St. Louis R. Co. v. Southern Ry. Co.

• Decision Date: 29 June 1891
• Citation: 105 Mo. 577,16 S.W. 960
• Parties: ST. LOUIS R. CO. v. SOUTHERN RY. CO.
• Court: Missouri Supreme Court

16 S.W. 960

105 Mo. 577

ST. LOUIS R. CO. v. SOUTHERN RY. CO.

Supreme Court of Missouri.

June 29, 1891.

STREET RAILROADS — RIGHT TO USE EACH OTHER'S TRACKS — AMENDMENT OF FRANCHISE.

After plaintiff, a street-railway company, had received its charter and established its road, the legislature granted the city a new charter, which provided that any street-railroad company should have the right to run its cars over the track of any other street-railroad company, on payment of a just compensation for the use thereof, under such regulations as the city should prescribe, and the city was required to pass the ordinances necessary to carry the provision into effect. Plaintiff afterwards accepted from the city additional franchises, and agreed to conform to any ordinance then existing, or thereafter to be passed, enforcing the charter. Held, that plaintiff conceded the right of other street-railroad companies to use its tracks on payment of just compensation, and became subject to an ordinance subsequently passed providing the mode of ascertaining the compensation. Following St. Louis R. Co. v. Southern Ry. Co., 15 S. W. Rep. 1013.

In banc. Appeal from St. Louis circuit court; JAMES A. SEDDON, Judge.

Lubke & Muench, Leverett Beel, and William C. Marshall, for appellant. Hitchcock, Madill & Finkelnburg and Smith P. Galt, for respondent.

PER CURIAM.

The plaintiff in this case, though incorporated prior to the adoption of the present charter of the city of St. Louis, obtained from the city additional rights, under ordinances passed since the present charter went into effect. By one of these ordinances, approved March 27, 1883, the plaintiff agreed to "conform to any ordinance now existing or hereafter passed enforcing article 10 of the city charter, not inconsistent with the provisions of this ordinance." There is no substantial difference between this case and that of the Union Depot Railroad Company against the defendant in this case. 16 S. W. Rep. 920. On the authority of that case, the judgment in this one is reversed, and the cause remanded, with directions to the circuit court to dismiss the petition.

BARCLAY, J., absent. The other judges concur.

THOMAS, J. (concurring.)

In addition to the statement of facts made by BLACK, J., in the case of Union Depot R. Co. v. Southern Ry. Co., 16 S. W. Rep. 920, (decided at this term,) I will state such other facts as are necessary to a full understanding of the questions involved. From the pleadings and evidence it appeared that, after the charter of the city, said St. Louis Railroad Company accepted from the city, in the manner therein required, ordinance 12,477, approved March 27, 1883, of which ordinance the following sections, numbered 4 and 5, are part: "Sec. 4. The St. Louis Railroad Company shall not be entitled to any of the rights or franchises granted by this ordinance, unless within thirty days from the approval thereof it file with the city register its written acceptance of the terms and conditions of said ordinance, and also its penal bond in the sum of twenty thousand dollars, payable to the city of St. Louis, to be approved by the mayor and council, conditioned that said St. Louis Railroad Company shall and will perform and comply with all the terms and conditions of this ordinance. Sec. 5. It is expressly understood that, by the acceptance of the provisions of this ordinance by the St. Louis Railroad Company, said company waives all rights it may have to streets within three blocks of this railway, claimed under the act of the general assembly approved January 16, 1860, and that it will conform to any ordinance now existing or hereafter passed enforcing article 10 of the city charter, not inconsistent with the provisions of this ordinance." On the 2d day of August, 1887, ordinance No. 12,477 was amended by the municipal assembly, by ordinance, so as to enlarge the rights and franchises of respondent. This amendatory ordinance required respondent to file its acceptance thereof within 30 days after its passage, in order to enjoy the new franchises granted, which respondent did. A temporary injunction was granted, which on a hearing was made final, and defendant appeals.

