APPEAL from St. Louis Circuit Court.

Lubke & Muench and Leverett Bell, for appellant.

Hitchcock, Madill & Finkelnburg and Smith P. Sault, for respondent.

THOMAS, J.-This is a proceeding by the plaintiff, a street railway company of the city of St. Louis, to restrain the defendant corporation, which is likewise a street railCase stated. way company of said city, from proceeding to appropriate and take possession of a part of plaintiff's railway tracks, under and by virtue solely of a city ordinance of the city of St. Louis. The facts, briefly stated, are as follows: Defendant, the Southern Railway Company, has for a number of years operated a horse railway from Carondelet (South St. Louis) northwardly to the corner of Sixth and Market streets. In the year 1887 defendant thought it advantageous and profitable to extend its road further north to Wash street. To accomplish this object, it determined to run its cars over the tracks of three other street railroads, viz: The Missouri Railroad, one block along Market street; the Union Railway, six blocks along Sixth street; and the Union Depot Railroad, two blocks along Sixth street-thereby (with the aid of but two blocks of original construction) forming a loop, which would begin and end at the regular terminus of defendant's road at the intersection of Sixth and Market streets. the purpose of carrying out the above plan, the defendant company procured an ordinance of the city of St. Louis, being ordinance No. 14,089, approved July 19, 1887, authorizing it to acquire rights of way over the tracks of said three roads, and, in case of failure to agree, attempting to authorize the defendant company to obtain such rights by virtue of city ordinance No. 12,652.

For

Said ordinance No. 12,652 is in words and figures as follows: "An ordinance to carry out the provisions of § 6 of article 10 of the charter of the city of St. Louis, and to prescribe rules to ascertain and fix the compensation for the use of the track or part or parts of track of street railroad companies. Be it ordained by the municipal assembly of the city of St. Louis as follows: Section 1. Any street railroad company, which is or may be hereafter authorized by ordinance of the city of St. Louis to operate a line of street railroad cars along, across, or upon any street or streets of said city, along, across, or upon which street or streets any other street railroad company then owns a street railroad, said first mentioned company may operate and run its cars over the track of said other company, across, along, and upon such streets as it may, by ordinance aforesaid, be authorized to run

and operate its road, upon the payment of just compensation, to be ascertained under the rules and regulations hereinafter prescribed. Sec. 2. When any street railroad company shall desire to operate a line of street cars over the track of any other street railroad company, or part thereof, as provided in the first section of this ordinance, and agreement cannot be had between such companies as to the compensation to be paid therefor by the company so desiring, said compensation shall be ascertained by a commission of three disinterested freeholders of the city of St. Louis, to be chosen and appointed in the following manner, to-wit: The company desiring to use said track may make written application to that effect to the mayor of said city, accompanied by plans and specifications showing the extent of the track it desires to use, first giving ten days' notice in writing to the railroad company whose track it is designed to use, of the time and purport of such application. On receipt of the same, with evidence of notice as aforesaid, the mayor shall forthwith give notice to each of said companies to report to him in writing, within ten days thereafter, the name and address of one disinterested freeholder of the city of St. Louis, to act as its chosen commissioner. Upon the expiration of the ten days aforesaid, the mayor shall forthwith appoint a third disinterested freeholder of the city of St. Louis to act as commissioner, and shall also appoint one such freeholder to represent either of such companies which shall have refused or neglected to appoint a commissioner within the time aforesaid. Thereupon the mayor shall forthwith give notice to the commissioners so appointed of their appointment, and shall turn over to them all papers in his possession relating to the matter in controversy; and in case of vacancy in such board of commissioners, caused by death or refusal to serve of any of said commissioners, or for any other cause whatsoever, the mayor shall appoint a commissioner to fill such vacancy. All the commissioners provided for under the provisions of this ordinance shall be freeholders, resident of the city of St. Louis, and shall not be interested in any manner as stockholders, bondholders, lienholders, or officers or employes of either of the street railroad companies in question. When appointed, said commissioners shall proceed to determine the compensation to be paid, and the time and manner of its payment; provided, that in case one or more street railroad companies shall thereafter be authorized to operate, and do cause to be operated, a line of street railroad cars upon said track, the compensation paid by the company or companies already occupying said track may, upon application of either of said companies to the mayor, be revised and readjusted by a com

