State ex rel. City of St. Louis v. Missouri Pacific Railway Company

• Decision Date: 31 December 1914
• Citation: 174 S.W. 73,262 Mo. 720
• Parties: THE STATE ex rel. CITY OF ST. LOUIS v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

174 S.W. 73

262 Mo. 720

THE STATE ex rel. CITY OF ST. LOUIS v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

December 31, 1914

Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.

Affirmed.

James F. Green for appellant.

(1) Under the Public Service Commission law the Public Service Commission is vested with exclusive jurisdiction as to the matter of the separation of grade crossings, and, nothing having been done under said ordinance providing for the separation of grades at Chouteau avenue, this proceeding instituted by the city should be dismissed. Elec. L. & P Co. v. St. Louis, 253 Mo. 592; State ex rel. v. Gas Co., 254 Mo. 515; State ex rel. v. Superior Court, 120 P. 861; State ex rel. v. Railroad, 142 N.W. 185; Railroad v. Spokane County 134 P. 689; Emporia v. Tel. Co., 133 P. 858. (2) The city of St Louis can pass no ordinance which is in conflict with the Constitution, statutes or common laws of the State: Secs. 16, 20, 22, 23 and 25, Art. 9, Constitution; City v. Hoblitzelle, 85 Mo. 78; St. Louis v. Dorr, 145 Mo. 477; St. Louis v. Kaime, 180 Mo. 321; St. Louis v. Meyer, 185 Mo. 591; St. Louis v. Klausmeier, 213 Mo. 125; St. Louis v. Wortman, 213 Mo. 131; Dillon on Mun. Corp. (4 Ed.), p. 145; St. Louis v. Dreisoerner, 147 S.W. 998. (3) The granting of a writ of mandamus is largely in the discretion of the court, and should never be issued in doubtful cases. State ex rel. v. Bridge Co., 206 Mo. 74; State ex rel. v. McIntosh, 205 Mo. 610; State ex rel. v. Buhler, 90 Mo. 560; State ex rel. v. Railroad, 77 Mo. 147; High on Extraordinary Remedies, sec. 9; Merrill on Mandamus, sec. 62; 2 Morawetz on Private Corporations (2 Ed.), sec. 1134; Tipping on Mandamus, secs. 324-327; 19 Am. & Eng. Ency. Law (2 Ed.), 751. (4) Under the charter of the city of St. Louis and the statutes of Missouri prior to the enactment of the Public Service Commission law, when it became necessary to separate grade crossings, the railway company had the right to cause the street to go under or over the railroad tracks. The ordinance arbitrarily requires the railway company to build a viaduct at its own expense, ignoring the option given by said statutes. Secs. 3049, 3141, 10626, R. S. 1909; Van Note v. Railroad, 70 Mo. 641; Turner v. Railroad, 78 Mo. 578; Terry v. Railroad, 89 Mo. 586; Pratt v. Railroad, 139 Mo.App. 511; People v. Railroad, 74 N.Y. 304; Railroad v. St. Louis, 66 Mo. 228. (5) The ordinance in controversy does not declare the crossing of Chouteau avenue with defendant's tracks a public nuisance; nor does it declare that said grade crossing is dangerous; it states no reason for requiring a separation of grades at said point. (6) The ordinance is unreasonable, because it does not require the city or the street railway company to pay any portion of the expenses incident to the construction of the viaduct, nor any portion of the consequential damages. Bd. of Aldermen v. Railroad, 89 N.E. 438; In re Mayor of Taunton, 70 N.E. 48; Detroit v. Railroad, 120 N.W. 603. (7) Relator seeks in this proceeding to compel the railway company to assume and pay all of the damages consequent upon the construction of the viaduct, in contravention of the statute, which requires the establishment of a benefit district "to pay for the damages which may be caused to any property by reason of the construction of such subway or viaduct and its approaches." Sec. 44, Laws 1911, p. 333; Sec. 8588, R. S. 1909.

William E. Baird for respondent.

