Ruckert v. Grand Avenue Railway Company
| Decision Date | 11 June 1901 |
| Citation | 63 S.W. 814,163 Mo. 260 |
| Parties | RUCKERT, Appellant, v. GRAND AVENUE RAILWAY COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.
Affirmed.
Rudolph Laughlin for appellant.
(1) This appeal is prosecuted directly to this court as involving the construction of the Constitution. Constitution, art. 6 sec. 12; Amend. 1884, sec. 5. (2) The trial court exceeded its jurisdiction, and usurped the province of the statutory commission. R. S. 1889, sec. 1825; Lindell's Adm'r v. Railroad, 36 Mo. 545; Koch v. Water Co., 65 Pa. St. 288; Brown v. Beatty, 34 Miss 227; Taylor v. Railroad, 80 Mich. 81; Milhau v. Sharp, 27 N.Y. 621; Henniker v. Railroad, 29 N.H. 146; Railroad v. Turner, 41 Ark. 494; McIntire v. Railroad, 67 N.C. 278. (3) The action of the trial court in exceeding its jurisdiction and usurping the province of the statutory commission was not due process of law. Black on Constitutional Law, sec. 153, p. 424; Pennoyer v. Neff, 95 U.S. 733; In re Kelly, 46 F. 654; Lent v. Tillson, 140 U.S. 330; In re Frederich, 51 F. 747; Scott v. McNeal, 154 U.S. 46; Burton v. Platter, 53 F. 901; 1 Black on Judgments, sec. 242, p. 294; Seamster v. Blackstock, 83 Va. 234; Wade v. Hancock, 76 Va. 625; Ex parte Lange, 18 Wall. 176; Ex parte O'Brien, 127 Mo. 490; 7 Robinson's Practice, p. 107. (4) The fact that the revision of the Act of 1887, in the Revised Statutes of 1889, omits the title and the enacting and emergency clauses and slightly changes the phraseology of the act, does not "change, modify, or alter the law." Dart v. Bagley, 110 Mo. 51; Creason v. Railroad, 17 Mo.App. 116; Bowen v. Railroad, 118 Mo. 546; R. S. 1889, sec. 6608. (5) The act of 1887 is a general law, concerning the relation of incorporated towns and cities to the State, sanctioned by the Constitution to give practical effect to its own commands, enacted in the lawful exercise of the police power of the State, and applicable to every incorporated town and city in the State, including the city of St. Louis. Kansas City v. Scarritt, 127 Mo. 642; St. Louis v. Dorr, 145 Mo. 481; State ex inf. v. Railroad, 151 Mo. 182; Constitution, art. 9, secs. 20, 23, 25; Ewing v. Hoblitzelle, 85 Mo. 64; Constitution, art. 9, sec. 7; Constitution, art. 2, sec. 21; Kenefick v. St. Louis, 127 Mo. 1; State ex rel. v. Higgins, 125 Mo. 364; St. Louis v. Murnane, 123 Mo. 479; State ex rel. v. Bell, 119 Mo. 70; State ex rel. v. Railroad, 117 Mo. 1; State v. Bennett, 102 Mo. 356; State ex rel. v. Miller, 110 Mo. 439; Glassner v. Brewing Assn., 100 Mo. 508; Ferrenbach v. Turner, 86 Mo. 419; State ex rel. v. Tolle, 71 Mo. 645; Thomas v. Ashworth, 73 Cal. 73. (6) The act of 1887 applies to a surface street railroad, such as that constructed by the respondent. Act of 1887, secs, 1, 2; Booth on Street Railway Law, sec. 1; R. S. 1889, sec. 6570; Nichols v. Railroad, 87 Mich. 371; Clement v. Cincinnati, 16 W. L. B. 355. (7) The Act of 1887 is not to be construed and governed by the decisions which construe and govern section 21 of article 2 of the Constitution, because: (a) The Constitution delegates to the General Assembly, not alone the authority specifically recited, but above and beyond that the inherent legislative sovereignty of the State, unshackled and supreme, save only so far as controlled by the limitations of the Constitutions of the State and of the Nation. Lloyd v. Railroad, 49 Mo. 199; Black on Constitutional Law (Ed. 1895), p. 8; Clark v. Mitchell, 64 Mo. 576. (b) It follows that the act is sovereign law, and not the mere machinery which puts section 21 of article 2, of the Constitution, into force. That section is self-inforcing. State v. Lubke, 15 Mo.App. 152; Householder v. City of Kansas, 83 Mo. 488; Railroad v. Railroad, 97 Mo. 467; Railroad v. Story, 96 Mo. 611. (c) Damages, within the meaning of the Constitution, are physical only, and do not include a depreciation in the value of property. Rude v. St. Louis, 93 Mo. 416; Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 97 Mo. 92; Van de Vere v. Kansas City, 107 Mo. 83; Glasgow v. St. Louis, 107 Mo. 198; Davis v. Railroad, 119 Mo. 180. Damages, under the statute, are expressly defined to be the depreciation in the value of property. R. S. 1889, sec. 1826. (d) The question of damages, under the Constitution, is a question of law to be passed on by the court. Householder v. Kansas City, 83 Mo. 496. The question