Seibel-Suessdorf Copper v. Manufacturers' Railway Company

• Decision Date: 19 July 1910
• Citation: 130 S.W. 288,230 Mo. 59
• Parties: SEIBEL-SUESSDORF COPPER & IRON MANUFACTURING COMPANY et al., Appellants, v. MANUFACTURERS' RAILWAY COMPANY
• Court: Missouri Supreme Court

130 S.W. 288

230 Mo. 59

SEIBEL-SUESSDORF COPPER & IRON MANUFACTURING COMPANY et al., Appellants, v. MANUFACTURERS' RAILWAY COMPANY

Supreme Court of Missouri, Second Division

July 19, 1910

Appeal from St. Louis City Circuit Court. -- Hon. Wm. M. Kinsey Judge.

Affirmed.

Jas. P Kerr, N. P. Zimmer and Wiget & Hamilton for appellants.

(1) Equity cases are heard de novo in the Supreme Court, and the court will review the whole case on the evidence. McElroy v. Maxwell, 101 Mo. 294; Benne v. Schnecko, 100 Mo. 250; Blount v. Spratt, 113 Mo. 48; Lins v Lenhardt, 127 Mo. 271; Courtney v. Blackwell, 150 Mo. 245. (2) By the findings, judgment and decree of the court as rendered and entered, plaintiffs would be deprived of their private property; and private property of plaintiffs would be damaged for public use, without just compensation, contrary to article 2, section 20, of the Constitution of Missouri, no compensation having been ascertained by a jury or board of commissioners in the manner prescribed by law. (3) By the decree of the court in the enforcement thereof, plaintiffs would be deprived of property without due process of law, and their private property taken for public use without just compensation, contrary to the Fifth and Fourteenth Amendments to the Constitution of the United States. (4) The ordinance is in violation of the Fourteenth Amendment. Ex parte Quong Woo, 13 F. 229; Yick Wo v. Hopkins, 118 U.S. 356; Ex parte Sing Lee, 31 P. 245. (5) Defendant's answer is an express aider to plaintiffs' petition (if the allegation that "defendant has no right or lawful authority to do any of the acts herein set forth," be regarded as a conclusion of law), defendant having chosen in its answer to supply the defect (if any) of the petition by putting in issue itself the fact of the validity of the ordinance. Allen v. Chouteau, 102 Mo. 318; Garth v. Caldwell, 72 Mo. 629; Hughes v. Carson, 90 Mo. 402; Grace v. Nesbit, 109 Mo. 15; Donaldson v. Butler County, 98 Mo. 163; Stivers v. Horne, 62 Mo. 473; Henry v. Sneed, 99 Mo. 407; Bliss on Code Pleading (2 Ed.), sec. 437 et seq.; Pomeroy's Code Remedies (3 Ed.), sec. 579; Beckman v. Insurance Co., 49 Mo.App. 607; Dillard v. McClure, 64 Mo.App. 488; McAllister v. Walker, 69 Mo.App. 496; Heffernan v. Supreme Council, 40 Mo.App. 605; Price v. Protection Co., 77 Mo.App. 236; Jackson v. Powell, 110 Mo.App. 249. (6) The court erred in ruling that plaintiffs' reply to defendant's answer, and the facts alleged in said reply, were a departure in pleading from plaintiffs' petition, and the cause of action therein stated, and that therefore plaintiffs could not introduce evidence under their pleadings attacking the validity of the city ordinance under which defendant claims the right to build the proposed railroad. Mortland v. Holton, 44 Mo. 64; Courtney v. Blackwell, 150 Mo. 278; Smith v. Woodmen, 179 Mo. 119; Chemical Co. v. Lackawanna, 70 Mo.App. 280; Rich v. Donovan, 81 Mo.App. 184; Gould's Pleading (5 Ed.), sec. 78; 1 Chitty's Pleading, p. 674; Phillip's Code Pleading, pp. 254, 255; Insurance Co. v. Nexon, 84 Ind. 350; Railroad v. Cahill, 8 Colo.App. 154; Johnson v. Cummings, 12 Colo.App. 23. (7) The court erred in ruling at the trial that even if there was a departure in pleading new matter in the reply, the same was not waived by defendant's failure to take advantage thereof by motion to strike out or by special demurrer, and that therefore plaintiffs could not introduce evidence under their pleadings attacking the validity of the city ordinance under which defendant claims the right to build the proposed railroad. Philibert v. Burch, 4 Mo.App. 470; Ricketts v. Hart, 73 Mo.App. 654; Bliss, Code Pleading (3 Ed.), sec. 396, p. 607; 1 Chitty on Pleading (16 Am. Ed.), pp. 814, 815; Kannaugh v. Mining Co., 16 Colo. 344; Trust Co. v. Simpson, 5 Colo.App. 30; Barboux v. Backer, 4 Met. (Ky.) 48; Ankeny v. Clark, 148 U.S. 345; New v. Wambach, 42 Ind. 456; 6 Cyc. 468-9; Keay v. Goodwin, 16 Mass. 1. (8) The municipal assembly cannot delegate its public powers and trusts. The city ordinance under which the defendant claims the right to build the proposed road is void, because section three contains a delegation of authority by the municipal assembly to the board of public improvements. 1 Dillon, Mun. Corp. (4 Ed.), pp. 154 and 156; Cooley, Const. Lim. (5 Ed.), 249; Ruggles v. Collier, 43 Mo. 353; Sheehan v. Gleason, 46 Mo. 100; Murphy v. Clemens, 43 Mo. 395; Matthews v. Alexandria, 68 Mo. 115; St. Louis v. Russell, 116 Mo. 248; St. Louis v. Heitzeburg, 141 Mo. 375; Tregman v. Chicago, 78 Ill. 405. (9) The other provisions of the ordinance are so dependent on, and interwoven with, section three, that if the latter be void the entire ordinance is thereby invalidated. Kirkwood v. Meramec Highlands Co., 94 Mo.App. 645; Warren v. Mayor, 2 Gray (Mass.) 84; State ex rel. v. Perry Co., 5 Oh. St. 507; Employers' Liability Case, 207 U.S. 463; Slawson v. Racine, 13 Wis. 398; New Orleans v. Morgan, 1 La. Ann. 116. (10) The power of municipal authorities to grant a railroad company the right to lay its tracks along the streets is not absolute. They cannot do so if the operation of the railroad will destroy the street as a public thoroughfare. Knapp v. Railroad, 126 Mo. 35; Lockwood v. Railroad, 122 Mo. 86; Dubach v. Railroad, 89 Mo. 483; Brown v. Railroad, 137 Mo. 536; Swinhart v. Railroad, 207 Mo. 435; Pepper v. Railroad, 113 Tenn. 53. (11) Neither can the municipal authority grant the power to a railroad company of such use of a street as will destroy or unreasonably interfere with the right of access to or egress from one's property. Lockwood v. Railroad, 122 Mo. 86; Lackland v. Railroad, 31 Mo. 181; Pepper v. Railroad, 113 Tenn. 53; Swinhart v. Railroad, 207 Mo. 435; Schopp v. St. Louis, 117 Mo. 131; Knapp v. Railroad, 126 Mo. 35; Corby v. Railroad, 150 Mo. 457; DeGeofroy v. Railroad, 179 Mo. 722; Loth v. Theatre Co., 197 Mo. 347. (12) The right of the plaintiffs to the use of the street adjoining their lots is as much property as the lots themselves. Lackland v. Railroad, 31 Mo. 180; Householder v. Kansas City, 83 Mo. 488; Sheehy v. Railroad, 94 Mo. 574; Chicago v. Taylor, 125 U.S. 165; Tate v. Railroad, 64 Mo. 149; Spencer v. Railroad, 120 Mo. 154; Heinrichs v. St. Louis, 125 Mo. 424; Christian v. St. Louis, 127 Mo. 115. (13) The court erred in excluding the plats produced in evidence by plaintiffs. 1 Greenleaf on Evidence (Lewis' Ed.), secs. 91 and 484; 2 Wigmore on Evidence, sec. 1218 et seq., sec. 1640.

