206 Mo. 74 | Mo. | 1907
This is a proceeding by mandamus to compel the opening of the Boonville railroad bridge for general road travel. The alternative writ recited that the Boonville Railroad Bridge Company was incorporated under the laws of the State of Missouri, in December, 1870, for the purpose of constructing and operating a public toll bridge across the Missouri river at Boonville, Missouri, and was to be used for both railroad and ordinary road travel, and that by virtue of its incorporation, it was vested with power and authority to exercise the right of eminent domain necessary to acquire proper terminals and approaches, and to construct and operate a bridge for the purposes aforesaid for a period of one hundred years; that immediately after its incorporation it did, during the years 1870, 1871 and 1872, by virtue of said authority, erect a large steel and iron bridge over the Missouri river at Boonville, and also constructed proper and sufficient approaches and driveways, leading to and from said bridge at either end; that said bridge was floored with' thick oak lumber for the accommodation of ordinary road travel, and that in or near the middle of said bridge were laid iron and steel.rails for the crossing of railroad trains; and that said bridge was so constructed and was of sufficient strength and width to be well adapted to the crossing over of both railroad trains, vehicles, foot passengers, and other ordinary road travel, and the said bridge was during said years used by the public generally, who desired to cross the same on foot, or horseback, in wagons, and in other vehicles.
The command of the writ to the respondent is that “You do forthwith reconstruct proper approaches and .roadways at either end of said Boonville Railroad Bridge; that you refloor the same, and that you proceed to so equip and furnish said bridge as to provide for the reasonable accommodation of ordinary road travel as well as for railroad trains, and that said bridge be thrown open to the public for ordinary travel, and at reasonable rates of toll,” and that they show cause why they have not done so.
The respondents filed separate returns, which were the same in effect, the necessary changes being made to adapt the return to the different conditions relating to
It was admitted that the bridge company was organized as a business corporation under the laws of Missouri, December 19, 1870, and that by its articles of association it was to have the right to operate a public toll bridge for the crossing of persons and property by ordinary road travel if they should desire to do so, and should obtain proper authority therefor. It was denied that any authority was derived from the State of Missouri to construct and operate a bridge for any purpose whatever across the Missouri river. It was admitted that about the years 1871, 1872 and 1873, the bridge company did procure a bridge to be constructed across the river at Boonville, and caused a track to be laid thereon for the passage of railroad trains, but denied that it ever constructed any approaches or driveways at either end of the bridge, or that the bridge was fitted for ordinary road travel, or that the bridge was ever used at any time by the public for general road travel, either on foot, on horseback, in wagons or other vehicles.
It is also alleged that the Missouri river is a navigable stream, over which the Congress of the United States has assumed jurisdiction and control, and alone has the right and authority to regulate and control the use of the same, and especially to control and regulate the erection of bridges across said river, and that the State of Missouri has no authoritv, and could not and did not attempt to confer any right or authority to construct the bridge across the river at Boonville; that the bridare was constructed under the authority of an act of Congress, approved Mav 11, 1872, entitled “An act to authorize the construction of a bridge across the Missouri river at Boonville, Missouri,” and that the right, privilege and franchise for the construction of said bridge depends entirely upon
It was admitted that about May 1, 1873, the bridge company leased the bridge, together with the property connected therewith, to the respondent railway company; that the bridge company has ever since maintained its separate corporate existence, and it is denied that the railway company covenanted to operate the bridge as a public toll bridge for ordinary road travel.
It was further admitted that since the date of the lease, the railway company, a corporation organized under the laws of Kansas, has been engaged in operating a line of railroad extending through the State of Missouri and through the counties of Cooper and Howard. It is further averred that the railway company’s roads extend from Hannibal and St. Louis, uniting at Franklin Junction, and thence from Boonville and Kansas City, uniting at Parsons, Kansas, and thence through the State of Kansas and the Indian Territory to near Denison, Texas, where it connects with .another system of roads extending to the Gulf of Mexico, and reaching all important points in the State of Texas; that the respondent railway company is engaged in the transportation of persons and property and mail and express matter over its railroads, and the opening of the bridge to public road travel would greatly interfere with said business, and delay the movement of trains and impair the efficiency of the service of the railway.
' It is also averred that it is not feasible to adapt said bridge to the combined use of railroad and ordinary road travel. The approach to- the bridge on the north side is on a high fill, extending across low lands for a great distance, and which lands are subject to annual overflow, and that by reason of the character of the soil; the embankment upon which the tracks approaching said bridge is laid is liable to be washed away by the Missouri river, and to protect the same, it has been and is necessary, at great expense, to construct stone dikes at various points and in various directions, and to make excavations along the sides of the embankment, and that to locate and maintain a public wagon road in the neighborhood thereof would greatly interfere with maintaining the railroad track and embankment in a secure and safe condition. It is further averred that there is no public road opened or established in Howard county with which.the bridge could be connected within a reasonable distance, and that .neither the bridge company nor the railway company has any power or right to proceed to the opening or location of public roads.
