St. Louis R.R. Co. v. Northwestern St. Louis Ry. Co.

• Decision Date: 25 April 1876
• Citation: 2 Mo.App. 69
• Parties: THE ST. LOUIS RAILROAD COMPANY, Appellant, v. THE NORTHWESTERN ST. LOUIS RAILWAY COMPANY, Respondent.
• Court: Missouri Court of Appeals

2 Mo.App. 69

THE ST. LOUIS RAILROAD COMPANY, Appellant,

v.THE NORTHWESTERN ST. LOUIS RAILWAY COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 25, 1876.

1. It appears that, under “An act to authorize the formation of railroad associations, and to regulate the same,” approved December 13, 1855, it was competent to organize a street railway company in the city of St. Louis. But, in any event, such a company having been constituted under the forms prescribed in said act, an act of the General Assembly, approved January 16, 1860, recognizing the corporate organization, and defining its powers, etc., was effectual to place the existence of the corporation beyond question. Such an act was not “retrospective in operation.”

2. Section 3 of an act of the General Assembly provides: “No street railway shall hereafter be constructed * * * nearer to a parallel road than the third parallel street from any road now constructed, or which may hereafter be constructed, except the roads hereinbefore mentioned.” Held, that the true interpretation permits the construction of a railway nearer than the third parallel street from one of “the roads hereinbefore mentioned;” but forbids such construction within that distance from any other.

APPEAL from St. Louis Circuit Court.

Affirmed.

Glover & Shepley, for appellant, cited: Emfield Toll Bridge Co. v. Hartford Toll Bridge Co., 17 Conn. 40; Hartford Bridge Co. v. East Hartford, 16 Conn. 149; Pesquatequa Bridge Co. v. Bridge Co., 7 N. H. 35; Boston & Lowell R. R. Co. v. Salem & Lowell R. R. Co., 2 Gray, 1; Washington Bridge Co. v. The State, 18 Conn. 53; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Binghampton Bridge Co., 3 Wall. 51; Home of the Friendless v. Rowse, 8 Wall. 438; Washington University v. Rowse, 8 Wall. 440; Dartmouth College v. Woodward, 4 Wheat. 518; Piqua Branch State Bank of Ohio v. Knoop, 16 How. 369; Dodge v. Wolsey, 18 How. 331; Jefferson Branch Bank v. Shelby, 1 Black, 436; Franklin Branch Bank v. Ohio, 1 Black, 474; Washington Bridge Co. v. The State, 18 Conn. 53.

Jacob Klein and Hitchcock, Lubke & Player, for

respondent, cited: McCandle's Appeal, 70 Pa. St. 210, 214, 217; Ancient City Sportman's Club v. Miller, 7 Lans. 412; People ex rel. v. Nelson, 46 N. Y. 477; Session Acts 1858-9, p. 165, sec. 22, pp. 171, 443, sec. 3, p. 444; Cooley's Const. Lim. 191, 192, 195, 207, 281, 282, 283, 396; 1 Dill. on Mun. Corp., secs. 46, 55 (and note), 61, 296 (and note), 387; Illinois, etc., Canal Co. v. St. Louis, 2 Dill. 70; City of St. Louis v. Grone et al., 46 Mo. 574; Booth v. Town of Woodbury, 32 Conn. 118; Webster v. Town of Harwinter, 32 Conn. 131; Leavenworth. v. Norton, 1 Kan. 432; Kyle v. Malin, 8 Ind. 34; Hitchcock v. St. Louis, 49 Mo. 484; People's R. R. Co. v. Memphis R. R. Co., 10 Wall. 38, 50, 52, 53; Witham v. Sharp, 17 Barb. 435; 18 Barb. 228; 27 N. Y. 611; Davis v. Mayor, etc., 14 N. Y. 506; State v. Mayor, etc., 3 Duer, 119; Lackland v. North Missouri R. R. Co., 31 Mo. 180, 187; 1 Redf. on Rys. (5th ed.), secs. 258, 319, 320, 333; 2 Dill. on Mun. Corp., sec. 575; City v. Laughlin, 49 Mo. 559; Ruggles & Bigler v. Collier, 43 Mo. 353; San Francisco & Oakland R. R. Co. v. Oakland, 43 Cal. 502; Morris & Essex R. R. Co. v. City of Newark, 2 Stock. 352; Collins v. Hatch, 18 Ohio, 523; Rev. Stat. 1855, pp. 425, 1027; Sedgw. on Stat. and Const. Law (2d ed.), 141 (note), 143; People v. Law, 34 Barb. 494; Peterson v. Mayor, etc., 17 N. Y. 449, 454; Const. of Mo. 1820; Rev. Stat. 1855, p. 85, sec. 17; City v. Clemens, 52 Mo. 133; State v. Auditor, 33 Mo. 287; Hope Mutual Ins. Co. v. Flynn, 38 Mo. 483; Brutsang v. Wolf, 35 Mo. 174; McManning v. Farrar, 46 Mo. 376, 377; 1 Am. Law Reg. (N. S.) 193, 201, 205, 207; 2 Greenl. Cruise on R. Prop. 67; 3 Pars. on Con. (6th ed.), secs. 539, 541; West River Bridge Co. v. Dix, 6 How. 533; Matheny et al. v. Goldens, etc., 5 Ohio St. 375; Illinois & Michigan Canal v. Chicago & Rock Island R. R. Co., 14 Ill. 314; Mott v. Pennsylvania R. R. Co., 30 Penn. St. 9; Louisville City Ry. v. Louisville, 8 Bush, 415; City of St. Louis v. Manufacturers' Savings Bank, 49 Mo. 574; City of St. Louis v. Life Association of America, 53 Mo. 466; Commissioners v. Northern Liberties Gaslight Co., 12 Pa. St. 318; Frankford, etc., R. R. Co. v. Philadelphia, 58 Pa. St. 119; Commonwealth v. Pennsylvania Coal Co., 66 Pa. St. 41; Cooley's Const. Lim. (3d ed.), secs. 394, 395; West End & Atlanta St. R. R. Co. v. Atlanta R. R. Co., 49 Ga. 151; Chenango Bridge Co. v. Binghampton Bridge Co., 27 N. Y. 87, 102, 103; Rice v. R. R. Co., 1 Black, 358; Auburn & Cato Plank Road Co. v. Douglas, 9 N. Y. 444, 452; Louisville & Portland R. R. Co. v. Louisville City R. R. Co., 2 Duv. 175; Oakland R. R. Co. v. Oakland, Brooklyn, etc., R. R. Co., 45 Cal. 365, 378; Norwich Gaslight Co. v. Norwich City Gaslight Co., 25 Conn. 19; State v. Cincinnati Gaslight and Coke Co., 18 Ohio St. 262; Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420; Tuckahoe Canal Co. v. Tuckahoe & James River R. R. Co., 11 Leigh, 42; Illinois & Michigan Canal Co. v. Chicago & Rock Island R. R. Co., 14 Ill. 314; Brooklyn City & Newton R. R. Co. v. Coney Island, etc., R. R. Co., 35 Barb. 364; 33 Barb. 358, 423; Sixth Avenue R. R. Co. v. Kerr, 45 Barb. 138; Jersey City & Bergen R. R. Co. v. Jersey City & Hoboken Horse R. R. Co., 20 N. J. Eq. 61; Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen, 262, 269; Commonwealth v. Central Passenger R. R. Co., 52 Pa. St. 506, 518; Pike v. Megoun, 44 Mo. 491, 499; 1 Dill. on Mun. Corp., sec. 57; Cooley's Const. Lim. (2d ed.), secs. 67, 70; St. Louis Gaslight Co. v. City of St. Louis, 46 Mo. 121; State v. Binder, 38 Mo. 450; State v. Clarke, 54 Mo. 17.

