Henry, J.
— The principal questions for consideration are.
1st. Had the Pacific Railroad Company the right to lay its track along Poplar street at the time it was placed there by the company ?
•2d. If so, was that right acquired from the State, or from the city of St. Louis?
3d. Did the Atlantic & Pacific Railroad Company, under the lease from the Pacific Railroad Company, acquire the property and franchises of the latter; and if the Pacific company had the right to lay, maintain and operate said track, was that right acquired by the Atlantic & Pacific company under said lease ?
This last question will be considered first, as it involves the capacity of the Pacific company to convey, and of the Atlantic & Pacific to acquire and hold under such conveyance, the property and franchises of the Pacific company. The Pacific Railroad. Company was incorporated by an act of the General Assembly of this State, approved March 29th, 1849, and by the 7th section of the act was empowered to construct a railroad from the city of St. Louis to Jefferson City, and thence to some point on the western line of Van Burén county in this State, and by the 11th [245]*245section was authorized to build said road along or across the streets of any city. By the 7th section it was authorized to extend branch railroads to any point in any of the counties in which said road might be located.
By an amendatory act, approved March 1st, 1851, the 7th section of the original act was so amended as to authorize said company to construct a railroad from the Mississippi river, or any other point in the city of St. Louis, on any route the company should deem most advantageous, to any point on the western line of the State, with power to construct lateral or branch railroads to any point or points in this State not exceeding fifty miles from its main line.
By an act of the General Assembly, approved December 25th, 1852, the said company was authorized to construct a line of railroad from any point on its main line east of the Osage river, to any point on the western boundary line of the State south of the Osage river. Under this act the company located a road from Eranklin to the western line of the State near Neosho. By the act of 1866> this road was foi’feited to the State, and sold to John 0. Eremont, and the name of the road changed to “ the Southwest Pacific Railroad Company.”
By the act, approved March 17th, 1868, (Sess. Acts 1868, p. 118,) the road and its franchises were again declared forfeited to the State, and by the State sold to the South Pacific Railroad Company, or rather, to individuals therein named, who were authorized to organize that company.
i corporate ex-eyTeCÍjisi^ÍtiveD recognitiok.
There is no direct evidence that such a company was ever organized, but by an act of our Legislature, approved March 10th, 1869, the existence of that company was recognized, by directing the Governor, on application "of the South Pacific Company to cause any number of said South Pacific railroad construction bonds, not exceeding one million of dollars, to be certified and delivered to some respon. [246]*246sible bank or banks in New York or Boston, to the credit of the State Treasurer, which said company was authorized to negotiate or hypothecate in payment for iron for the construction of the road ; also, by an act of May 24th, 1870, which required the State Treasurer to pay to the South Pacific company all money received by him on account of the sales of any of the lands by said Premont, &e., and providing that the receipt of the president of said company should be a sufficient voucher for the same; also, by an act,' approved March 24th, 1871, by provision made for its consolidation with the Alantic & Pacific Railroad Company. The State having sold the Southwest Pacific railroad to individuals authorized to organize the South Pacific company, and afterwards, repeatedly by acts of the General Assembly recognized the existence of the corporation, it cannot now be questioned by third persons — even if the State could do so.
By an act of the General Assemby, approved March 24, 1870, it was provided: “That any railroad company organized in pursuance of the laws of this, or any other State, or of the United States, may lease or purchase all or any part of a railroad, with all its privileges, rights and franchises, real estate and other property, the. whole or a part of which is in this State, if the lines of the road or roads of said companies are continuous or connected at a point either within or without this State.”
By section 8 of the act of Congress incorporating the Atlantic & Pacific Railroad Company, it was provided: “ That if such route (of the Atlantic & Pacific road) shall be found upon the line of any other railroad route, to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act, provided that the railroad company receiving the previous grant of land, may assign their interest to said Atlantic & Pacific Railroad Company, or may consolidate, confederate [247]*247and associate with said company upon the terms named in the first and seventeenth sections of this act.”
