sufficient space for the safe and convenient passage of teams and persons.

"Section 2. The said Chicago, Rock Island & Pacific Railway Company its successors or assigns, shall maintain its tracks at the grade or grades now or hereafter established by said city and shall comply with all the laws of the State of Missouri or ordinances of the city with relation to planking.

"Section 3. The said Chicago, Rock Island & Pacific Railway Company its successors or assigns, shall when so directed by the city of St. Joseph, at any time after said track shall be laid pave with vitrified brick all of said alley between said points, and also those portions of the said streets between the said rails and said track and for eighteen inches on each side thereof.

"Section 4. This ordinance shall take effect and be in full force from and after its passage according to law."

The court found that the ordinance had not been legally passed and was void; and that it contained no regulation at all of the use the defendant might make of its track and thereby left to the defendant to determine for itself what use it would so make of it. Section 2, of the Laws of 1903, p. 69 creating the present common council of the city of St. Joseph, provides that, "the legislative power of all cities of the second class shall be vested in a municipal assembly to be known as the common council of the city of , which shall consist of as many members as there are wards in the city, one to be elected from each ward by the qualified voters of the city at large for a term of four years, and until their successors are elected and qualified, and a president who shall also be elected in the same manner and for the same term of office."

Section 3, of the act, provides:

"The president so to be elected shall preside over all meetings of the common council, but shall not vote, except in cases of a tie, in which case he shall cast the deciding vote."

Section 5, provides that "no bill shall become an ordinance unless on its final passage a majority of all the members vote in its favor and the vote shall be taken by yeas and nays, and the names of the members voting for and against the same shall be entered on the journal, and no bill not passed in conformity with the foregoing requirements shall be valid, but shall be absolutely void and of no legal effect whatever."

Judgment affirmed.

Brown & Dolman for appellant.

(1) The ordinance was passed in strict conformity to the statute and is a valid ordinance. (2) The president is therefore expressly constituted a member of the council, although with limited powers, as the following sections of the act demonstrate. State ex rel. v. Yates, 37 L. R. A. 205; Dreifus v. Lonergan, 73 Mo.App. 343; State v. Meier, 143 Mo. 439, 444; In re Brearton, 89 N.Y.S. 893; People v. Harshaw, 60 Mich. 200; Sedgwick, Stat. and Const. Law, 533; Cotton Mills v. Commissioners, 13 S.E. 273; Black on Interpretation of Laws, 183; Zeiler v. Railway, 84 Md. 304; Potter v. Safford, 50 Mich. 46; North Platte v. Water Co., 56 Neb. 403; Sutherland on Statutory Construction, sec. 256; quoting Hadley v. Perks, L. R. 1 Q. B. 457; In re Brearton, 89 N.Y.S. 893; United States v. Balin, 144 U.S. 9; Atty. Gen. v. Shepard, 62 N.H. 384; 23 Am. and Eng. Ency. Law, 592.

Kendall B. Randolph for respondents.

(1) In McQuillin, Municipal Ordinances, page 169, we find the following language: "But where the act must be done by a distinct proportion" of all...