The true relation of the city of St. Louis to the St. Louis Railroad Company is the question of prime importance in this case. The argument in support of the decree of the trial court is based upon the assumption that the city was about to attempt to appropriate the property of this company for the use of the Southern Railway Company by the exercise of the paramount right of eminent domain, and, the city having no such power under the constitution and laws of Missouri, this attempt, if the city were permitted to consummate it, would be an arbitrary and illegal invasion of the property rights of respondent, and therefore ought to be enjoined by a court of equity. If this assumption be correct, there would be much force in the argument, but we regard the relation between the city and the St. Louis Railroad Company as contractual, as contradistinguished from legal. If there exist between the city and this company a valid contract, then the right and powers of the respective parties must be determined by reference to the terms of that contract rather than the law. If there be a contract, therefore, it will be unnecessary for us to inquire into and determine the nature of the right of eminent domain, and the manner of its exercise, as well as the question as to the extent of the city's right of eminent domain.

The present charter of the city was adopted by the people of the city under a constitutional provision of the state. It must, however, be regarded simply as a legislative grant. In other words, this charter has no greater force and effect than it would have if the general assembly had enacted it, but it does have that force and effect. The city government is not an imperium in imperio, but, as to all matters of local concern, its authority and power are exclusive, to the extent declared by the charter, where it does not conflict with the constitution and laws of the state. Full authority is conferred upon the city government to open and improve the streets, and control their use. Indeed, all cities have this power. The state is prohibited by section 20, art. 12, of the constitution, from passing any law granting the right to construct and operate a street railroad in any city, town, village, or public highway without the consent of the local authorities. But in an especial manner is the city of St. Louis clothed with plenary power by its charter in regard to the construction of railways in its streets. By section 1, art. 10, of the charter above quoted, it has full power to determine all questions in reference to street railways. Hence, when it grants the right of way in its streets to a street-railway corporation, it does not proceed in the exercise of the power of eminent domain, but it proceeds in the exercise of its right of ownership of the streets, and it is limited in the exercise of this right to the extent only that the grant shall be for public use and convenience.

Let us examine, now, what relation the city of St. Louis and respondent sustain to each other under the charter and ordinances of the municipal government. Respondent's original charter antedated the present charter of the city, and its franchises could not have been destroyed or made less valuable by the municipal assembly, except by virtue of the former's charter or consent. The present city charter went into operation the 22d day of October, 1876. On the 27th day of March, 1883, respondent obtained from the city additional franchises and rights. In order to obtain and enjoy these, it was required to agree, and it did agree, to conform to any ordinances then existing or thereafter to be passed enforcing article 10 of the city charter, not inconsistent with the provisions of the ordinance granting the new franchises. The petition, answer, and arguments of counsel on both sides in this case proceed upon the theory that respondent was, at the commencement of this action, and is now, enjoying its rights and franchises under the charter of St. Louis of 1876, and must conform to its requirements. So far, then, as the questions involved in this case are concerned, the respondent's charter rights must be held to have originated under the city charter of 1876, and are subject to it. By section 6, art. 10, of the charter of the city, it is provided that "any street-railroad company shall have the right to run its cars over the track of any other street-railroad company, in whole or in part, upon the payment of just compensation for the use thereof, under such rules and regulations as may be prescribed by ordinance; and it shall be the duty of the municipal assembly to immediately pass such ordinances as may be necessary to carry this provision into effect." One thing is definitely settled by this provision, and that is, all street railroads in St. Louis are public highways. Any street-railroad company has the right to run its cars over the track of another company, and the only limitation on this right is that just compensation shall be made, and the consent of the city obtained, subject to control at all times by the city. Another proposition is settled by the record in this case, and that is, a street railroad is for use that is public. A city has no authority to grant its streets for any use that is private. Belcher Sugar-Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121. The petition in this case avers that the defendant corporation is a street-railway company, operating cars to carry passengers. Thus the respondent virtually concedes that the Southern Railroad Company is using the streets of St. Louis for a public purpose, and proposes to use respondent's track for a public purpose. Glaessner v. Association, 100 Mo. 508, 13 S. W. Rep. 707; Mikesell v. Durkee, 34 Kan. 509, 9 Pac. Rep. 278. The respondent...