That the routes of the South Pacific and of the Atlantic & Pacific were upon the same general line, will not be denied, and as the government had granted lands to aid in the construction of the South Pacific, it was of the class of roads which, by the third section of the act of Congress, the Atlantic & Pacific was authorized to purchase, and by the act of 24th of March, 1870, supra, the South Pacific was empowered to sell, and the Atlantic & Pacific to purchase and hold all the rights, franchises and property of the South Pacific company, because the two roads connected at Springfield, Mo.
2 Corporation DEED-
By its deed, dated 21st day of October, 1870, the South Pacific company conveyed to the Atlantic and Pacific, its railroad, completed and uncompleted, and all of its privileges, rights, franchises and property of every description. As the one company had the right to sell, and the other to purchase, it follows that the deed, under the seal of the corporation and signed by the proper officers of the company, is prima facie evidence that the officers did not exceed their authority, and if the assent of the stockholders to such -conveyance was not had, it devolved upon the defendants to show that fact.
Having by purchase acquired all the rights, franchises and property of the South Pacific company, the Atlantic & Pacific acquired a right to lease or purchase the Pacific railroad under the act of March 24th, 1870. This was a right which the South Pacific had, and all its rights and franchises were conveyed to the Atlantic & Pacific. The Atlantic & Pacific and the South Pacific road became one continuous road, and connected át Franklin with the Pacific.
3. railroad conuteTooiísSuéas.tat
Respondents contend that the deed was inoperative, because the companies failed to file in the office of the Secretary of State' the certificates required by the second section of the act of March [248]*24815th, 1871, (Sess. Acts 1871, p. 66). That was an act passed to authorize the merger and consolidation of these two companies. It was optional with the Atlantic & Pacific whether it would consolidate with the South Pacific company or not. Nearly a year before the passage of that act, the Atlantic & Pacific company had, as we have seen, purchased the franchises and property of the South Pacific company, and the title and terms of the act of 1871, show that the consolidation provided for was optional with the companies, and therefore the rights acquired by the Atlantic & Pacific company under the deed, did not depend upon a consolidation with the South Pacific company.
By that purchase it was invested with the rights, franchises and property of the South Pacific and thus having a connection with the Pacific road at Franklin, it was empowered by the act of 1870, to take a lease of that road, with all its privileges, rights and franchises, and among these, was the right to maintain and use the track of the Pacific company along Poplar street, if the latter company had the right to lay, maintain and use that track. It is conceded that the lease from the Pacific company to the Atlantic & Pacific company was duly executed, and that if the Atlantic & Pacific company had capacity under the law to take a lease of the Pacific road, that lease was effectual to pass all the property and franchises of the Pacific company which it could convey.
ímiÍ™? VIDUALS AM) THE fill'exercise™ omsEsEATE PEAN"
Had the Pacific Railroad Company the right to lay its track along Poplar street, St. Louis, in 1870 ? Respondents contend that the Poplar street track was but A aD- extension of the main line, and that, having located its eastern terminus at Seventh street, and kept it there for years prior to 1870, the com7 pany had exhausted its power and could not afterwards extend its road under its charter, citing Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 364; 1 Am. Railway cases 150; Morris & Essex R. R. Co. v. Central R. R. Co., 31 N. J. 207, and 1 Redfield, Sec. 1105, page 410.
[249]*249The cases cited were controversies between railroad companies and individuals, and railroad ' companies. The State was not a party to the proceeding in either. In the first case the Jamaica company was authorized to construct •a railroad commencing at an eligible point in the village of Brooklyn, and extending to any point in the village of Jamaica. The company located its western terminus at the foot of Atlantic street, and its eastern in the village of Jamaica, where it had ever since remained. The court says: «Having made its location and adhered to it for many years, it is concluded by what it has done. It had no franchise in Furman street which it could assign to the Central company.”
The City Railroad Company was established, and commenced operating portions of its route long before the Central Railroad Company had an existence, and had laid down a railroad track in Furman street at its own expense. The Central company claimed that the Brooklyn & Jamaica company had the right by grant from the Legislature, to construct and operate a railroad through the streets of Brooklyn, which it had assigned to the Central company. It was not an attempt of the Brooklyn & Jamaica company to extend its line, or change.its location ; but to confer upon the Central company a right to build and construct a road along Furman street, on the ground that the charter of the Brooklyn & Jamaica company gave this company the right to lay its track in the streets of Brooklyn
The court held that the Brooklyn & Jamaica company had no franchise in Furman street which it could assign to another company; that is a very different question from that presented for our determination, and while some of the observations of the court may be pertinent to the question before us, they were not necessary to the determination of the question in that case, but conceding as law all that is said in that opinion, it does not materially affect the question here. There is no evidence in this record that the eastern terminus of the Pacific railroad has ever [250]*250been formally selected. It is true, that it was built to Seventh street in St. Louis, and remained there for years; but it is also true, that it had previously remained for a length of .time at Fourteenth street.
