Nagel v. Lindell Railway Company

• Decision Date: 19 February 1902
• Citation: 66 S.W. 1090,167 Mo. 89
• Parties: NAGEL et al., Appellants, v. LINDELL RAILWAY COMPANY et al
• Court: Missouri Supreme Court

66 S.W. 1090

167 Mo. 89

NAGEL et al., Appellants, v. LINDELL RAILWAY COMPANY et al

Supreme Court of Missouri, First Division

February 19, 1902

Appeal from St. Louis City Circuit Court. -- Hon. William Zachritz Judge.

Affirmed.

Sterling P. Bond for appellants.

(1) A city can not create a nuisance in its streets, or devote them, or any part thereof, to a purpose inconsistent with the rights of the public or abutting property-owners. Lockwood v. Railroad, 122 Mo. 97; Sherlock v Railroad, 142 Mo. 182; Lumber Co. v. Railroad, 129 Mo. 455. (2) Municipal ordinances may be impeached for fraud and corruption. 1 Dill. Mun. Corp. (4 Ed.), sec. 311; Glasgow v. St. Louis, 107 Mo. 203. (3) The Legislature of a State is authorized to create a new right for damages not prohibited by the Constitution of the State or the Constitution of the United States. Sec. 464, Iowa Code of 1873; sec. 767, Iowa Code of 1897; Mulholland v Railroad, 60 Iowa 741; Barbwire Co. v. Railroad, 70 Iowa 108; sec. 98, p. 604, vol. 2, Session Laws of Michigan, 1869; Taylor v. Railroad, 80 Mich. 79; Ex parte Marmaduke, 91 Mo. 241; Duluth Township v. Duluth, 7 Iowa 284. (4) There is nothing in the Constitution of Missouri or the United States prohibiting the Legislature of a State from creating a new right for damages to real and personal property, occasioned by building and operating a street railway on a public thoroughfare, along and in front of an abutting property-holder, and in creating a remedy for the enforcement of such damages as provided by secs. 1, 2, 3, 4, 5, p. 39, Laws 1887; secs. 1824-25-26-27, R. S. 1889; secs. 6115-16-17-18, R. S. 1899. (5) When a right is created by a statute and a specific remedy is provided, the right can be vindicated in no other way than that prescribed by law. The remedy is exclusive. Barbwire Co. v. Railroad, supra; Taylor v. Railroad, supra. (6) The statute law is the will of the Legislature, and the object of all judicial interpretation of the statutes is to determine what intention is conveyed, whether expressly or by implication by the language used. Anderson v. Railroad, 117 Ill. 29; Railroad v. Hemphill, 35 Miss. 21; U. S. v. Fisher, 2 Crouch, 399; People ex rel. v. Comm'rs Taxes of N. Y., 95 N.Y. 558; Smith v. People, 47 N.Y. 336; Busch v. Newbury, 10 N.Y. 390; People v. Railroad, 13 N.Y. 80; Ex parte Marmaduke, 91 Mo. 241; Humes v. Railroad, 82 Mo. 288; Railroad v. Evans, 85 Mo. 325; State ex rel. v. Indianapolis, 106 Ind. 423; Storm v. Stevenson, 104 Ind. 50. (7) In the case of Ruckert v. Railroad, 63 S.W. 819, the court did not quote all of the rule laid down in Suth. St. Const., 255. The rule as laid down in said section is as follows: "If the Legislature use words which have received a judicial interpretation they are presumed to be used in that sense, unless the contrary intent can be gathered from the statute." The words of the last clause are the portion of the rule which the court did not quote in its decision. To sustain the above rule, as we have quoted it, the following authorities are cited by the author: McKee v. McKee, 17 Md. 352; Huddleson v. Askey, 56 Ala. 218; Posey v. Preesley, 60 Ala. 273; Dawson v. Dawson, 23 Mo.App. 169. And said authorities do not sustain the rule as laid down by the court in Ruckert v. Railroad, supra. (8) No person shall be deprived of his property without due process of law. Sec. 30, art. 2, Constitution; sec. 1, amend. 14, Constitution of U. S.; State ex rel. v. St. Louis Court of Appeals, 97 Mo. 276; State ex rel. v. Smith, 141 Mo. 10; Gallatin v. Tarwater, 143 Mo. 45. (9) That which damages property or depreciates its value deprives the owner of his property. In re Jacobs, 98 N.Y. 105; St. Louis v. Hill, 116 Mo. 533; State v. Julow, 129 Mo. 173; In re Mahon, 34 F. 525; In re Frederick, 51 F. 747.

Boyle, Priest & Lehmann and Geo. W. Easley for respondents.

