National Subway Co. v. City of St. Louis.

• Decision Date: 18 June 1902
• Citation: 69 S.W. 290,169 Mo. 319
• Parties: NATIONAL SUBWAY CO. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

69 S.W. 290

169 Mo. 319

NATIONAL SUBWAY CO. v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

June 18, 1902.

MUNICIPAL CORPORATIONS — USE OF STREETS — GRANT TO CORPORATION — COMPENSATION.

Where a city, after granting by ordinances a franchise and rights to a company to use the streets for the construction and operation of electric conduits on a certain semiannual payment, refused the enjoyment of such rights on the ground that the ordinances were void, which position was sustained by the supreme court, on a reversal of such holding, several years later, the city is not entitled to the semiannual payments during the time the company was deprived of its rights.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by the National Subway Company against the city of St. Louis. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

This is a controversy submitted without action, under section 793, Rev. St. 1899. The agreed facts are as follows:

"It is hereby stipulated and agreed by and between the plaintiff and defendant herein as follows:

"(1) Ordinance No. 15,953 of the city of St. Louis is as follows:

"`An ordinance amendatory of ordinance numbered 14,798 of the city of St. Louis, approved February 15, 1889, entitled: "An ordinance to provide for the laying of electric wires underground."

"`Be it ordained by the municipal assembly of the city of St. Louis as follows:

"`Section 1. Ordinance numbered 14,798 of the city of St. Louis, entitled "An ordinance to provide for the laying of electric wires under ground," approved February 15, 1889, is hereby amended by striking out all of sections six and ten, and by striking out sections one, four and five, and inserting in lieu thereof the following, viz.:

"`Section 1. Permission and authority is hereby granted to and duly vested in the National Subway Company, of Missouri, and its successors and assigns, to construct, maintain and operate conduits, pipes, mains, conductors, manholes and service and supply pipes in any of the streets, alleys, squares, avenues and public highways of the city of St. Louis, for and during the period of fifty consecutive years, from February 15, 1889, for the purpose of distributing and maintaining a line or lines of electric, telegraph, telephone, and other wires, together with all necessary feeders, outlets and service wire or other electrical conductors to be used for the transmission of electricity for any and all purposes: provided, that before the said company, its successors or assigns, shall lay any conduits or pipes in any of the streets and alleys of the city, it shall submit to the board of public improvements, detailed drawings and statements showing the plan of the work proposed to be done in said streets and alleys, including the route to be followed, and the size and dimensions of the structure, and it shall not proceed with the laying thereof until such drawings, statements and plans, and route and size and dimensions of the structure, have been approved and endorsed by the said board.'

"`Sec. 4. In order to insure a faithful compliance of section three of this ordinance, said company shall be required within ten days from the acceptance of this ordinance, to pay into the city treasury the sum of one thousand dollars, as a special fund, to be used by the street commissioner in making necessary repairs and changes which the said company may be liable to make under the provisions of this ordinance. Whenever, in the opinion of the street commissioner, any street, alley or highway, upon which pipes and appurtenances have been laid by said company is out of repair, in consequence of the use thereof by it, or whenever it becomes necessary to take up any pipe or appurtenances, on account of construction or reconstruction to streets, alleys, sewers, or any other improvements, the street commissioner shall notify the said company, by mail or otherwise, to cause the same to be repaired, or cause such changes or removals to be made as are necessary; and if the said company shall fail or refuse to obey such notice within the time prescribed therein, then the street commissioner shall cause the repairs to be made or work to be done and paid for out of the special fund hereinbefore provided; whenever a part or the whole of said one thousand dollars shall have been expended for the purpose hereinbefore mentioned, the street commissioner shall notify the president, manager or superintendent of the National Subway Company of Missouri (and its successors or assigns), in writing or otherwise, to pay so much more money into the city treasury as will bring the fund up again to the amount of one thousand dollars, within ten days thereafter; and if said president, manager or superintendent of said company, and its successors or assigns, fail to pay into the city treasury the amount so specified within the time stated, then the said president, manager or superintendent shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than fifty dollars, nor more than one hundred dollars for each and every offense, and every and each day thereafter that said deposit is not made good shall be considered a distinct and separate offense.

