St. Louis, Iron Mountain & Southern Railway Co. v. City of St. Louis

• Decision Date: 06 June 1887
• Parties: The St. Louis, Iron Mountain & Southern Railway Company v. The City of St. Louis, Appellant
• Court: Missouri Supreme Court

4 S.W. 664

92 Mo. 160

The St. Louis, Iron Mountain & Southern Railway Company v. The City of St. Louis, Appellant

Supreme Court of Missouri

June 6, 1887

Appeal from St. Louis City Circuit Court. -- Hon. Wm. H. Horner Judge.

Affirmed.

Leverett Bell for appellant.

(1) The judgment of the county court in this case was appealable there being no provision of law expressly prohibiting such appeal. R. S., sec. 1210. The appeal was taken in the same manner as an appeal from a justice of the peace to the circuit court. The case, therefore, should have been tried anew in the circuit court, under section 1210 of the Revised Statutes above referred to. (2) The instruction asked by appellant, above set forth, should have been given. The right to occupy streets in a city with the consent of the county court of the county in which such city is situated, contained in the original charter of the Iron Mountain Railroad Company, of 1851, is a mere police regulation, which it was competent for the state legislature to change at any time, by substituting the city authorities in the place of the county court. The provision in question did not constitute a contract between the state and the railroad company. It is now well-settled law that state legislatures cannot contract as to subjects affecting public health, or public morals, so as to limit the future exercise of legislative power on those subjects, to the prejudice of the general welfare. Butchers Union Co. v. Crescent City, 111 U.S. 746. The essential franchise of a railroad company is the right to operate its road and receive fare and freight. The legislature has power to require existing roads to maintain cattle-guards at crossings, or to respond in damages for cattle injured through such omission. The subject comes clearly within the police power of the state, the power to regulate which resides inalienably in the state legislature. Thorpe v. Railroad, 27 Vt. 140. A statute requiring a railroad to fence its road is a police regulation, and one that may be prescribed after the road has been constructed even where the charter of the company is not subject to amendment. Railroad v. Tilton, 12 Ind. 3; Railroad v. McClelland, 25 Ill. 140. (3) In Owen v. Railroad, 83 Mo. 454, it was held that the St. Louis and San Francisco Railway Company is subject to the provisions of the constitution and laws of this state, and that a corporation created under the existing constitution cannot acquire by purchase rights from any corporation or individual, which it is forbidden by said constitution to exercise. (4) The cause tried should have been tried in the circuit court in the same manner as if it had originated there, without regarding any error, defect, or informality in the proceedings of the county court. R. S., sec. 1211. The present charter of St. Louis went into effect on October 21 1876. Under its terms the mayor and assembly have power and authority to grant to persons or corporations the right to construct railways in the city. 2 R. S., p. 1587, par. 11, sec. 26, art. 3. The county of St. Louis ceased to include within its limits the city of St. Louis, on October 21, 1876. (5) The plat in the present case shows that the proposed railroad tracks extend from Carondelet to Bremen, and occupy streets in the most densely-populated part of the city. As a matter of public policy, as well as of strict law, privileges of the character in question should not be granted without the consent of the municipal corporation of St. Louis.

