St. Louis R.R. Co. v. South St. Louis R.R. Co.

• Decision Date: 30 April 1880
• Citation: 72 Mo. 67
• Parties: ST. LOUIS RAILROAD COMPANY v. SOUTH ST. LOUIS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

72 Mo. 67

ST. LOUIS RAILROAD COMPANY

v.SOUTH ST. LOUIS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Louis Gottschalk, I. C. Terry, Broadhead, Slayback & Haeussler and Irwin Z. Smith for appellant.

Smith P. Galt and Geo. A. Madill for respondent.

HOUGH, J.

When the case of the St. Louis Railroad Company against the Northwestern Railroad Company was before this court in 1878, (69 Mo. 65,) it was rather assumed than directly decided, that the act of January 16th, 1860, was still in force. The judgment of the court of appeals which was before us for review in that case, proceeded upon the theory that the act named had not been repealed, and the judgment of the circuit court was based upon the same view, and although the question of the repeal of the act of 1860 was presented by the record, it was not urged in the argument, and we did not, therefore, discuss the question in our opinion. We examined the matter, however, sufficiently to satisfy ourselves, at that time, that the act of 1860 had not been repealed, and in our opinion assumed that such was the fact. Of course the decision in that case could not have been rendered except upon the theory that the act of 1860 was still in force. This question has been elaborately argued in the case now before us, and we are asked for a direct adjudication as to that matter.

We will preface what we have to say upon this point by observing, first, that in our opinion the plaintiff in this case has a right to invoke the provisions of the act of 1860 if they are still in force as against the defendant; and, second, that the provisions of said act prohibiting the construction of parallel roads within three blocks of each other, were primarily intended as police regulations, incidentally affording a qualified exemption from competition to the roads coming within the scope of the act, but subject to repeal or modification, whenever, in the opinion of the legislature, the public necessities should demand it.

It is contended by the defendant that the act of 1860 was repealed by the act of February 15th, 1864, and that it is also in conflict with the charter of the city of St. Louis passed March 19th, 1866, the charter passed March 13th, 1867, the charter passed March 4th, 1870, and the present charter of said city.

The section of the act of February 15th, 1864, relied on by the defendant as repealing the act of 1860, is as follows: “That the city council of the city of St. Louis shall have full power, with the approval of the mayor, to determine all questions arising with reference to street railroads in the corporate limits of said city, whether such questions may involve the incorporation of companies to construct such street railroads, granting the right of way or regulating and controlling any such railroads after their completion.” This section is a grant of legislative power and is in effect, though not in form, an amendment of the city charter. Conceding, as is claimed by the defendant, that this section delegated to the city council of St. Louis all the power over the subject of street railroads possessed by the legislature, and that it, therefore, authorized the city council to pass ordinances granting the right of way to street railroads in conflict with the provisions of the act of the legislature of January 16th, 1860, yet, until such ordinances were passed, it is perfectly obvious that the provisions of the act of 1860 remained in force. The grant of unrestricted legislative power to the city council over the whole subject of street railroads, could not of itself, repeal the act of 1860. The power of repeal was at most. simply granted to the city council, and until such power was exercised by that body, the statute remained unaffected by the grant. The bare statement of this proposition is sufficient to demonstrate its truth. Now the right claimed by the defendant to construct a parallel road within three blocks of the plaintiff's road is under an ordinance passed by the municipal assembly of the city of St. Louis on July 16th, 1878. By reference to the revised charter of the city of St. Louis passed March 19th, 1866, it will be seen that the mayor and city council are given sole power and authority “by ordinance not inconsistent with any law of this State, * * to grant the right to any person or persons, corporation or company, to make and construct street railways in any street in said city, and to regulate and control the same and the use thereof,” (Acts 1865-6 p. 283, art. 4, § 1, clause 51,) and all...