LEWIS, J., delivered the opinion of the court.

Plaintiff, claiming to be a corporation under the laws of Missouri, authorized to construct and operate a street railway in the city of St. Louis, alleges that, by an act of the General Assembly, approved January 16, 1860, certain exclusive privileges were bestowed upon it, the effect whereof was, and is, a prohibition against the construction of any street railroad parallel to plaintiff's, and nearer than the third parallel street therefrom; that defendant, at the filing of the petition, was about to construct a railway on a street parallel to that occupied by plaintiff, and next adjacent to it, for a distance of nine blocks, or about a half mile, to plaintiff's irreparable injury, etc. Plaintiff, therefore, prayed an injunction restraining and forbidding the construction of such parallel railway, and for general relief. The injunction was refused by the Circuit Court, whereupon plaintiff appealed.

Many questions are raised by defendant touching the plaintiff's corporate existence, the powers of the municipal government of St. Louis, the legislative authority to ratify void or voidable proceedings, the validity of retrospective legislation, and of grants of exclusive privileges. But, as our disposition of this cause will be controlled by an interpretation of the act of January 16, 1860, it seems unnecessary to do more than state briefly our conclusions on these questions, without extended discussion.

The plaintiff was organized in February, 1859, under “An act to authorize the formation of railroad associations, and to regulate the same,” approved December 13, 1855, for the purpose of “constructing, maintaining, and operating a railroad for the conveyance of persons and property, to be worked by horse-power only, from Bellefontaine cemetery to the southern boundary of the city of St. Louis, over and along certain streets of said city.” By city ordinance No. 4371, approved March 10, 1859, and by an amendatory ordinance, No. 4467, approved June 30, 1859, plaintiff was authorized to construct and operate its railroad from the northern boundary of the city, at its intersection with the Bellefontaine road, upon and over the following streets, to wit: “From said intersection southwardly along the line of and through said road and Broadway, with a double track, to O'Fallon; thence continuing southwardly, with a double track, down Fifth street to such street, between Market and Myrtle streets, as the said company might select; thence, with a single track, west on the street so selected to Seventh street; thence south on Seventh street, with a single track, to its junction with Carondelet avenue; thence, with a double track, to the then southern city limit; thence, returning, with a single track, from the said intersection of Carondelet avenue with Seventh street, northwardly along Carondelet avenue and Fifth street, till it strikes the double track of the said road on Fifth street.” The first section of “An act concerning street railroads in the city of St. Louis,” approved January 16, 1860, was as follows:

“Section 1. The St. Louis Railroad Company, the People's Railway Company, and the Citizens' Railway Company, as hereinbefore organized under the act to authorize the formation of railroad associations, and to regulate the same, approved December 13, 1855, are hereby ratified and confirmed in their respective rights under said law, and the roads now built or commenced, and the gauge of track established by said companies, is sanctioned; and said gauge of four feet ten inches is hereby recognized as the legal gauge of all other street railroads that may be built in the city and county of St. Louis. Said companies shall conform to, and be governed by, said law concerning railroad associations, except as follows: First, said companies shall not be required to carry freight; second, the report made to the city comptroller shall be in lieu of an annual report required to be made to the secretary of state by the law under which said companies organized.”

These several acts and proceedings, defendant contends, were of no avail to establish the plaintiff's corporate existence. It is argued that the act of December 13, 1855, had exclusive reference to railroads...