T. J. Portis and Bennett Pike for respondent.

(1) The granting of the order by the county court was the exercise of a discretionary power from which no appeal lies. Foster v. Dunklin, 44 Mo. 217; Strahan v. County of Audrain, 65 Mo. 644; Washington County v. Boyd, 64 Mo. 182; State v. Strowbridge, 56 Mo. 129; Syracuse Bank v. Railroad, 9 Am. & Eng. Ry. Cases, 585; People v. Railroad, 42 N.Y. 217; Enos v. Thomas, 5 How. Pr. 359; Simmons v. Railroad, 4 Am. & Eng. Ry. Cases, 137; Railroad v. Dunbar, 5 Am. & Eng. Ry. Cases, 270; Appeal of Kings Co. Ry., 2 Am. and Eng. Ry. Cases, 431; In re Com'rs of Washington Park, 56 N.Y. 156. (2) If an appeal from such an order were allowable, the city was not the proper party to take it. St. Louis Zinc Co. v. Hesselmeyer, 50 Mo. 180; Foster v. Dunklin, 44 Mo. 217; City of St. Louis v. Railroad, 66 Mo. 228. (3) If it be held that the appeal from the county court was authorized by law and was properly taken by the city, then it is insisted that the circuit court could only review the action of the county court, and not try the case de novo. Foster v. Dunklin, 44 Mo. 219; County of St. Louis v. Lind, 42 Mo. 348; Bernard v. Callaway County, 28 Mo. 37; Overbeck v. Galloway, 10 Mo. 364. (4) The grant to the railway company of the right to lay its tracks along and across the streets and wharf of the city of St. Louis, in section 11 of its charter, became vested in said company upon the county court giving its assent thereto by an order duly made, after being satisfied "that no great injury would be done to the public" thereby, and such grant could not be impaired in any manner by any subsequent legislation. Railroad v. St. Louis, 66 Mo. 228; City of St. Louis v. Shields, 62 Mo. 252; Railroad v. Laclede County, 57 Mo. 147; Barry County v. Railroad, 57 Mo. 149; Lawrence County v. Railroad, 57 Mo. 149; Railroad v. Cass County, 53 Mo. 26; Land v. Coffman, 50 Mo. 251; Chambers v. St. Louis, 29 Mo. 576; Maguire v. Railroad, 20 Wall. 36; Railroad v. Bailey, 22 Wall. 215; Dartmouth College v. Woodward, 4 Wheat. 519; Bank v. Oakley, 4 Wheat. 235; Ross v. Railroad, 77 Ill. 127; Cooley's Const. Lim, 252; Simmons v. Railroad, 4 Am. & Eng. Ry. Cas. 137; Railroad v. Dunbar, 5 Am. & Eng. Ry. Cas. 270.

OPINION

Black, J.

The St. Louis, Iron Mountain & Southern Railway Company presented its petition to the county court of St. Louis county, asking for the right to lay its tracks upon certain streets and alleys in the city of St. Louis. The matter was continued from time to time in order that the objections of various persons and corporations might be heard. The city of St. Louis, by its law officer, appeared and insisted that the court had no jurisdiction over the subject matter, but the court made the order as prayed for, and the city appealed to the circuit court. The proceedings remained in that court from 1876 to 1885 without any steps having been taken by either party, when the plaintiff filed a motion to dismiss the appeal, on the ground that the act of the county court was purely discretionary, and not the subject of review, and that the city was no party to the proceedings, and had no right to prosecute an appeal. The motion was sustained; and the only question here is whether the appeal should have been dismissed for the reason stated in the motion.

By the charter of the St. Louis & Iron Mountain Railroad Company, and the special act therein mentioned (Laws of 1851, page 479; Laws of 1837, page 271), it is provided: "The company shall have full power and authority to build said road along or across any state or county road, or the streets and wharves of any town or village, whether corporate or otherwise; * * * but before such right shall vest in said company, they shall apply to the county court, of the proper county, for such right, and, having filed in the office of the recorder a plat of said road and the manner in which it is to cross said roads or streets, or other public way, and if the county court are satisfied that no great injury will be done to the public, they may, by an order of said court, give the right to said company to use the same for that purpose."

The present corporation claims to have succeeded to the rights of the former one, and it is under this special act that the county court made the order. On the other hand the city insists that the county court lost the power to give the right-of-way over the streets, and that that power became vested in the city authorities, by reason of section 56 and the fifth paragraph of section 28, of the general railroad law of 1853 (Laws of 1853, page 121), and for the further reason that, in 1874, the St. Louis & Iron Mountain Railroad Company was consolidated with the Cairo, Arkansas & Texas Railroad Company, and the name of the corporation remained unchanged. Subsequently, in the same year, the St. Louis & Iron...