Nagel & Kirby and Rassieur, Schnurmacher & Rassieur for respondent.

(1) The objection to evidence seeking to attack the validity of the ordinances was properly sustained: (a) Because the offer of evidence was not specific or definite but in general terms and language merely. 9 Ency. Ev., pp. 165, 166; Railroad v. Hicks, 206 Ill. 318; Howard v. Coshow, 33 Mo. 118; Seibert v. Tiffany, 8 Mo.App. 36. (b) Because plaintiffs had themselves shown, by witness Mockler that the necessary written consent of property-owners was filed with the council prior to the final passage of the ordinance. (c) Because the action of the council was in the nature of a judicial finding in pais that the necessary written consent was before it. Railroad v. Cheetham, 58 Ill.App. 318; People v. Rochester, 21 Barb. 656. (d) Because the offer was made in rebuttal, and, the ordinance not having been offered in evidence by defendant, there was nothing at the time before the court to rebut. Glenn v. Stewart, 167 Mo. 584; Babcock v. Babcock, 46 Mo. 243. (e) Because, after offering to attack the ordinance, plaintiffs themselves introduced and read it in evidence. (2) Even though the lower court erred in excluding the evidence which was thus offered, as tending to affect the validity of the ordinance, this court will not now reverse on that ground, because the offer of proof was so broad and vague that it cannot be determined from the record whether the evidence was material. Bank v. Aull, 80 Mo. 199; State v. Martin, 124 Mo. 514; Morton v. Heidorn, 135 Mo. 608. (3) The copies of the assessor's plats were inadmissible: (a) Because they were neither certified nor verified copies. (b) Because, between third persons, as here, the original plats themselves would not have established ownership or title, which was the purpose for which they were offered; but at most would have shown merely to whom the various lots of land were assessed. R. S. 1899, sec. 9169; Commonwealth v. Heffron, 102 Mass. 148; 10 Ency. Ev., p. 728. (c) Because the plats were made as of June 1, 1904, and the ordinance was not introduced in the municipal assembly until the spring of 1905; therefore, even if the plats were evidence of title or ownership, they would not have tended to show such title or ownership in 1905. (d) However, no ruling of the trial court on this subject could have been prejudicial to plaintiffs, since the plats, in point of fact, were received in evidence in connection with the cross-examination of witness Edward Flad and are now a part of the record. (4) The ordinance does not delegate legislative power to the board of public improvements. Section 3 by its own terms authorizes defendant to construct and operate necessary switch tracks. Defendant's authority does not come from the board of public improvements, but from the ordinance itself; subject, however, to the right of the board, as an administrative body, to determine the practicability of construction, and thereby restrict or limit the exercise of the grant. State v. Thompson, 160 Mo. 333; St. Louis v. Mfg. Co., 139 Mo. 560; St. Louis v. Weitzel, 130 Mo. 600; Centralia v. Smith, 103 Mo.App. 439; 6 Am. and Eng. Ency. Law, 1029, 1031. But if section 3 of the ordinance were invalid, it would not affect the entire...