of damages, under the statute, both as to their existence and extent, is a question of fact to be passed on by the commission of freeholders in the manner provided by the act. R. S. 1889, sec. 1825. (8) The Act of 1887 is to be construed and applied with reference to the prior state of the law, and to the evils which prompted and induced its enactment, and which it was designed to remedy. State ex rel. v. Hostetter, 137 Mo. 649; Greely v. Railroad, 123 Mo. 163; Dowdy v. Wamble, 110 Mo. 283; City of Albany v. Gilbert, 144 Mo. 231. (9) The Act of 1887 confers a new and additional right on the abutter; a right entirely separate and apart from any question of damages; a right for whose invasion there is no adequate remedy at law; a right which equity will recognize and protect. Bispham's Principles of Equity (5 Ed.), pp. 553, 582; Evans v. Railroad, 64 Mo. 453; Roberts v. Easton, 19 Ohio St. 78; Beeson v. Chicago, 75 F. 880; Griswold v. Brega, 160 Ill. 490; McMichael v. Railroad, 31 A. 477; Milhau v. Sharp, 27 N.Y. 622; McIntyre v. Storey, 80 Ill. 127; Railroad v. Quincey, 136 Ill. 489; Wright v. Shanahan, 61 Hun, 264; Manchester Cotton Mills v. Manchester, 25 Gratt. 827; Wilkins v. St. Paul, 33 Minn. 181; Railroad's Appeal, 104 Pa. 399. (10) Whenever a right involves the performance of a condition precedent, an injunction is the proper remedy to enforce that right. Bispham's Principles of Equity (5 Ed.), 582; State v. Lubke, 15 Mo.App. 161; Evans v. Railroad, 64 Mo. 453; Beeson v. Chicago, 75 F. 880; Roberts v. Easton, 19 Ohio St. 78; Taylor v. Railroad, 80 Mich. 82.
Boyle, Priest & Lehmann, Lon O. Hocker and Geo. W. Easley for respondent.
(1) The record discloses that respondent's road was constructed for the transportation of passengers in cars moved by electric power over tracks laid even with the surface of the street, and plaintiff neither alleged nor proved that his ingress to or egress from his property, or any other right appertaining to his property, was injured. In such a case the injunction was properly denied and the bill dismissed. Placke v. Railroad, 140 Mo. 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. Rapid Transit Co., 20 A. 859; Lumberger v. Rapid Transit Co., 30 S.W. 533; Louisville Bagging Co. v. Central Passenger Co., 95 Ky. 50, 44 Am. St. Rep. 203; Howe v. Railroad, 167 Man. 46, 44 N.E. 386; Koch v. Railroad, 75 Md. 222, 23 A. 463; Williams v. Railroad, 41 F. 556. (2) The appellant neither alleged nor proved any such special or peculiar damages 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. Van de Vere 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, created a new right. They only reserved 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. Rep. H. L. 474); Rigney v. Chicago, 102 Ill. 64; Shawneetown v. Mason, 82 Ill. 343; Hyde Park v. Dunham, 85 Ill. 576. (4) The statute (R. S. 1889, sec. 1825) can have no application to surface street railways. Such railway does not come in the same class with elevated or underground railways, and the expression "elevated or underground railways" being followed by the words "other street railways," the latter words must be confined to railroads of the same kind previously specified. Sutherland on Statutory Const., sec. 268; State v. Schuchmann, 133 Mo. 111. (5) The position maintained by counsel for appellant, that the statute created an exclusive mode of ascertaining the damages, is not tenable. 10 Am. and Eng. Ency. Law, title "Electric Railways," p. 907; Lewis on Eminent Domain, secs. 607, 636; Lindell's Admr. v. Railroad, 36 Mo. 545; Soulard v. St. Louis, 36 Mo. 546; Hickman v. Kansas City, 120 Mo. 117; McReynolds v. Railroad, 110 Mo. 484. (6) Appellant is estopped from asserting equitable remedy by injunction, and must be remitted to his action by law. City of Logansport v. Uhl, 99 Ind. 531.
On the fourth day of October, 1894, the plaintiff filed in the circuit court of the city of St. Louis, his petition in the nature of a bill in equity, to enjoin the defendant, a street railway company, from constructing, maintaining and operating a line of surface street railway on Grand avenue, in said city of St. Louis.
The petition alleges the incorporation of the respondent under the laws of Missouri; that there was duly passed and enacted by the municipal assembly of the city of St. Louis a certain ordinance, numbered 17047, which was duly approved by the...
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