It is further averred that the approach to the bridge in the city of Boonville on the south-side of the river is through a deep cut; that the bridge company
It is denied that there is no other means of crossing the river between Jefferson City, forty miles below Boonville, and Glasgow, twenty miles above, but on the contrary, it is averred that for many years prior to 1870, there had been, and ever since has been, and •still is a steam 'ferry operated across the Missouri river at Boonville; that said ferry is operated by virtue of a special franchise granted by the State of Missouri, which confers upon the owners of said franchise the ■exclusive privilege of crossing people on foot, on horseback, in wagons, or in other vehicles, and stock of all kinds; and it is further averred that when the bridge company was incorporated, it was notified by the owner •of the ferry that if it attempted to use the bridge for general road travel legal proceedings would be instituted to prevent the same, and no effort was ever made by the bridge company or by the railway company to operate the bridge for such purposes, and therebv conflict with the rights of the ferry. And it is further specifically denied that the bridge was ever constructed or fitted for such general road travel, or that ap
It was denied that there are many thousands of persons, or any other number outside of the merchants of Boonville as aforesaid, who desire to travel over or use said bridge for ordinary road travel, or to drive and move their cattle, horses, hogs and other property across the same, or would use said bridge if not excluded therefrom; and it is specifically denied that anyone is wrongfully or unlawfully excluded from the use of the bridge, or that it is the duty of the bridge company or the railway company to use, maintain or operate said bridge as a toll bridge for ordinary road travel; and it denies that the railway company ever covenanted or agreed to use or operate the same, or that either the bridge company or the railway company has disregarded any duty or violated any law, or that any portion of the public had any right to use the bridge for ordinary road travel, or that about the year 1880, or any other time, either or both of said companies wrongfully removed the flooring or blockaded the approaches of said bridge, or closed the same to public travel, or wrongfully or unlawfully turned away many thousands or any other number of persons who desired’ to cross the bridge on foot, on horseback, in wagons or in other vehicles; and denies that at any time any number of persons have applied to cross said bridge, or paid or tendered any toll whatever therefor.
It is admitted that since the year 1880', the railway company has used the bridge, as it always did from the date of its lease in 1873, for the exclusive purpose of crossing its trains, cars and engines, which use it is averred is the only lawful use to which the bridge could
It is also averred that in addition to the interference with the business of the railway company, the use of said bridge for ordinary road travel would greatly endanger the lives of the persons and the safety of the property attempting to pass over the same, and would thus inaugurate a use of the bridge which experience at other places has taught is highly dangerous, and which has been abandoned wherever it was possible to do so.
It is further averred that ever since the completion of the bridge, the State of Missouri and the people thereof have acquiesced in the use of the samé as ah exclusive railroad bridge', and that never, prior to the institution of this proceeding, has the State claimed or demanded that the bridge should be used for general road travel, but on the contrary, the State has regularly, from year to year, assessed the bridge and levied and collected taxes thereon, by virtue of the law governing and applicable to railroads and railroad bridges, and has otherwise generally dealt with said bridge and the bridge company and the railway company in respect to said bridge, on the theory that under the conditions it was, exclusively a railroad bridge, and not a bridge for ordinary road travel; that, relying upon the •construction so placed upon the duties and powers of the bridge company and the railway company as its lessee, as being the correct and true interpretation of the powers, franchises and duties of said companies, by the State of Missouri and its duly constituted authorities, the railway company, at a great outlay of money, under an arrangement with the bridge company, entirely reconstructed the bridge, removing all portions of the same except the piers and abutments, and substituting in lieu thereof a new structure of different plan and material, and far superior in strength and durability to the original bridge, and which new bridge is
It is further averred that the process of reconstruction continued during many months (during the years 1894, 1895 and 1896), and during all that time, the reconstruction for exclusive railroad purposes was conducted in the presence of the citizens of Boonville and with the knowledge of the public generally, and especi
Wherefore, the respondents say that to make the alternative writ peremptory, and to do the things contemplated thereby, would impose unreasonable burdens upon the bridge company and the railway company-without any corresponding advantage to the public, and would be requiring something on behalf of the public which a very small portion of the public desires to have done, and would be commanding the railway company to carry on a business not contemplated by its charter, and entirely beyond any powers conferred upon it by the law of this State or by the law of Kansas, under which it was organized and exists, and would require the bridge company to engage in a business which it has never yet engaged in, and which would entail loss upon the company operating it, and would require the bridge to be operated in a manner dangerous to the lives of persons and to the property of people crossing the same, and would unreasonably interfere with aud delay traffic on the railroad, and would remrre both said companies to operate a bridge across a navigable stream under the jurisdiction of the United States without any lawful authority therefor, and would compel the respondents to violate the rights of the owners of the ferry across the Missouri' river and involve the respondents in litigation with the owners of said ferry. It is further objected that the alleara^ tions of the alternative writ are vague and indefinite as to the location of the approaches, which it-is claimed
To these returns, the relator filed separate replications, by which it was admitted that the Missouri river, in 1870, was and ever since had been, and now is, a navigable stream; that during the years 1894,1895 and 1896, the respondents reconstructed the Boonville bridge, and as reconstructed, it is superior in strength, durability and safety to the original bridge.
