The State ex rel. Greffet v. Williams
| Decision Date | 30 March 1910 |
| Citation | 127 S.W. 52,227 Mo. 32 |
| Parties | THE STATE ex rel. JULIUS E. GREFFET and ROSALIE GREFFET v. GEORGE H. WILLIAMS, Judge, ST. LOUIS ELECTRIC TERMINAL RAILWAY COMPANY, E. RAYMOND KINSEY, BERNARD HUFFT and JOSEPH DARST |
| Court | Missouri Supreme Court |
Writ denied.
Kinealy & Kinealy for relators.
(1) The abutting property-owners, or any of them, have not consented to the construction, maintenance or operation by respondent railroad company of a general railroad for the conveyance of freight, or of other than a street railway, and without that consent respondent railway company cannot operate such a railroad on or across any streets of St. Louis, and therefore cannot condemn property for such a railroad in that city. R S. 1899, sec. 6119. (2) The St. Louis Electric Terminal Railway Company cannot lawfully operate a standard railroad carrying freight as well as passengers, or lay tracks for that purpose, or for any other railroad organized under article 2, chapter 12, R. S. 1889, because it has not received the consent of the municipal authorities of St Louis to do so. R. S. 1899, sec. 1035, clause "fourth," second sentence. (3) The St. Louis Electric Terminal Railway Company cannot condemn property in this city for a railway to carry passengers and freight where its only right to construct or operate a railroad in the city is that conferred by an ordinance permitting it to construct maintain and operate a street railroad, and a railroad company cannot condemn property for use of another corporation. Railroad v. Railroad, 119 Ala. 105; Railroad v. Byrnes, 119 N.Y. 142; Wilder v Railroad, 216 Ill. 526; Miller v. Railroad, 88 N.E. 102; Swinney v. Railroad, 59 Ind. 219; Brickles v. Railroad, 134 Wis. 358; David Bradley Mfg. Co. v. Railroad, 229 Ill. 170; Gillette v. Railroad, 228 Ill. 261; Harvey v. Railroad, 174 Ill. 295; Beckman v. Railroad, 112 N.W. 348. (4) The permission or power given respondent to construct, maintain and operate a street railway is not enlarged by the requirements in the ordinance to connect with the bridge or with the Illinois railroads so as to permit it to operate a railroad to carry freight or exercise eminent domain. The city cannot grant corporate franchises; it can only consent or contract on lawful conditions for the use of its streets. State ex rel. v. Railroad, 85 Mo. 275; Dewey v. Railroad, 184 Ill. 426; Shreveport Tr. Co. v. Railroad, 119 La. 759; Railroad v. Railroad, 10 Wall. 38. (5) If respondent has any rights whatever in the streets of St. Louis -- which we deny -- they are only those of a street railway company acting under an ordinance. Brickles v. Railroad, 134 Wis. 358; David Bradley Mfg. Co. v. Railroad, 229 Ill. 170. (6) If respondent railway company be deemed a street railway, it can acquire property in this city only "by purchase, lease or other lawful contract," or by grant. R. S. 1899, sec. 1187, clauses "seventh" and "fourth;" Railroad v. Putney, 62 A. 727. (7) Respondent as a street railway company cannot locate its tracks outside the streets named in the ordinance in the absence of a statutory provision permitting it to do so. Hence it could not condemn relator's lot even if a street railway company had power to condemn. Harvey v. Aurora Co., 174 Ill. 308; Dewey v. Railroad, 184 Ill. 432; R. S. 1899, secs. 1175 and 1187, clause 4. (8) A street railway company cannot exercise the power of eminent domain in Missouri. Railroad v. Railroad, 2 Mo.App. 74; Sams v. Railroad, 174 Mo. 80. (9) A railroad company organized for the carriage of freight and passengers, but which has acquired a permissive ordinance to operate a street railway, cannot condemn property for the use of such street railway. Harvey v. Railroad, 174 Ill. 295; Wilder v. Railroad, 216 Ill. 493; Railroad v. Railroad, 119 Ala. 105; David Bradley Mfg. Co. v. Railroad, 229 Ill. 170. (10) A street railway company cannot exercise the power of eminent domain unless by express statutory authority and only to the extent given by the statute. Elliott on Railroads, p. 57, sec. 1096F; Elliott on Roads and Streets (2 Ed.), sec. 738, p. 798; Railroad v. Putney, 62 A. 727; Harvey v. Railroad, 174 Ill. 295; Piedmont Mills v. Railroad, 131 Ga. 144; Thomson-Houston Co. v. Simon, 20 Ore. 60; Dewey v. Railroad, 184 Ill. 426. (11) The respondent St. Louis Electric Terminal Railway Company has no authority to construct, maintain or operate any kind of railroad within the limits of the city of St. Louis. R. S., p. 342, sec. 1035, clause "fourth;" Wilder v. Railroad, 216 Ill. 493; David Bradley Mfg. Co. v. Railroad, 229 Ill. 170.