mission of three disinterested freeholders, chosen and appointed in the manner herein prescribed; and either party may apply for a readjustment of the terms of compensation once in each period of two years, to be determined as herein prescribed. Sec. 3. The said commissioners, before proceeding to hear any testimony, shall take and subscribe an oath, before some officer duly authorized to administer an oath, that they possess all the qualifications required in the preceding section of this ordinance, and that they will faithfully and fairly hear and examine the matter in controversy, and make a just award, to the best of their understanding, which oath shall be filed and returned with the award. They shall meet together, and view the track or parts of track proposed to be used by the company making the application, and shall hear testimony of witnesses, and the proofs and allegations of the parties to the proceedings, as to the value of said tracks, and as to the compensation to be paid to the company whose track is to be used, and such damages as the commissioners may deem unjust; and upon the close of the testimony shall, without unnecessary delay, make a report in writing of their decision and award, which report shall be signed by them or a majority of them, and addressed and delivered to the mayor forthwith upon its completion. Such commissioners shall be entitled to ten dollars each per day for their expenses and services for the first ten days they are actually engaged in performing their duties, and one dollar for each succeeding day actually employed thereafter, to be paid by the company making the application. Sec. 4. On the reception of the said report of the commissioners by the mayor, he shall file the same, together with the original application, and all papers pertaining to the proceedings, with the city register, and shall immediately notify the parties of the decision of the commissioners, and of the filing of their report, and thereupon, and on payment by the company making the application of the amount of the compensation awarded in said report, or after paying the same into the circuit court for the company whose track it is proposed to use, and upon payment of the costs and expenses of the commissioners, and upon filing with the city register a bond in the sum of twenty thousand dollars, with two good and sufficient securities, owners of unincumbered real estate in the city of St. Louis, which bond shall be approved by the mayor and council-said bond shall be conditioned for the payment to the company whose track or tracks are to be used for such additional compensation as may be ordered to be paid by circuit court on any proceeding therein, as provided in section five of this ordinance-the first. named company shall be entitled, without further delay, to

enter upon and run its cars over the track, or part or parts of the track, mentioned and described in the report of such commissioners. Sec. 5. Upon the filing of such report of said commissioners, the register shall duly notify both parties to the controversy of the filing thereof, and either party to such controversy may, at any time within ten days after the service of such notice as aforesaid, appeal to the circuit court of the city of St. Louis for a review of the report of said commissioners, by filing with the clerk of said court written exceptions to said report, and serving a copy of such exceptions upon the opposite party, together with notice of the time of filing the same; and the court may thereupon make such order therein as right and justice may require, and may order a new appraisement in the manner herein before prescribed, upon good cause shown; but, notwithstanding such appeal, the company may operate its cars over such track or parts of track as the report of the commissioners may designate, and any subsequent proceeding shall affect only the amount of compensation to be paid, and the manner and time of payment. Sec. 6. The company using the track, or part or parts of the track, of another company, under the provisions of the ordinance, shall run its cars while on said track at the same rate of speed as the cars of the company owning said track, and shall construct and keep its connections with the track of the company so as not to delay or interfere with the cars of the company owning the track. Any company using the track of another company, in whole or in part, shall charge no more than one passage over its whole line. Approved January 12, 1884."

Section 6 of article 10 of the charter of the city of St. Louis, which went into force October 22, 1876, and which section is referred to in the title of the above ordinance, is as follows: "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 ordinance as may be necessary to carry this provision into effect." Section 1 of article 10 of said charter is as follows: "The municipal assembly shall have power, by ordinance, to determine all questions arising with reference to street railroads, in the corporate limits of the city, whether such questions involve the construction of such street railroads granting the right of way, or regulating and controlling them after their completion; and also shall have power to sell the franchise or right way for such street railroads to the highest bidder, or, as

of

a consideration therefor, to impose a per capita tax on the passengers transported, or an annual tax on the gross earnings of such railroad or on each car; and no street railroad shall hereafter be incorporated or built in the city of St. Louis, except according to the above and other conditions of this charter, and in such manner and to such extent as may be provided by ordinance."

In November, 1887, after some unsuccessful negotiations, the defendant company gave notice to the St. Louis Railroad Company, the Union Railway Company, and the Union Depot Railroad Company that on the 12th day of December, 1887, it would apply to the mayor of the city of St. Louis for the appointment of commissioners to determine the amount and mode of compensation by it to be made for the use of their respective tracks, in pursuance of the ordinance above set out; and thereupon the mayor issued a written order, and caused the same to be served on said three railroad companies, requesting them to appear before him within 10 days to take steps prescribed in said ordinance No. 12,652. Thereupon the three companies aforesaid filed their suits, respectively, against the defendant company and the mayor of the city of St. Louis, praying for an injunction against the threatened appropriation of their tracks. This suit is one of the three thus filed.

The St. Louis Railroad Company was incorporated in 1859, for a period of 50 years, and since that time has been maintaining its railway on Fifth street, (now Broadway.) The plaintiff, after the necessary allegations concerning its incorporation, its ownership of and the right to operate its railroad on certain streets in the city of St. Louis, as well as the right to the continued use thereof for many years to come, alleges that the defendant mayor threatens and is about to appoint three commissioners, one of them having been selected by the defendant company, to assess and award compensation and damages to the plaintiff for the appropriation and use of and damages to the plaintiff's railroad property and franchise, to be paid by the defendant company; and that, upon such award being made by the mayor, the defendant company threatens to and will appropriate and use a portion of the plaintiff's railroad track in the streets of said. city as set forth in the petition; and plaintiff in its said petition states that all said contemplated and threatened acts of the defendant are without any warrant of law, and in violation of the constitution and laws of the state, and are and will be a trespass upon and a continuous and irreparable damage to the plaintiff and its property and franchise, and will materially affect the use of said property of the plaintiff for