It is denied that there is any jealousy on the part of the merchants of Boonville towards those of New Franklin, or that this proceeding was instigated by said Boonville merchants.
It is then alleged that the respondents wrongfully closed the bridge and refused to permit the use of the same for ordinary road travel, in order to give the railway company a monopoly of the passenger and freight traffic, and of all other railroad business, from the county of Howard and the other counties lying north of the Missouri river tributary to said bridge, and that by reason thereof, the people of the north side of the Missouri river have been compelled to pay the railway company exorbitant charges for having their produce shipped over the respondent’s railroad, and that the greater portion of the losses suffered by reason of said wrongful monopoly from closing said bridge to ordinary road travel is borne by the citizens of Howard county. The reply again reiterates the allegations of the writ concerning the lease of the
It is also alleged that the bridge company having applied to and obtained from the State of Missouri a charter to construct a public toll bridge as alleged ,m the alternative writ, and having constructed and maintained and operated said bridge under and by virtue of the powers conferred upon it by the said charter for a long period of time, and the railway company having entered into a lease with the bridge company as alleged in the writ, and having taken possession of the bridge and used and operated the same under said lease, and having charged and exacted toll from the public for a period of thirty years, as alleged in the returns of the respondents, “that both said respondents should not now be heard to say that the State of Missouri did not have the power to grant the privilege and franchise so exercised as aforesaid, or that full power and authority was not derived under said- charter to construct, use, maintain and operate said bridge for both ordinary road travel and railroad traffic, nor should the respondent railway company, by reason of the premises aforesaid, be heard to say that its right to so use, maintain and operate said bridge for both said purposes, is any
The relator further says that he has not sufficient knowledge to form a belief as to whether a new lease was entered into between the respondents, or bonds issued and sold as alleged in the returns, but he avers that if such new lease was entered into and bonds issued and sold, it was long after the reconstruction of said bridge had been completed, and after respondents had learned that a proceeding would be instituted by the State to compel the opening of said bridge to ordinary road travel, and if any such lease was made or any bonds were sold, it was with full knowledge of the parties to the lease and the purchasers of the bonds that proceedings were about to be instituted by the State to' compel the opening of said bridge to ordinary road travel.
All other allegations made in the returns not admitted were denied, and it was further charged that the returns were redundant, irrelevant and insufficient to constitute any defense, and the “relator again prays that said respondents and each of them be commanded to reconstruct proper approaches to said bridge; that they refloor and so provide and equip the same that it may accommodate ordinary road travel as well as railroad traffic, and that said bridge be opened to ordinary road travel and at reasonable rates of toll.”
Upon the issues thus presented by the returns of the respondents and the replies of the relator, this court appointed the Honorable James E. Hazell commissioner to take the testimony and make report. In pursuance of such appointment the commissioner heard testimony at various times and places, which testimony taken, together with the exhibits and the report of the commissioner, was duly filed in this court. The testimony taken is very voluminous and we shall not undertake to give it in detail. We have read and considered
The respondent, the Boonville Railroad Bridge Company, was incorporated, under article 7, chapter 37, Wagner’s Statutes of Missouri, of 1870, relating to manufacturing and business purposes (being the same as art. 9, chap. 12, R. S. 1899), by articles of association executed and filed in the office of the Secretary of State on December 19, 1870. The preamble to the articles of association recited: “for the purpose of organizing a company to construct, maintain and operate a toll bridge across the Missouri river from a point in or near the city of Boonville, in the county and State aforesaid, to a point in or near the town of Franklin, in the county of Howard, in the same State, for public use and crossing persons and property by both railroad and ordinary road travel in accordance with the laws of the State of Missouri (see chap. 37, art. 7 of the statute laws of said State) do enter into the following articles of association.” The fourth clause of the articles reads as follows:
“The said bridge is to be a public toll one for crossing persons and property and is to be used for both railroad and ordinary road travel at reasonable rates.”