Edward C. Crow for respondents.
(1) The writ of prohibition will not lie to prevent condemnation proceedings, because of the incapacity of the petitioner to maintain such proceedings, where the circuit court has jurisdiction to condemn property to public use, in the exercise of the right of eminent domain. State ex rel. v. Railroad, 100 Mo. 59. The circuit court in the case at bar had power to entertain proceedings of the general class to which this case belongs, namely, proceedings for the condemnation of property for public use. It therefore had jurisdiction of the subject-matter. State ex rel. v. Railroad, 100 Mo. 61; Postlewaite v. Geislein, 97 Mo. 424. (2) Interurban railroad has express statutory power to condemn property to same extent as an ordinary steam railroad. R. S. 1899, sec. 1174a. (3) The amendment of 1907 conferring the power of eminent domain upon interurban electric railroads is in pari materia with articles 2 and 7 of chapter 12, Revised Statutes 1899, containing the law of eminent domain for steam railroads, and confers on interurban electric railroads all the powers of a steam railroad to condemn property for its use. Mallott v. Railroad, 108 F. 313; Lewis on Eminent Domain (3 Ed.), sec. 404; Garton v. Lampkin, 115 Mo. 33; Lewis' Sutherland on Statutory Construction (2 Ed.), secs. 405, 408, 442; Chappel v. United States, 81 F. 764; Postal T. C. Co. v. Railroad, 98 F. 190; State ex rel. v. Doring, 173 Mo. 504; Saler v. Barber Asphalt Co., 166 Mo. 504. Section 1035, Revised Statutes 1899 (being section under which steam railroads are incorporated and receive their power), provides "Sixth, to take and convey persons and property on their railroad by the power or force of steam or of animals or by any mechanical power." (4) Respondent St. Louis Electric Terminal Railway is an interurban railroad. An interurban railway, as commonly understood in the first decade of the twentieth century, means an electric railway operated through and between different cities and towns and carrying only passengers, or passengers, freight and express. 1 Lewis on Eminent Domain (3 Ed.), sec. 165; Mallott v. Railroad, 108 F. 313. (5) The articles of association, the ordinance of St. Louis and the testimony in the case show the respondent railway company is not a street railway company but an interurban electric railway company. (6) It is not necessary that consent of a city to use its streets be first given to enable a legally organized railroad company to condemn private property for its use for a public purpose. Railroad v. Kimball, 61 Cal. 90; Railroad v. Railroad, 87 Ill. 317. (7) The right to condemn comes from the State. Railroad v. Railroad, 87 Ill. 317. (8) It is not competent in this collateral proceeding to consider whether respondent railway company has a right to use the streets of St. Louis. Railroad v. Railroad, 87 Ill. 317; Ulmer v. Railroad, 66 L. R. A. 395; 17 Ency. Pl. & Pr., 409; Sewanee Falls Bridge v. Firk, 23 N.H. 171. A railroad company may be organized under the general railroad law to construct a railroad wholly within a city. Lewis on Eminent Domain (2 Ed.), sec. 256, 107 Ill. 450; St. Louis Transfer Co. v. Railroad Co., 111 Mo. 673.
OPINION
In Banc.
Prohibition.
Relators instituted this proceeding in this court, on August 5, 1909, against the respondents, to prohibit Kinsey, Hufft and Darst, respondents from taking any action as commissioners, appointed by Hon. Geo. H. Williams, one of the judges of the circuit court of the city of St. Louis, to assess compensation to relators for damages sustained by them in a proceeding instituted by the respondent, the St. Louis Electric Terminal Railway Company, for the purpose of condemning a lot of ground owned by relators, situate in the city of St. Louis. Judge Williams was also made a party.
A preliminary writ was ordered and made returnable on the first day of the October Term, 1909, of this court. Respondents filed their return thereto, and relators answered, and raised thereby certain questions of fact. Thereupon, by agreement of parties, this court appointed Hon. Moses Sale, of the city of St. Louis, referee to hear the evidence, make a finding of the facts and report the same to this court. In compliance with that order, the referee took the evidence, found the facts and reported them to this court. While the record covers several hundred pages of printed matter, yet the facts, insofar as they are material, are comparatively few, and practically undisputed, which are substantially as follows:
The respondent, the St. Louis Electric Terminal Railway Company, is a corporation organized and incorporated under the laws of this State in pursuance to article 2, chapter 12, Revised Statutes 1899, with its principal office in the city of St. Louis. The charter of said company authorized and empowered it to construct, maintain and operate a standard gauge railroad (as stated in the language of counsel for respondents) "for the conveyance of persons and property in the State of Missouri from a point on or near the west bank of the Mississippi river, in the city of St....
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