72 Mo. 67 | Mo. | 1880
When the case of the St. Louis Railroad
We will preface what we have to say upon this point by observing, first, that in our opinion the plaintiff' in this case has a right to invoke the provisions of the act of 1860 if they are still in force as against the defendant; and, second, that the provisions of said act prohibiting the construction of parallel roads within three blocks of each other, were primarily intended as police regulations, incidentally affording a qualified exemption from competition to the roads coming within the scope of the act, but subject to repeal or modification, whenever, in the opinion of the legislature, the public necessities should demand it.
It is contended by the defendant that- the act of 1860 was repealed by the act of February 15th, 1864, and that it is also in conflict with the charter of the city of St. Louis passed March 19th, 1866, the charter passed March 13th, 1867, the charter passed March 4th, 1870, and the present charter of said city.
The section of the act of February 15th, 1864, relied
The act of 1864 confers power upon the city council to grant the right to construct street railways by ordinances in conflict with the act of 1860, whereas the charter of 1866 restricts the council to the passage of such ordinances only as are in harmony with the act of 1866, and repeals all laws previously passed in conflict with such charter. It it hardly necessary to make an argument to prove that a legislative grant to the city council of power to pass ordinances which shall have the effect of repealing an act of the legislature, is irreconcilably inconsistent with a legislative declaration that no ordinance shall be passed which shall conflict with any act of the legislature. Nor is the power conferred upon the city council by the charter of 1866, totally irreconcilable with the restriction imposed, as in the case of the State v. Clarke, 54 Mo. 17. The unrestricted power of the city council over the subject of street railroads which, it is claimed, was conferred by the act of 1864, having thus been extinguished, has never since been revived.
The city charter of 1867 contains the same requirement, that the ordinances passed in regard to street railroads shall not be inconsistent with any law of the State. Acts 1867, p. 62, art. 4, § 1. A similar provision is also to be found in the charter of 1870, (Acts 1870, p. 463, art. 3, § 1, and art. 12, § 8,) and in the amendment of 1874, (Acts 1874, p. 363, § 1).
The charter now in force in the city of St. Louis, under which the ordinance authorizing the defendant to build its road was passed, was framed and adopted in pursuance of the provisions of section 20, article 9 of the constitution of 1875, and vests the legislative power of the city in two houses, styled the municipal assembly of St. Louis. This
It is unnecessary to consider in detail the various acts of the legislature authorizing the construction of certain street railroads in the city of St. Louis, within the prohibited distance prescribed by the act of 1860. The only effect of these acts, according to the well established rules for the construction of statutes, was to dispense with the restrictions contained in the 3rd section of the act of 1860, so far as the companies named in these act were concerned. As to all other companies, its provisions remain in full force.
Our opinion is, that the act of January 16th, 1860,has never been repealed, that the municipal assembly of St.