St. Louis & San Francisco Ry. Co. v. Evans & Howard Fire Brick Co.

• Decision Date: 31 October 1884
• Citation: 85 Mo. 307
• Court: Missouri Supreme Court
• Parties: THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Plaintiff in Error, v. THE EVANS & HOWARD FIRE BRICK COMPANY et al. ^a1

85 Mo. 307

THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Plaintiff in Error,

v.THE EVANS & HOWARD FIRE BRICK COMPANY et al. ^a1

Supreme Court of Missouri.

October Term, 1884.

Error to St. Louis Court of Appeals.

REVERSED.

Noble & Orrick and John O'Day for plaintiff in error in this case, and for respondents in the next succeeding case.

(1) Mandamus is not the proper remedy to correct an error, if error there was in this cause. The court below acted judicially in all matters pending before it, and it is not in the power of this court to review that action by mandamus. Railroad v. Lackland, 25 Mo. 527; High on Extraordinary Remedies, secs. 156, 176, 177. Even when the court below refuses to act on the ground of the unconstitutionality of a statute, and when the superior court decides the law to be constitutional. Smith v. Judges, 17 Cal. 547. ( a) The question of right of appeal can be determined on the appeal, and mandamus will not be granted. Blecker v. St. Louis Law Com'rs, 30 Mo. 112; Gale v. Richie, 47 Mo. 326; State v. Lewis, 76 Mo. 370; Ex parte Ry. Co., 60 N. Y. 112; Boller v. Voorhiss, 20 N. Y. 525. ( b) The appeal existing, a supersedeas is granted by law. R. S., 1879, secs. 3713, 3717, 3718; State ex rel. v. Lewis, 76 Mo. 370. ( c) The supersedeas order was judicial action and the jurisdiction to make it will be examined only on appeal. High on Extraordinary Remedies, secs. 156, 176, 177; Strong v. Jay, 2 El. and Bl. 739; Vandever v. Conover, 1 How. (N. J.) 271; Postmaster v. Trigg, 11 Peters 173; People v. Weston, 28 Cal. 639; People v. Judges, 4 Nev. 119; Dunklin Co. v. Dunklin Co. Court, 23 Mo. 449. Mandamus does not lie to vacate order. People v. Judges of Oneida Co., 21 Wend. 20. Nor to change venue. State v. Washburne, 32 Wis. 99; 2 Cowen 458. The discretion of staying proceedings will not be controlled by mandamus. Louisiana v. Judges, 15 La. 521; People v. Superior Court, 19 Wend. 701; Elbert v. Judges, etc., 3 Cow. 59. ( d) The clerk is not amenable to mandamus when the court has made the order. State v. Engleman, 45 Mo. 27. ( e) And the court is not amenable to mandamus when it has already acted. High on Mandamus, supra. (2) On the merits shown on the record the writ should not be granted, because on the record the court below had jurisdiction and decided rightly. ( a) The statute gives the railway company the right to except to the reports of the commissioners, and to a hearing on its exceptions, and if these exceptions are overruled, and a final order of payment is made, an appeal lies as in ordinary cases, with a supersedeas, if asked, as provided for under the statutes. State ex rel. v. Lewis, 76 Mo. 370; R. S., 1879, secs. 894, 896, as to report and exceptions; secs. 3710, 3712, 3713, 3717, 3718, as to appeals and supersedeas; Railroad v. Lackland, 25 Mo. 527; Hudson v. Smith, 9 Wis. 122; Lee v. Railroad, 53 Mo. 178; Railroad v. Schaubacher, 49 Mo. 555; Mississippi River, etc., Co. v. Ring, 57 Mo. 491. ( b) If the payment of the money into court is made during the progress of the hearing of the exceptions, it does not belong immediately to the owner of the land if the railway company does not occupy the land, and the proceedings on final decision by appeal and supersedeas would be as before. ( c) The statute authorizes payment into court as a deposit, filing of exceptions, and, pending the exceptions, gives the right to the company to build the road, authorizing its temporary occupation for this purpose, the fund to remain in court. R. S. 1879, sec. 896; State v. Dickson, 3 Mo. App. 467; Mississippi, etc., Co. v. Ring, 57 Mo. 491. (3) The statute under this construction is constitutional. Const. of Mo., 1875, art. 2, sec. 21; R. S., secs. 894, 896; 1 R. S. 1855, 419; Const. of Mo. 1820, art. 13, sec. 7; Const. of 1865, art. 1, sec. 16; 1 Wag. Stat., 328; Walther v. Warner, 35 Mo. 277; Peterson v. Ferreby, 30 Iowa 337; Bloodgood v. Railroad, 18 Wend. 9; Baker v. Johnson, 2 Hill 342; Smith v. Helmer, 7 Barb. 416; Rubottom v. McClure, 4 Blackf. 505; Pittsburg v. Scott,1 Pa. St. 309; Cushman v. Smith, 34 Me. 247; Miss., etc., Co. v. Ring, 57 Mo. 496; Bradshaw v. Johnson, 20 Johns. 