Subsequently as authority and permission to construct and maintain a bridge over the Missouri river between the city of Boonville, in Cooper.county, and Franklin, in Howard county, Missouri, an Act of Congress was passed and approved May 11, 1872 (U. S. Stat. at Large, vol. 17, p. 99), whereby it was enacted: “That the Boonville Railroad Bridare Comnany, a corporation existing under the laws of the State of
Section 4 of the act provides: “That all railway companies desiring to use the said bridge shall have and be entitled to equal rights and privileges in the passage of the same and the use of the machinery and fixtures thereof, and of the approaches thereto, under and upon such terms and conditions as shall be prescribed by the Secretary of War, upon hearing the allegations and proofs of the parties in case they shall not agree.”
At the time of the organization of the bridge company and the enactment of the above-mentioned law of Congress, the Missouri, Kansas & Texas Railroad, or the Tebo & Neosho Railroad, as it was originally called, was in course of construction upon both the north and south sides of the Missouri river. The railway company had procured the right of way by conveyance of the owner of the land in Howard county, Missouri, by deed from J. Broaddus Smith and wife, extending from the north to the bank of the river or the slough hereafter mentioned, at a point about where the station of Kingsbury is now located. On the south side of the river in the city of Boonville, the railway company had also acquired by condemnation a right of way one hundred feet wide, extending from the south bank of the Missouri river, in a southerly direction, beyond Water street and thence through the limits of the city of Boonville. Prior to the year 1870, the Missouri river had cut away a considerable tract of land in Howard county opposite Boonville where the town
Under the above conditions and with the right of way and franchises acquired by the bridge company and the use of a portion of the fight of way of the railway company in the city of Boonville^ or on the south -side of the river, the bridge company caused the construction of the bridge to be commenced by the American Bridge Company, to which the contract had been let. The character of construction originally adopted . would admit of the joint use of the bridge for railroad purposes and road travel, and a ' floor was laid in the bridge and railings were constructed along the sides, and the same were SO' far completed that the bridge might have been used for road travel if the necessary approaches had been built. A small house was built on the railroad right of way near the south end of the bridge, which is now used for the accommodation of the
On the first day of May, 1873, the bridge company leased the bridge to the Missouri, Kansas & Texas Railway Company, one of the respondents herein, for a term equal to the full term of the corporate existence
The construction company finished the bridge in 1875, but under the contract with the bridge company,, it was entitled to retain possession of the bridge until it was fully paid for, and for that reason, it retained control and possession of the bridge until the summer of 1876, when it turned the same over to the railroad company as lessee. During the time the bridge was in the control of the American Bridge Company, and after it was turned over to the railroad company, all persons were prohibited from passing over the bridge. • Notwithstanding such prohibition, however, a number of people did: pass under different circumstances. Sometimes they would elude the guards in charge of the bridge, who had instructions not to- allow anyone to pass, but notwithstanding such instructions, it was intimated by some of the witnesses that they crossed the bridge at times when the guards apparently made no effort to prevent them. Various devices and vari
The bonds mentioned, issued and secured by the mortgage of 1901, were placed on the market and are being dealt in by the public as other similar securities
Two witnesses for the relator, Mr. Ravennel, a civil engineer, and Mr. Hiram Phillips, president of the Board of Public Improvements of the city of St. Louis, who had been employed for a time in the civil engineer’s office of one1 of the larger bridge building companies of the country, testified that in order to equip the present bridge for general road travel, it would require the addition of steel stringers running lengthwise of the bridge on which to rest joists to support the floor, and on top of which would have to be laid the floor, extend-' ing over the entire width of the bridge, and side railing’s would have'to be constructed along each side of the bridge as a precaution against people or animals ■ falling off. This alteration was estimated by Mr. Phillips, roughly, to cost about twenty-five thousand dollars. These engineers also testified that bridges were built with a certain factor of safety; that is, that it was estimated that the greatest load they would have to carry in the use for which they were designed would be a given weight, and that in order to be entirely safe to sustain that weight under all circumstances, the structure would have the capacity of carrying several times such weight, usually about five times the actual weight of the largest load to which it would be subjected. Five was therefore assumed to be the factor of safety in this •case. The weight of the bridge itself enters into this
The relator’ introduced evidence concerning the service furnished by the ferryboat. This was objected to by respondents. Some of the witnesses testified that the service was unsatisfactory; that the ferryboat commenced to make trips at six or seven o’clock in the morning and stopped at six o’clock at night, and that after that time the only way to get over was in a skiff ; that there were days when the ferryboat did not run at all, sometimes because of high winds, sometimes because the river was frozen over, and on other occasions the boat would get aground, and be detained for hours at a time. The opinion was expressed by some of relator’s witnesses that the service was not as good as it had been in years past when Captain Porter was alive and operated the boat. Other witnesses were of the opinion that the service was practically the same in proportion to the amount of business; that the conditions of the weather and river at the different seasons were substantially the same now as they had always been and that they had interfered with the operation of the ferryboat in years past just as they do now. A number of witnesses, both for relator and respondent, testified that the service given was as good as could be expected
The evidence established that prior to the building of what is now the M. K. & T. railroad, about 1873, and for several years later, there was a large immigration into Missouri and States and Territories to the west and southwest, and that a large part of this travel came overland in wagons, and a very considerable portion of it crossed the Missouri river at Boonville, but that the country had filled up and this immigration ceased, and a great deal of the travel through the country was done on the railroads, and therefore the amount of crossing , of the river in vehicles of different kinds was very much less than it had been in former years.