"`Sec. 5. Such corporation (or its successors or assigns), shall be a common carrier, and shall have and enjoy such rights, privileges and immunities as are usually had and enjoyed by such companies, and shall pay to the city of St. Louis for the above rights and franchises, semi-annually in advance, the sum of five hundred dollars, commencing on the day this ordinance is approved.

"`Approved February 6, 1891.'

"(2) That on or about the 20th day of December, 1894, the board of public improvements having approved its plans and specifications for a subway, the St. Louis Underground Service Company made application to the street commissioner of the city of St. Louis (under the provisions of section 1303, art. 5, c. 32, and section 568, c. 15, art. 1, Rev. Ord. 1887, made part hereof at that time), Michael J. Murphy, for excavation permits to lay and construct conduits under said ordinance 15,953, which permits, so applied for, the said street commissioner refused to issue at or about the date last aforesaid, pursuant to the resolutions of the city council, which are hereto attached, and marked Exhibits `A' and `B,' respectively.

"(3) That thereupon, to wit, on or about the 14th day of January, 1895, upon the petition of the St. Louis Underground Service Company, an alternative writ of mandamus issued out of division No. 1 of the supreme court of Missouri, directed to said Murphy, street commissioner as aforesaid, returnable for the 24th day of January, 1895, said mandamus proceeding being known as and numbered 7,446 of said supreme court. That such action was had in said proceeding that said division No. 1 of said court, on or about June 25, 1895, denied a peremptory writ of mandamus therein. That thereafter, on July 2, 1895, a motion for rehearing was filed by said St. Louis Underground Service Company, which motion was by the court on July 9, 1895, overruled, but at the same time the judgment theretofore rendered was modified, and said St. Louis Underground Service Company was allowed 30 days to plead to the return theretofore filed to the alternative writ by said Murphy, street commissioner as aforesaid. That on or about July 30, 1895, an answer was filed to said return, and the cause, upon such pleadings, was duly reset for hearing before said division 1, where the same was submitted and fully argued, and on or about the 18th day of February, 1896, the said division 1 again entered judgment, denying the mandamus prayed for. That on or about the 10th day of March, 1896, a motion which had been filed by said St. Louis Underground Service Company to transfer said cause to the court in banc was sustained, and the cause was accordingly transferred to the court in banc. That on or about the 5th day of May, 1896, said cause was argued and submitted before the court in banc, with the result that thereafter, on or about the 2d day of June, 1896, the court in banc rendered its judgment denying a peremptory writ. That on June 6 1896, a motion for rehearing which had been filed by said St. Louis Underground Service Company was overruled, and the judgment of said supreme court thereby became final. That the opinions delivered in division and in the court in banc will be found reported in State ex rel. St. Louis Underground Service Co. v. Murphy, 134 Mo., at page 548 and following, 31 S. W. 784, 34 S. W. 51, 35 S. W. 1132, 34 L. R. A. 369, 56 Am. St. Rep. 515.

"(4) That from and after said time, and until February 19, 1897, no application of any kind for permits to exercise any rights or privileges under the ordinance aforesaid were made or presented to the city of St. Louis or to any of its officers; but that on said 19th day of February, 1897, said St. Louis Underground Service Company did present to the board of public improvements certain plans and statements for service and supply pipes connecting a manhole in its subway, located at the southwest corner of Broadway and Olive streets, with the areaway under the building and sidewalk located at said southwest corner of Broadway and Olive streets, in order to connect the subway with the said building; and said company requested said board to approve the said plans, and to thereupon issue to it a permit for the doing of said work. That, in view of the judgment and decision of the supreme court, such request was not complied with, and that the board of public improvements...