Rourke v. Holmes St. Ry. Co.

• Decision Date: 08 December 1915
• Docket Number: No. 18994.,18994.
• Citation: 181 S.W. 77
• Parties: ROURKE et al. v. HOLMES ST. RY. CO. et al.
• Court: Missouri Supreme Court

181 S.W. 77

ROURKE et al. v. HOLMES ST. RY. CO. et al.

No. 18994.

Supreme Court of Missouri.

December 8, 1915.

In Banc. Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Mamie E. Rourke and others against the Holmes Street Railway Company and others. Judgment for plaintiffs, and defendants appeal. Cause transferred to the Court of Appeals.

For opinion of Court of Appeals, see 177 S. W. 1102.

John H. Lucas and E. R. Morrison, both of Kansas City, for appellants. Ed. E. Yates, of Kansas City, and Perry S. Rader, of Jefferson City, for respondents.

WALKER, J.

The respondents contend that their easement of light, air, and access to their building has been so impaired by the construction and operation of appellants' elevated railway along the street opposite respondents' property as to entitle them to damages. They further contend that a construction of that portion of section 21, art. 2, of the state Constitution, is necessary, which provides that private property shall not be taken or damaged for public use without just compensation, and hence the jurisdiction for the determination of the matter at issue is in this court.

When this case was here on a former appeal (221 Mo. 46, 60, 119 S. W. 1094, 133 Am. St. Rep. 468), we held that the easement alleged to have been impaired was property, and that respondents could not be deprived of the use of same without just compensation. This ruling was but an affirmance of a well-established doctrine which was exhaustively considered in De Geofroy v. Railway, 179 Mo. 698, 79 S. W. 386, 64 L. R. A. 959, 101 Am. St. Rep. 524, where the earlier cases upon which it is based will be found cited, The necessary effect of this ruling was to construe the constitutional provision above referred to as applicable to cases in which the right to easements is the same as to that of more tangible property; or, in other words, that it (section 21, art. 2) gave a right of action for the impairment or injury to easements. While this is true, it does not follow therefrom that the jurisdiction to determine cases of this character is vested in this court. This only exists, so far as constitutional questions are concerned, when the interpretation of same is essential to the determination of the case. The Constitution may therefore, as it does in this case, give a right of action; but, its construction in relation thereto having been fully determined, its further consideration is not essential to a proper decision of this case, and hence such jurisdiction as is conferred on this court within the contemplation of section 12, art. 6, of the Constitution, does not exist. Ranney v. Cape Girardeau, 255 Mo. 516, 164 S. W. 582; Miller v. Connor, 250 Mo. loc. cit. 683, 157 S. W. 81; Tarkio v. Loyd, 179 Mo. 600, 78 S. W. 797; State ex rel. v. Smith, 176 Mo. 44, 75 S. W. 468.

From the foregoing it follows that this court is without jurisdiction to determine this case, and the same is ordered transferred to the Court of Appeals. All concur; BOND, J., in separate opinion.

BOND, J.

This is the second transfer of this case by the Kansas City Court of Appeals to this court. It was first transferred because of an attempted amendment of section 3937 of the Revised Statutes of 1909 by the Legislature in 1911. No other question was presented by the record except the constitutionality of the amendatory statute, and it was conceded that this court could have no...