There was a difference of opinion among the witnesses, they being about equally divided, concernng any advantages that would arise to the public if the bridge ■was opened for general road travel. Prom the testimony of all of the witnesses it is fairly deduced that the Missouri, Kansas & Eastern Railway was constructed about the year 1892, this road being now the line of the Missouri, Kansas & Texas Railway Company into the city of St. Louis. The junction of this line with the other line of the M. K. & T. railroad is at New Pranklin, across the river from'Boonville, and only a few miles distant therefrom. When this St. Louis line was built, and the junction established near the town of New Pranklin in Howard county, a roundhouse was located there, and it was made the terminus of several
One of the relator’s witnesses made an estimate of the cost of operating the bridge if changed to a wagon bridge, upon the theory that it would only require, all told, four men. The testimony of the men now engaged in operating the bridge was that it required all the time three and some times four men at present, and that these men were necessary independently of parties that would be required to collect tolls and look after that part of the bridge connected with wagon travel. The testimony was that in addition to the present force, it would require at least one man at each end of the bridge all the time, which, at the least, would be two at each end. An estimate was made of the expense of maintaining the extra force and the interest on the cost of making the changes in the bridge, and the wear and tear of necessary repairs, but it was admitted that this was an estimate made without accurate information,
It was agreed by the witnesses that no attempt had ever been made and no proceedings of any kind instituted to secure more efficient service by the steam ferry. The respondents introduced in evidence a letter from Miss Brent, heir to Captain Porter, and the present owner of the ferryboat, addressed to Mr. Allen, Vice-President and G-eneral Manager of the M., K. & T. Ry. Co., notifying him that she claimed the exclusive right to transfer passengers and teams, etc., across the Missouri river at Boonville, and that if the railroad bridge is opened for such traffic, she would institute legal proceedings to prevent the same and to protect her rights.
Concerning the physical conditions, the location of roads, etc., at either end of the bridge, the evidence established that "Water street was the nearest practical route for passing to and from the bridge on the Boon-ville side; that this street was located more than two hundred feet south of the south end of the bridge, which was fifty or more feet south of the south bank of the river, and that the travel to and from the bridge would have to pass over the railroad right of way and along the tracts of the railroad to Water street; that the railroad track between the end of the bridge and the depot
The bridge is nearly eighteen hundred feet long, and the dike across the island and slough from the end of the bridge to the main bank near Kingsbury is nearly half a mile long, the right of way on which this dike is constructed being the strip two hundred feet wide acquired from Captain Porter under the deed previously mentioned. The ferryboat lands at various points along the river from the bridge down to a place called Michel’s store about a quarter of a mile below the bridge,— these landings varying according to the stage of the water. Witnesses for relator testified about two roads that had been used for many years by people in passing to and from the ferryboat, the claim of relator’s attorneys being that these are public roads. One of them extends along the river side of the island from Michel’s store up to the bridge, and passing under the bridge, goes up the island to a small farm belonging to the heirs of Captain Porter, and occupied and cultivated by their tenants. The land along the side of the island where this road extends from Michel’s store to the bridge is higher than it is towards the main shore near Kings-bury, it gradually receding from the river side of the slough. The evidence shows that this road was used by permission of Captain Porter and his heirs as owners of the island, as an outlet for the tenants on the upper end of the island' and for the purpose of hauling wood from above the bridge, and also to enable the patrons of the ferryboat to reach the different points where it landed from time to time. The other road spoken of by the relator’s witnesses was one along the
The inclined road that was constructed on the lower or east side of the dike or embankment and which had been staked out by Captain Ravennel when he was employed as civil engineer for the bridge company, did not connect with either of the roads previously mentioned. This inclined driveway started on the east or down-stream side of the embankment a short distance from the north end of the bridge. There is some conflict in the testimony as to the grade of this approach. One of the witnesses, a civil engineer, in answer to the question as to whether it afforded an easy access to the bridge, stated: “I couldn’t say easy access for a loaded wagon or anything of that kind; it makes a very good grade though — decent grade. ” As it went north
In regard to the feasibility of using the bridge jointly for railroad and ordinary wagon travel, and concerning the inconvenience and disadvantage that such use would be to the railroad company, the relator proved that it required about seven minutes for a train
It was also shown that the bridge was not of sufficient width to permit of the passing of railroad trains and vehicles of any kind at the same time, and therefore if a train was crossing, no animals or vehicles, could cross until the train had cleared the bridge, and vice versa, if any animals or vehicles were on the bridge, a train could not cross the same until such animals or vehicles had gotten entirely over, and that waiting for the clearing of the bridge in this way would cause great delay to the movement of trains, some -of which carried freight, some express matter, some passengers, and some United States mail for all points along the lines of the M., K. & T. railroad and its connections, which extended to all parts of the country, but which were especially relied upon by the people living in the central part of Missouri for communication with St. Louis, Chicago, Kansas City, and other points north, east and west of this bridge, and also for all points in southwest • Missouri, and through a large part of Kansas, the principal portion of the Indian Territory, and every point
These witnesses also testified that one train getting off its schedule on the road was liable to disarm range many and probably all of the trains, and was-such a confusing element in the operation of a railroad-that it was impossible to keep the trains on time.
