City of St. Louis v. St. Louis Railroad

| Mo. | Mar 15, 1872

Adams, Judge,

delivered the opinion of the court.

The defendant operates its road on Fifth street, in the city of St. Louis, on two parallel tracks separated from each other by a space of three and a half feet, and in this space the city caused repairs to be made, and now seeks to hold the .defendant liable for the cost of these repairs. The agreed case shows that the repairs in question were made subsequent to the act of the general assembly of the 3d of March, 1869, relied on by the defendant as exempting it from responsibility for such repairs. The third section of this act provides that “in addition to the annual tax herein provided, each of said railway companies shall pay a license to the city of St. Louis, to be fixed by ordinance of said. city, not exceeding twenty-five dollars per annum for each car' run by said companies respectively, and the taxes and license payable under the provisions of this act shall be in lieu of all taxes, burdens and expenditures and repairs of streets outside of their track, required’of such companies by former laws and ordinances.”

The sixth section of this act requires each company to file with the Secretary of State a written acceptance of its-provisions before it becomes operative as to such' company.. The agreed case does not affirmatively show that this company had filed the required written acceptance. But as the act is set up as a defense by the company, and nothing to the contrary is shown in the agreed *95case, we will, for the purposes of this suit, presume that the written acceptance referred to was filed with the Secretary of State. It is conceded that the defendant would he liable for the alleged repairs unless exempted by the provisions of the third section above quoted.

It seems to me that the language of the exemption clause is too plain to admit of a reasonable doubt as to its proper construction. Where a street railroad operates but one track, it is not pretended that it would be liable for repairs outside of such single track. The simple question is whether the space between the two parallel tracks is outside of each of the tracks. It is very clear to my mind that such space is not inside of either track, but is between the two tracks, and outside of each. Under this view the defendant was not liable for the alleged repairs.

Let the judgment be affirmed.

The other judges concur.