(1) At the time of the passage of the ordinance, February 28, 1911, the city of St. Louis undoubtedly had the power to pass the ordinance in question, and to require a railroad company to abolish grade crossings. Tobacco Co. v. St. Louis, 247 Mo. 374. (2) The enactment of the Public Service Commission law, approved March 17, 1913, did not nullify the ordinance in question. Superior v. Roemer, 154 Wis. 345; Miller v. Railroad, 133 Wis. 183; Wells v. Remington, 118 Wis. 573; Elec. L. & P. Co. v. St. Louis, 253 Mo. 592; Dillon, Mun. Corps. (5 Ed.), sec. 235; State ex rel. v. Severance, 55 Mo. 386; Wills v. Railroad, 133 Mo.App. 625; E. St. Louis v. Maxwell, 99 Ill. 443; Wood v. Election Comrs., 58 Cal. 561; State v. Williams, 80 Tenn. 251. (3) While the granting of a writ of mandamus is largely in the discretion of the court, nevertheless, where the lower court has exercised its discretion and awarded the writ, the appellate court should not reverse the judgment unless it is clear that the lower court abused its discretion. State ex inf. v. Gas Co., 254 Mo. 515. (4) Neither section 3049 nor section 3141, R. S. 1909, permitting a railroad to make a road or street pass under its tracks, is a grant of power to the railroad. This provision of the law merely permits the railroad to make a street or road pass under its tracks, and is not a limitation upon the power of the city. It does not give an unconditional option to the railroads. People ex rel. v. Railroad, 177 N.Y. 337. Sec. 8588, R. S. 1899, as amended by the Act of April 11, 1911 (Laws 1911, p. 332), refers solely to cities of the first class, and therefore does not apply to the city of St. Louis. State ex rel. v. Mason, 153 Mo. 52; Kansas City v. Stegmiller, 151 Mo. 204; State ex rel. v. Mason, 155 Mo. 486. (5) It was not necessary that there should have been a finding by the Municipal Assembly of the fact that the grade crossing in question constituted a nuisance, nor that there should have been a declaration to that effect by the assembly or other municipal agency, or that the railroad should have received a notice of the intention to enact the ordinance. Young v. City, 47 Mo. 492; Kiley v. Forsee, 57 Mo. 394; Railroad v. Maguire, 49 Mo. 480; Harrelson v. Railroad, 151 Mo. 482; Health Department v. Trinity Church, 145 U.S. 32; Texas v. Interstate Co., 155 U.S. 585. (6) The question of reasonableness of the ordinance cannot be discussed, for the reason that the point was not properly raised by the pleadings. An ordinance may, indeed, be void for unreasonableness, but the question can only be raised by a proper statement of the facts in the pleadings showing the ground of attack. Conshohocken Borough v. Light Co., 29 Pa. Sup. 7; Bradford v. Jones, 141 Ky. 820; Neary v. Railroad, 41 Mont. 480; McQuillin, Municipal Ordinances, sec. 327.

BROWN J. Bond, J., dissents.

OPINION

In Banc

BROWN, J.

-- Mandamus to compel the submission of plans for a public viaduct. From a judgment for plaintiff defendant appeals.

On February 28, 1911, the city of St. Louis, Missouri, through its legislative department, duly enacted an ordinance which required the defendant, at its own expense, to construct a steel viaduct and approaches thereto over defendant's railroad tracks where the same cross Chouteau avenue, a public street of said city. This ordinance will hereafter be designated as the viaduct ordinance. The length, height, materials and general description of the proposed viaduct are recited in the ordinance. It also contains the following important provisions: (1) That within four months after it becomes effective the defendant shall submit to the Board of Public Improvements of plaintiff city plans, profiles, detailed drawings and specifications for the proposed viaduct and approaches thereto. (2) That within six months after the approval of said plans, etc., by the Board of Public Improvements the defendant must begin the actual work of constructing the viaduct and complete the same within eighteen months after the work is begun; (3) The failure to perform any of the things required by the ordinance is declared a misdemeanor punishable by fine.

The defendant failed to submit plans, etc., to the Board of Public Improvements, as required by the viaduct ordinance, and on August 10, 1911, this action of mandamus was instituted to compel defendant to submit said plans, profiles, etc., for the proposed viaduct.

In its return to the alternative writ issued herein by the circuit court, the defendant admits that Chouteau avenue is and was at the time the viaduct ordinance took effect a public street of plaintiff city used by pedestrians and vehicles, and that defendant was operating its railroad across said street. In its return defendant has set up many constitutional and other alleged grounds why the alternative writ of mandamus should be quashed and no absolute writ issued. Some of these defenses were abandoned, but such of them as are properly before us for review will receive attention in connection with the conclusions we have reached.

Stipulations which form part of the evidence upon which the case was tried admit that the defendant's railroad tracks were constructed across the land where Chouteau avenue is now located before said avenue was opened as a public street; admit that the city has not created a district within which private property would be benefited by the construction of the viaduct, and that the defendant refused and still refuses to submit plans, etc., for the construction of the viaduct to the Board of Public Improvements of plaintiff city.

The oral evidence tends to prove that defendant maintains five or six railroad tracks across Chouteau avenue where the ordinance requires the viaduct to be constructed, and that there is a double-track street railroad of the United Railways Company on the same street. Also that upon one side of said street at the point where the ordinance requires the viaduct to be constructed there is a stoneyard, a lumberyard, a roundhouse and a six-story packing plant; and upon the other side of said street a three-story boarding house and six residences, some of them two-story buildings and others one-story.

The defendant offered to prove that the proposed viaduct would cost more than $...