The railroad company, in reconstructing the-bridge?
Upon the evidence taken at the hearings in this cause upon the issues presented, the commissioner, after due consideration of the testimony before him, made his finding, which was, upon every material issue, in favor of the relator and against the respondents.. We deem it unnecessary to reproduce the report in full of the finding of the commissioner. In due time the respondents filed exceptions tp the finding of the commissioner as set forth in his report. We also are of the opinion that it is not essential to the disposition of this case to reproduce the exceptions filed to this report. This constitutes the record in this cause which is now before us for consideration. It now remains for this "court to make its announcement upon this record, either making the alternative writ of mandamus peremptory or denying such writ.
OPINION.
As indicated by the record before us this is a proceeding by the State at the relation of the Attorney-G-eneral in which the extraordinary writ of mandamus is sought to compel the opening of the Boonville Railroad Bridge for general road travel. The record before us is quite voluminous. Numerous witnesses were examined on the part of the relator as well as the respondents, and it is well enough to state at the very inception of the consideration of the questions disclosed by the record and so ably presented by counsel, both for the relator and the respondents, that we shall not undertake to reconcile the conflict in the testimony, nor shall we undertake to discuss in any way the
This extraordinary writ which is sought in this proceeding has been very properly described as' “the right arm of the law. ” It is therefore essential at the very inception of the discussion of the propositions presented for our consideration to determine the office of this writ and the purpose it was intended to accomplish. “Its principal office is not to inquire and investigate, but to command and execute. It was designed only to meet emergencies and prevent a failure of justice, and the courts have given expression to the view that this writ should be reserved for extraordinary occasions and require litigants to use all available means to obtain the enforcement of their rights before they apply to the court for the assistance of this writ. ’ ’ [Merrill on Mandamus, sees. 64, 67.]
The learned author just cited, in section 62, thus discusses the nature and character of this writ. He says: ‘£ This writ was originally, and still remains in England, a prerogative writ, and was issued at the discretion of the court. In America, at the present time, it is but seldom considered to be a prerogative writ.
Mr. High, in his standard work uponExtraordinary Legal Remedies (3 Ed.), section 9, in discussing this extraordinary writ, very dearly lays down the rule which should govern and control the court in the issuance of it. He says: ‘ ‘ The writ of mandamus being justly regarded as one of the highest writs known to our system of jurisprudence, it issues only where there is a clear and specific right to be enforced, or a duty which ought to be and can- be performed, and- where there is no other specific and adequate legal remedy. The right which it is sought to protect must therefore be clearly established, and the writ is never granted in doubtful cases. And the person seeking the relief must show a clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced. The writ, if granted, must also be effectual as a remedy, and it must be within the power of the respondent, as well as be his duty, to do the act in question. It follows also, from the important position which this writ occupies as a remedial process, as well as from its nature as an extraordinary remedy, that the exercise of the jurisdiction rests, to a con
The law applicable to the subject now under consideration is very clearly stated in Morawetz on Private Corporations, sec. 1134, where it is said: “There are many cases, however, where the performance of a public duty by a corporation cannot be compelled by writ of mandamus, though the duty itself be clear. The propriety of issuing the writ of mandamus depends in part upon the character of the acts to be enforced. A court should never attempt to compel the specific performance of an obligation. And hence the writ of mandamus should not, as a rule, be issued in order to enforce the performance of a duty involving the exercise of a large measure of good faith and discretion on the part of the obligor. It may be doubted, therefore, whether it be a rule applicable in all cases, that the courts will compel a railroad company to operate its line of road, even though the duty of the company be clear. The difficulty of supervising unwilling agents in the performance of a continuing duty of so complicated a nature as that of properly managing a railroad, involving the exercise of a large amount of discretion and technical skill, would in many cases prove a serious obstacle in the way of such an attempt. "Whether a writ of mandamus shall be issued, is in every case a matter resting largely in the discretion of the court, and depends upon all the surrounding facts and circumstances.”