Supposing this track to be, as contended by respondent but an extension of the Pacific road, and that the time for the completion of that road, seventeen years from the date of the charter, had expired before this Poplar street track was laid, is it for the city of St. Louis, or any individual, to object to such extension, on that ground, if the State choose to permit .the extension? There was no private property to condemn for a right of way, that had been granted along the streets by the General Assembly. It may be conceded that after the expiration of the time limited by the charter for the completion of a railroad, the property of individuals cannot be condemned for a right of way. This doctrine is amply sustained by the authorities cited by respondents. In Peavy v. Calais R. R. Co., 30 Me. 499, the court said: “ By the act of February, 1838, two years further were allowed to the company to complete their road. After the expiration of that period, they could not take the lands of individuals without their consent,' for the extension of their road. They must act within the time given them by the Legislature.”
But suppose that consent to have been obtained before the expiration of the time, is that case an authority for saying that still the company could not have proceeded to extend its road through the land ? It does not go to that extreme, hut only decides, that unless the consent be obtained within the time limited for the completion of the road, a right of way could not be condemned afterwards. Individuals may resist the condemnation of their lauds for a right of way, after the expiration of the time given by the charter for the completion of the road, but cannot interfere to prevent the company from extending its road after the expiration of that time, over a right of way already acquired. The general principle, we think, is fully [251]*251sustained by Chambers v. St. Louis, 29 Mo. 576; Land v. Coffman, 50 Mo. 252; City of St. Louis v. Shields, 62 Mo. 247.
In Chambers v. St. Louis, Scott, J., said: “ Whether these lands are necessary for the corporation, is a question that can only arise in a proceeding instituted by the State against the city for abusing her right to purchase land. The city had a power to purchase; if that power has been exceeded, then it has been violated, and the city charter may be forfeited in a suitable proceeding; and until that is done she will hold the lands. .Shall she be compelled to, contest, with every occupant who may get possession of them, her right to take and hold the lands ? ' There being a right in the city to purchase, if there is a capacity in the vendor to convey so soon as a conveyance is made there is a complete sale; and if the corporation, in purchasing, violates or abuses the power to do so, that is no concern of the vendor or his heirs. It is a matter between the State and the city.”
. And in Land v. Coffman, Judge Adams, speaking for the court, in relation to the capacity of a railroad company to receive and dispose of lands, says: “ But the amount of lands it may receive cannot be decided between these parties; conceding the power to receive lands for the purpose aforesaid, no one except the State can raise the question as to the amount that may be received.”
The case of the Brooklyn Central Railroad Co. v. Brooklyn City Railroad Co., 32 Barb., relied upon by respondents, fully sustains this view. There the court said: “If the Central company claim that the common council have the right to annul or impair the grant to the city company for breach of the condition to completé the work in a given time, it encounters this impediment. The condition to complete within a given time, is one of those distinguished in law as conditions subsequent. The effect of a deed with a condition subsequent, is to vest the estate in the grantee, subject to be defeated by his omission to perform the con[252]*252dition. The omission does not ipso facto determine the estate, but exposes it to be determined at the election of the grantor. These conditions and forfeitures are not favored in law, because they tend to destroy estates. When the grantor institutes proceedings to recover the estate for conditions broken, the grantee may show that its performance has become impossible by reason of the acts of the grantor, or has been waived or dispensed with.” Here the State is the grantor, and she alone can proceed against the,company to arrest its proceedings to extend the road for a breach of the condition.
In the case of the Mississippi & Tennessee Railroad Co. v. Devaney, 42 Miss. 555, Shackleford, J., delivering the opinion of the court, said: “ Again, if the right of way had been purchased from the defendant in error (Devaney) over his land, as proposed by the plaintiff in error (said Co.), and the connection made as it has been done, without opposition from Devaney, who could object to the running of their cars over their joint bridge and upon the track of Mississippi Central road ?”