(1) The record discloses that the road in Hamilton avenue was to be constructed for the transportation of passengers in cars moved by electric power over tracks laid even with the surface of the street, and appellant did not allege that his ingress to or egress from his property, or any other rights appertaining to his property, was injured. The building of such a street railway did not impose any additional servitude upon the street. In such a case, the injunction was properly denied, and the bill dismissed. Ruckert v. Railroad, 63 S.W. 814; Placke v. Railroad, 140 Mass. 634; Ransom v. Railroad, 104 Mo. 375; Mfg. Co. v. Railroad, 113 Mo. 308; Stevenson v. Railroad, 68 Mo.App. 449; Lewis on Eminent Domain, sec. 124; Elliott on Streets, 558; Halsey v. Railroad, 20 A. 859; Lumberger v. Railroad, 30 S.W. 533; Louisville Bagging Co. v. Central Passenger Co., 95 Ky. 50, 44 Am. St. Rep. 203; Howe v. Railroad, 167 Mass. 46, 44 N.E. 386; Koch v. Railroad, 75 Md. 222, 23 A. 463; Williams v. Railroad, 41 F. 556. (2) But appellant did not allege any such peculiar damage to his property as to require compensation to be made before the road was constructed, either under the Constitution, article 2, section 21, or Revised Statutes 1889, section 1825. Vandivere v. Kansas City, 107 Mo. 83; Rude v. St. Louis, 83 Mo. 408; Stevenson v. Railroad, 68 Mo.App. 648; Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 97 Mo. 92; Bisp. Equity (5 Ed.), sec. 439; Lewis on Em. Domain, sec. 636. (3) Neither the Constitution, article 2, section 21, nor Revised Statutes 1889, section 1825, creates a new right. They only reserve to the party whose property is damaged, but not taken by an authorized public work, the same remedy he would have had at common law if the work had not been authorized, provided he suffered a peculiar or special damage. McCarthy's Case, L. R. 7, H. L. 243; Walker's Case, L. R. 7, A. C. 259; Rickett v. Railroad, L. R. 2, H. L. 175; Railroad v. Ogilvey, 2 Nacq. 229, s. c., 1 Patterson (Scotch App. Rel. H. L. 474); Rigney v. Chicago, 102 Ill. 64; Shawneetown v. Mason, 82 Ill. 343; Hyde Park v. Dunham, 85 Ill. 576. Such is the well-established English rule, and the rule in Illinois, from which State our constitutional provision was adopted, and has long been the rule in this State. Ruckert v. Railroad, 63 S.W. 814, and cases collected. (4) The allegations of fraud in the procurement of the passage of ordinance number 19429 are unavailing: (a) Because the legislative powers of the Municipal Assembly of St. Louis are granted by the Constitution of the State. Constitution, art. 9, sec. 20, et seq. If the passage of the ordinance in question is legislation, then the ordinary rule, that the motives of legislators in passing a law can not be inquired into, must prevail. Suth. on Stat. Con., sec. 330; McQuillin's Mun. Code St. Louis, p. 211, note; Trust Co. v. Arkansas City, 76 F. 282; Power Co. v. Colorado Springs, 105 F. 1. (b) Because it would be beyond the power of any court to set aside this ordinance, if construed as a contract, without the city of St. Louis being a party, for the reason that the city has a large pecuniary interest in the contract. (c) Because, if it be true that the plaintiff can not maintain an injunction, then the plaintiff shows no such interest in the subject-matter of the suit as to entitle him to attack the ordinance for fraud in its procurement. Bodkin v. Merritt, 102 Ind. 293, 1 N.E. 628; 9 Ency. Pldg. and Prac., p. 681, title "Fraud," and authorities cited in note 2. (d) Because the allegations of fraud are so general that they do not advise the court or the defendants of who was guilty of the fraud; nor upon whom the fraud was practiced, nor the means of the fraud. McQuillin's Mun. Code, p. 1026; 9 Ency. Pldg. and Prac., p. 683.

OPINION

VALLIANT, J.

This is a suit in equity aiming to enjoin the defendants from constructing a street railway in Hamilton avenue in St. Louis. The circuit court sustained a demurrer to the petition, and the plaintiffs declining to plead further, the court rendered judgment for defendant, from which one of the plaintiffs appeal.

The petition states substantially that the plaintiffs severally own lots in the city fronting Hamilton avenue, which is one of the public streets of the city, and that defendants, who are three street railway corporations and their officers, are about to construct a double-track railway through Hamilton avenue under authority of a certain ordinance of the Municipal Assembly approved October 28, 1898, being No. 19429, and which is set out by literal copy in the petition. Without here copying the ordinance, which is very long, it is sufficient for the purposes of this case to say that it confers the authority to do what the petition states the defendants are about to do, provided the ordinance is valid, and provided the defendants have not omitted to perform some duty they owe to the plaintiffs preliminary to entering upon the work. The petition charges that the ordinance is illegal and void because it was "fraudulently and corruptly passed by the Municipal Assembly of said city, by reason of said defendants, their agents, servants and attorneys corruptly bribing and paying the city aldermen, councilmen and members of the Municipal Assembly large sums of money, or promising to pay the aldermen, councilmen and members of the Municipal Assembly of the said city of St. Louis, stocks, bonds, privileges and large sums of money, to vote for said pretended franchise and ordinance." The petition states that acting under that ordinance the defendants or one of them has "unlawfully and forcibly entered or is about to unlawfully and forcibly enter in and upon said Hamilton avenue, adjacent to and in front of the said real estate property of plaintiffs, above described, for the purposes of constructing and operating a street railway in and upon the said Hamilton...