The same learned author last cited, in further discussing this proposition (sec. 1136), says: “If a rail
In 19 Am. and Eng. Ency. Law (2 Ed.), 751, in the text, we find this rule applicable to the issuance of this writ. It is thus stated: “The writ of mandamus is not a writ of right, and the granting or denial of an application for mandamus rests very largely within the discretion of the court. This discretion is not a purely arbitrary one, however, and cannot be capriciously exercised. It is a sound legal discretion to be exercised in accordance with the established rules of law, and if under those rules the party is entitled to the writ, the court has no discretion to withhold it. Indeed, many cases go so far as to call the writ a writ of right or in the nature of a writ of right. Mandamus, being a discretionary writ, will not be granted where it would work injustice, or introduce confusion and disorder, or operate harshly, or where it would not promote substantial justice.”
Spelling* on Injunctions and Other Extraordinary Remedies (2 Ed.), vol. 2, sec. 1371, in treating of this subject is in entire harmony with the authorities herein cited. He says: “But even where a clear legal right
The same learned author last cited, in a further discussion of this question, lays down this additional rule as applicable to it. He says: “If the party have a specific remedy to which he can resort, to compel the performance of the duty, or to obtain redress for its non-performance, the writ should be denied. If he may obtain relief by appeal or writ of error, he will not be entitled to the writ; and since mandamus is the writ of highest dignity known to the courts, it is sufficient ground for refusing it, that the petitioner may have another remedy in the nature of quo warranto.” [Sec. 1374]
It is manifest from the authorities herein indicated that the rule as applicable to the issuance of the writ of mandamus is firmly established, that the granting or denial of an application for a mandamus rests largely within the sound legal discretion of the court, to be exercised in accordance with the established rules of law, and in exercising such discretion the court will consider all of the circumstances, reviewing the whole case, with due regard to the consequences of its action. This court in State ex rel. v. Railroad,
We have sufficiently indicated in the statement the leading features concerning, not only the history of the construction of this bridge across the Missouri river, but as well the facts applicable and pertaining to the use of it, and the actions and conduct of the public respecting the manner in which such bridge has been used for more than a quarter of a century, and in our opinion, fully considering all the circumstances and reviewing the whole case, with due regard for the consequences of our action, the peremptory writ of mandamus should be denied.
We deem it unnecessary to discuss the numerous legal propositions presented by counsel for relator and respondents. It is sufficient to say that we have carefully read in detail all of the testimony taken by the commissioner at the respective hearings, and in our opinion it fails to show that the failure to open this bridge to the traveling public would be such an injury to the public in general as would require this court, in the exercise of a sound legal discretion, to make this writ peremptory.
We have in this case sharply presented the proposition, even conceding that the charter acquired from the State of Missouri is to regulate and control the construction and operation of this bridge, that it was not obligatory upon the respondents to exercise and put in practical operation all the powers under the franchise secured from the State. It is contended, upon one side, that the charter was only permissive and not
Morawetz on Private Corporations fully discusses this subject, and he very clearly draws the distinction between corporations that have accepted and received the aid of the State for the purpose of constructing railroads or other public utilities and those corporations which merely accept the charter which purports to confer certain privileges and are permissive only. Thus in treating of the obligation to construct a railroad under a charter, in section 1126, the learned author thus concludes that section:. “But in order to hold a railroad company liable to the State to construct the railroad, it would be necessary to place this obligation on the ground of a contract entered into by the acceptance of the charter; and it would be difficult to imply such an agreement where a charter does not, in terms, impose an obligation, but purports to be permissive only.” The same learned author, after discussing the English cases upon the subject, says: “Reason as well as the weight of authority indicates that a railroad company does not become liable to the State to construct the railroad contemplated in its incorporation by the mere acceptance of a charter purporting to be permissive only, but if a corporation has accepted and enjoyed the benefit of a grant of state aid for the purpose of constructing a particular railroad, it would undoubtedly incur the obligation to construct the railroad according to the terms of the grant.” In section
It is not essential, as before stated, to determine this question, and there is no necessity for further pursuing this discussion. These authorities, together with all the circumstances showing the impracticability and the greatly increased danger of operating this bridge for ordinary road purposes, serve at least to indicate the good faith of the bridge company in the belief that they had the right to at least abandon those parts of the powers and privileges conferred by their charter, and Mr. High’s Extraordinary Legal Remedies expressly announces the rule that in order to authorize the issuance of a writ of mandamus, the right it is sought to protect must be clearly established, and the writ is never granted in doubtful eases. Upon some of