103; People v. Hagden, 6 Hill 359. As to compensation to be provided, see Pierce on Railroads, 161, 163, as to time when compensation must be made, the distinction between “taking” and “occupation,” p. 171. The title must vest before the proceedings are ended, or beyond the control of the legislature. Blackshaw v. Co., 13 Kansas 514; C. B., etc., Co. v. A. T. etc., Co., 28 Kansas 454; N. Y., etc., Co., 60 N. Y. 120; Stacy v. R. R. Co., 27 Vermont 39; Mereno v. Co., 11 C. E. Green, 464. The Ohio cases depend upon the statute, and even they allow the money to remain in court when a new trial is allowed. In Meily v. Zurmehly, 23 Ohio St. 631, it appears no new trial was granted, or the money would have remained in court, and possession would have been authorized but for the fact that the law of 1872 had expressly repealed the law of 1852, which had been in force for twenty years, and which had authorized possession, pending proceedings in error, and while money was in court. In Wagner v. New York, etc., R. R. Co., 38 Ohio St. 32, it was merely decided that the statute did not authorize payment before judgment--and there was no judgment. Yet in that case, even if the money were the land owner's, the court held either party might prosecute error and reverse the judgment. It moreover is based on the last preceding case, which we have just seen rests in the new statute. (4) If the payment into court, pending exceptions, did not in other cases entitle the defendant to the fund, the right to it was not acquired by the subsequent occupation of the premises by the railway company. Such occupation was neither by order of court, by agreement, nor was it waiver. It was authorized by statute, pending exceptions and for further proceedings. R. S., 1879, sec. 896; Peterson v. Ferreby, 30 Iowa 337. It is a gross misconstruction of the railway company's acts and statements in court that it had taken possession, by virtue of these proceedings, before and without any order of court in relation thereto, to hold this was a waiver of exceptions, and the same in legal effect as payment by a defendant of a money judgment duly rendered against him. (5) The court had no authority to strike out the exceptions because of any act of the railway company, and it had a right to allow a supersedeas on final decision, not only under the general law, but in the present proceeding especially. R. S., 1879, secs. 896, 3718. (6) [ a] Eminent domain or the power of the sovereign to condemn private property for public use is an inherent power in the state to be exercised as the legislative department of government deems best, subject only to constitutional restrictions. The principle which provides that private property shall not be taken for public use without compensation was one which existed at common law. It has been embodied in the constitution of every state in the union in some form; but without this incorporation into the constitution the right of the property holder to compensation would be secure and inviolable. Under the general principles of law applicable to the proceedings to condemn land, the appeal vacates and supersedes the finding or report of the commissioners, and the finding being vacated, the amount of damages is not fixed, and cannot be until the final determination of the appeal; hence, until that time the property holder cannot receive his compensation, as it has not been determined, and the occupation of his premises by the authority of the legislature is simply provisional, and is not in conflict with the provision of the bill of rights, which says that his property shall not be taken for public use without just compensation, and that after such compensation is ascertained, the property shall not be damaged, or the proprietary rights of the owner therein divested, until the same is paid to him. The occupation, disturbance and damage prohibited by the constitution until payment is first made, is such as the land owner sustains by the proceedings, resulting in finally appropriating his property to public use, and not the damage which he may sustain in consequence of a provisional occupation, authorized by the statute, pending the final determination and ascertainment of the damages which he will sustain by the appropriation of his land for the purpose for which it is sought to be taken. The words, “payment into court,” mean for security. Blackshire v. Railroad, 13 Kansas, 514; Railway Co. v. Railroad Co., 28 Kansas, 454; Railroad v. Callahan, 13 Kansas, 494; Tracy v. Railroad, 0 Ky. 259; Jackson v. Winn, 4 Littell, 323; Gashweller v. McIlvoy, 1 A. K. Marshall, 61. ( b) If the statute is void, all acts under it are void, and the owner cannot possibly acquire a right to the money because of the deposit intended and directed for an entirely different purpose. (7) [ a] If any part of article six of chapter twenty-one, Revised Statutes, is void, because in conflict with the constitution, the entire statute is null and void. This court has held it is to be considered as a whole. 49 Mo. 455; 57 Mo. 491. ( b) If all the provisions are so dependent upon each other, and operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed the legislature would have passed the one without the other, the whole statute is unconstitutional. Cooley on Constitutional Limitations, 178, 179; Commonwealth v. Hitchings, 5 Gray, 485; Warren et al. v. Mayor, etc., 2 Gray, 84. ( c) While it is undoubtedly true that a statute may be constitutional in part, and unconstitutional in part, yet as a general proposition it has its limitations. Railroad Co. v. Railway Co., 28 Kansas, 458. ( d) If the parts of the statute are so mutually dependent upon each other as to warrant the belief that the legislature intended them as...