Union Depot R. Co. v. Southern Ry. Co.

• Decision Date: 29 June 1891
• Parties: UNION DEPOT R. CO. v. SOUTHERN RY. CO. et al.
• Court: Missouri Supreme Court

16 S.W. 920

105 Mo. 562

UNION DEPOT R. CO. v. SOUTHERN RY. CO. et al.

Supreme Court of Missouri.

June 29, 1891.

STREET RAILROADS — RIGHT TO USE EACH OTHER'S TRACKS — COMPENSATION.

1. A street-railway company, by accepting the provisions of a city charter enacted after its organization, and all ordinances then or thereafter passed relative thereto, stands in the same position that it would had such charter and ordinance gone into effect before it was incorporated.

2. Article 10, § 6, of the charter of St. Louis provides that "any street-railroad company shall have the right to run its cars over the track of any other street-railroad company on payment of just compensation for the use thereof, under such rules and regulations as may be prescribed by ordinance; and it shall be the duty of the municipal assembly to immediately pass such ordinances as may be necessary to carry this provision into effect." Held that, an ordinance having been passed giving the right to use tracks, the only thing necessary to perfect the right was to have the "just compensation" ascertained, as provided by ordinance.

3. Proceedings under an ordinance providing that when the right to use the tracks of one company has been granted to another company, and the two cannot agree as to compensation, it shall be determined by commissioners appointed by the mayor, do not involve the exercise of the right of eminent domain.

4. Under said article 10, § 6, of the charter of St. Louis, the city has the power to make rules and regulations, not only for running the cars of one company over the tracks of another, but also for ascertaining the compensation to be paid therefor.

5. Under said section, the assembly has also the implied power to make the award reviewable by the circuit court.

Affirming 15 S. W. Rep. 1023.

SHERWOOD, C. J., dissenting.

In banc. Appeal from St. Louis circuit court; JAMES A. SEDDON, Judge.

Lubke & Muench and L. Bell, for appellants. Hitchcock, Madill & Finkelnburg and Smith P. Galt, for respondent.

BLACK, J.

The plaintiff and the first-named defendant are corporations owning street railroads in the city of St. Louis. Prior to the date next mentioned, the defendant's road extended southward six or eight miles from the crossing of Sixth and Market streets. The city, by ordinance approved 19th July, 1887, gave defendant the right to extend its road from the crossing of Sixth and Market streets east on Market street to Fifth street, thence north on that street some ten blocks, thence west one block, thence south on Sixth street to place of beginning, thus forming a loop. This ordinance also conferred upon the defendant the right to use that part of the plaintiff's track extending for a distance of two blocks on and along Sixth street, upon paying the plaintiff compensation for such use, under the provisions of ordinance 12,652, enacted to carry into effect section 6 of article 10 of the city charter. The plaintiff and the defendant corporation having failed to agree as to the compensation to be paid for the use of that part of the defendant's road extending along the two blocks, the plaintiff applied to the mayor for the appointment of commissioners to assess such compensation. The mayor was about to comply with such request, when the plaintiff commenced this suit against the defendant company and the mayor, seeking to restrain them from taking any further action in the matter. The circuit court awarded a temporary injunction, which was made perpetual on the final hearing, and from that decree the defendant appealed to this court. The substantial facts, not before stated, are these: The present charter of the city of St. Louis took effect on the 22d October, 1876. It was framed, and adopted by the voters, pursuant to the constitution of 1875. It took the place of and superseded the then charter, and all amendments thereof. Const. 1875, art. 9, § 20. The tenth article of the charter treats of street railroads, and gives the municipal assembly power to determine all questions arising with reference to them, whether such questions may involve the construction, granting the right of way, or regulating and controlling them after their completion; also the power to regulate the time and manner of running cars, and the rates of fare, and to establish a uniform gauge. The sixth section is in these words: "Any street-railroad company shall have the right to run its cars over the track of any other street-railroad company, in whole or in part, upon the payment of just compensation for the use thereof, under such rules and regulations as may be prescribed by ordinance and it shall be the duty of the municipal assembly to immediately pass such ordinances as may be necessary to carry this provision into effect." Ordinance No. 12,652, approved January 12, 1884, was designed to carry into effect said section 6 of the charter. This ordinance provides, in substance, that when one company is authorized by ordinance to run its cars over the track of another company and the two companies cannot agree as to the compensation to be paid therefor, the company desiring to use such track may make written application to the mayor for the appointment of three commissioners, first giving ten days' notice to the company whose track is to be used. Each company has the right to name one commissioner, and the mayor the third. If either company should refuse to designate a commissioner, the mayor may appoint one to represent such company. The commissioners must be disinterested freeholders, must take and subscribe an oath that they will faithfully and fairly hear and examine the matter in controversy, and make a just award to the best of their understanding, and then proceed to hear evidence, and examine the track, and determine the compensation to be paid, and the time and manner of paying the same. Their award is to be in writing, and must be reported to the mayor. It is then the duty of the mayor to file the report, and the original application, and all papers pertaining to the proceeding, with the city register, and it is made the duty of the register to notify the parties in interest. Either party may appeal to the circuit court by filing written exceptions, "and the court may thereupon make such order therein as right and justice may require, and may order a new appraisement in the manner hereinbefore prescribed, upon good cause shown." The plaintiff was incorporated on the 11th May, 1876, and acquired all the franchises and property of a then existing street-railroad company, which was incorporated in 1859. The plaintiff, it will be seen, was incorporated a few months prior to the adoption of the present city charter; but thereafter it extended its road, from time to time, by right acquired under ordinances passed after the present charter took effect. One of these ordinances, which was approved November 3, 1883, contains this clause: "Said Union Depot Railroad Company shall not acquire any privileges, rights, or franchises under this ordinance unless said company files with the city register, within sixty days from approval of this ordinance, its acceptance in writing of all the provisions of this ordinance, and also of all the provisions of sections 5 and 6 of article 10 of the city charter, and all ordinances now existing or hereafter to be passed relating thereto." This ordinance was duly accepted by the plaintiff.

1. Although the plaintiff, the Union Depot Railroad Company, was incorporated prior to the date when the present city charter took effect, still, by accepting the ordinance last mentioned, approved 3d November, 1883, it agreed to and did become subject to sections 5 and 6 of article 10 of the charter, and to all ordinances then or thereafter passed pursuant to those sections. As to those sections of the charter, and all valid ordinances enacted to put them in force, the plaintiff stands in the same position that it would had it been incorporated, and acquired the right to operate its road on the streets, after the charter went into effect. We believe there is no serious dispute as to these propositions; but the plaintiff does question the validity of general ordinance No. 12,652.

2. The plaintiff, in terms, disclaims the right to use the streets now occupied by it to the exclusion of all other street railroads; but it insists — First, that the defendant can acquire the right to run its cars over the plaintiff's track only by the exercise of the right of eminent domain; second, that the municipal assembly of St. Louis has no power to enact laws for the exercise of that right by one street railroad over the property of another like company; third, if the charter attempts to confer such power upon the assembly, then such charter provisions are unconstitutional and void; fourth, if the charter is valid, and even confers such power, then ordinance No. 12,652 is invalid, because it does not give the plaintiff a trial by jury, and for various...