That it was the original purpose in the construction of this bridge to use it both for railroad and ordinary road travel, there is no dispute. It is equally clear that the testimony conclusively shows that it never was used as a public toll structure for ordinary road travel. In fact, it is perfectly apparent that not a great while after the construction of the bridge the idea of using it for ordinary road travel was completely abandoned, and the public were made fully aware of this abandonment. In 1880 the floor of this bridge was removed and in ’94, ’’95 and ’96 the entire bridge was reconstructed and designed exclusively for railroad purposes. While it is true, the testimony discloses that occasionally persons passed over this bridge, but they paid no toll, none was exacted, and there were posters at each end of the bridge excluding the ordinary road traveler. The testimony upon this branch of the case falls far short of establishing that this bridge was ever opened to the public as a toll bridge for 'general road travel. The reconstruction of this bridge extended over the greater part of the years ’94, ’95 and ’96. The work of reconstruction was evidently in the presence of the entire population of Boonville, and it was but common knowledge, which extended to the State officials as well as the general public, that this bridge was being used exclusively for railroad purposes. They came before the State Board of Equalization and this property was assessed as a strictly railroad bridge, and yet during all these years, from ?73 down to 1902, a period of over a quarter of a century, no action was taken by the State asserting the rights that are con
Now while it is true that the doctrine of estoppel or laches is not applicable to' the State and any right it may have is not waived by reason of its inaction or silence, yet we take it that the acquiescence on the part of the State for nearly thirty years in a certain method of operating this bridge should be taken into consideration by the court, in the exercise of that sound legal discretion which it is incumbent upon the court to exercise in the granting or denial of -the issuance of the extraordinary writ sought by this proceeding. It also appears in evidence that Captain Porter, who was operating the ferry at Boonville under a charter grant
The Court of Errors and Appeals of the State of New Jersey, in the case of Attorney-General v. Railroad, 27 N. J. Eq. 1, had in judgment before it, at the instance of the State, a similar principle involved to the one in the proceeding at bar. "While that case was not one in which the writ of mandamus was sought, it was a proceeding for injunction by the Attorney-General in the interest of the State to prevent the use of certain property and the franchise connected therewith in a certain manner. The relief prayed for in that proceeding was denied, and the court in discussing the lapse
A similar rule was announced in People v. Chapin, 104 N. Y. 96; however, in that case it is but fair to state that the writ of mandamus was sought for the benefit and protection of a private individual.
We have read in detail the testimony taken by the •commissioner upon the question as to the feasibility of using this bridge jointly for railroad and ordinary road travel, and concerning the inconvenience and disadvantage that such use would be to the railroad company. The testimony as disclosed by the record tends at- least to show that this bridge was about eighteen hundred feet long and that there were about twenty-four schedule trains crossing the bridge every day. It was also shown that while there were certain trains scheduled for each day, there were many special and extra trains over the road that could not have schedule time, and that freight trains would be run in several sections, that'is, while the train was scheduled under a ■certain number and to arrive at a certain time, yet, because there would be too many cars to go in one train, a number of trains would be made up and designated sections; that sometimes there would be two or three sections and frequently as many as six or seven sections of the same train, which would all carry the same train number with the additional number of the section.
We have also carefully analyzed the testimony respecting the approaches to this bridge, and in our opinion no one can read the testimony and carefully consider it. respecting the operation of this immense structure across the Missouri river without being convinced that such bridge could not be used jointly for railroad and ordinary wagon travel without being attended with extreme danger and hazard to the traveling public. This court, if for no other reason, would hes
The long delay in the institution by the State of this proceeding to compel the equipment of this .well-known- structure for ordinary road travel is a very strong circumstance pointing to the impracticability, as well as the absence of an earnest general public demand, in view of its peculiar location and the conditions surrounding it, of its joint use for railroad purposes and ordinary road travel.
After a most careful consideration of all the testimony taken by the commissioner and returned to this court we are not convinced that the failure to equip this bridge for the joint use of ordinary public travel and railroad purposes, is such an injury to the public in general as would justify this court, in the exercise of a sound legal discretion, in granting the extraordinary writ of mandamus which is sought by this proceeding. This is unlike the ease of a bridge company or a railroad corporation which had opened a bridge or operated a railroad for the convenience of the public, and after having operated the structure for toll or the use of the ordinary traveling public and the railroad corporation had operated its railroad in the transportation of passengers and freight,' then under those circumstances should systematically refuse to permit ordinary road travel over the bridge for reasonable toll rates, or the railroad should refuse to transport passengers or freight on reasonable terms. This sort of action and conduct on the part of such corporation could be truly and’ properly termed an injury to the public in general, and under such circumstances a writ of mandamus should be granted at the instance of the State to
We have indicated our views upon the question as to the exercise of a sound legal discretion in granting or denying the writ sought by this proceeding. The conclusions reached render it unnecessary to discuss