State v. Missouri Pac. Ry. Co.

• Decision Date: 27 February 1893
• Citation: 114 Mo. 283,21 S.W. 813
• Parties: STATE ex rel. ATTORNEY GENERAL v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

21 S.W. 813

114 Mo. 283

STATE ex rel. ATTORNEY GENERAL v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 27, 1893.

MANDAMUS TO ENFORCE PRIOR WRIT — PROCEDURE.

1. Where it appears upon the face of an application for mandamus made in October, 1891, to compel respondent railway company to restore its trains between certain points alleged to be wrongfully discontinued, in violation of a final judgment rendered in October, 1883, awarding a peremptory writ to compel respondent to run such trains, that prior to June, 1890, respondent had fully executed all the requirements of such judgment, and that the alleged failure to run such trains occurred after the latter date, the application will be deemed as an application for an original writ, and not as an adjunct to the former proceedings.

2. In Missouri, upon an application for a writ of mandamus, the objection cannot be raised that the application does not state facts sufficient to constitute a ground for the relief sought, as such issue can only be raised upon the return to the alternative writ.

Application by the state, at the relation of the attorney general, for a peremptory writ of mandamus to compel the Missouri Pacific Railway Company to restore its trains between certain points alleged to be wrongfully discontinued. Alternative writ granted.

John M. Wood, for relator. H. S. Priest, for respondent.

BRACE, J.

In an original proceeding by mandamus in this court, at the relation of the attorney general, against the defendant, a final judgment was rendered at the October term, 1883, of said court, and a peremptory writ of mandamus awarded to the plaintiff, directed to the respondent, the Missouri Pacific Railway Company, commanding it, on "or before the 30th of November, A. D. 1884, to rebuild and reconstruct the line of railway between Independence and Kansas City, in Jackson county, Mo., heretofore taken up by the respondent for the purpose of changing its gauge from a narrow to a standard gauge, and for making certain changes in its roadbed and road line, and to extend the standard-gauge road (already constructed from Lexington to Independence, Mo.) from the latter place to Kansas City; and to rebuild and reconstruct the same as a standard-gauge railroad, along and upon the line already located by respondent, and which line, so located, is as follows, to wit, [description of line here follows;] and to equip and furnish the same with cars and rolling stock of all kinds and descriptions necessary and required for the proper and convenient running, operating, and maintaining of the same for the convenience of the public in the carrying of persons and property over the same; and to supply the same with all officers, persons, servants, and things necessary or requisite for the operating, running, and maintaining of the same for the use, benefit, and convenience of the public; and to run, operate, and maintain the same for the use, benefit, and convenience of the public, in the conveyance of persons and property, and for the purposes of traffic and travel, and in full and fair compliance with all and singular respondent's duties, obligations, and liabilities in the premises. And the court doth further order and...