In that case the road had been completed to Granada, crossing the Yallabusha river over its own bridge. The Mississippi Central road also ran to Granada, crossing the same stream over a bridge of its own. In 1863 these bridges were burned by military forces, and the pecuniary embarrassments of the companies compelled them to unite in rebuilding the bridge of the Mississippi Central, and this necessitated the connection of the Mississippi & Tennessee with the other road, at a point north of Granada, and of course the abandonment of its road from Granada to the point at which it deflected to make that connection. The court held, in an able opinion, that railroad companies have power to re-locate the lines of their roads, after their completion under the first location, and to condemn, for the purpose of such re-location, private property, if there be a manifest necessity for the change, and no detriment thereby accrues to the public. We do not refer to that [253]*253portion of the opinion as approving it, but to show the diversity of opinion on this subject, and that courts of the highest respectability have claimed for railroad companies the right to condemn the lands of individuals to make a change of location of their roads, even after they have been completed and operated. The ease, however, fully sustains ■the doctrine that no individual can interfere to prevent a company from laying its track over a right of way already acquired.
In Ross v. The C. B. & Q. R. R. Co., 77 Ill. 127, the statute of the Legislature of Illinois required the road to be completed within eight years after its passage. Before the expiration of that time Ross, the defendant, had by his deed agreed to convey to the company a right of way through any land or town lots owned by hinj. in Fulton county, Illinois. The company built its road through his premises, after the expiration of the eight years given by the act for the completion of- the road, and he sued in ejectment, and the company filed its bill to enjoin that proceeding and compel Ross'to convey the right of way. There was a decree in conformity to the prayer of the company’s bill, and Ross appealed to the Supreme Court. Scholfield, J., delivering the opinion of the court, said: “ The time specified for the completion of the road, in the 5th section of the act of February, 1854, was not irrevocable. It was competent for the Legislature and the company to change it at any time by mutual consent. The State alone could take advantage of a-failure in this respect on behalf of the company, and if it should choose to waive its rights on that account, no one else could complain. While it may be said that the time within which the road was tobe completed, may be presumed to have been within the contemplation of the parties when this instrument was executed, it may, on- the other hand be said, it may also be presiimed to have been within their contemplation that this provision might be subsequently changed.’'
[254]*254The case of the Attorney-General v. West Mis. R. R. Co., 36 Wis. 466, cited by the Court of Appeals, was a proceeding by the State, and does not conflict with the views we have expressed. It would, it strikes us, be a ¡monstrous doctrine that a railroad company, having completed nine-tenths of its road, and acquired the right of way for its entire length, within the time prescribed by the charter for its completion, could by an individual be arrested in the completion of the remaining one-tenth, after the expiration of the time; and in this contest it is to be borne in mind, that the city of St. Louis is but an individual, having only the rights of an individual, and in no sense representing the State.
Now, whether we regard this track on Poplar street to the Levee and thence to the elevator, an extension, a branch road, a spur, or a side-track, can make no difference, because, by its charter, the company had authority to build branch and lateral roads and side-tracks, and whether these could only be built as the main road, within the time for completing the latter, yet no one could prevent the company from building them over rights of way already acquired, except the State of Missouri.
5. branch bailSmnatio£saaserto time of bmiamg.
But we are not prepared to say that a company which is limited as to the time given for the completion of its mam line, and has power to build branch roads must do so within that time, or forfeits right to build them. There was no limit to the authority to build branch roads by the charter of the Pacific company, except that they were not to exceed in length fifty miles from its main line. The railroad companies were chartered and assisted by the State to complete their roads, for the purpose of developing the resources of the State. Some of these roads ran through sparsely settled counties, to which, it was believed, that the construction of railroads would attract population.
But few of them at first, were in a condition to buiia branch roads, and the State was called upon, by all of [255]*255them, and. liberally responded to loan its money and credit to aid them to complete their main lines. The necessity for branch roads probably did not then exist, and would not arise until after the completion of the main lines. But whether they could construct these branch roads, and for that purpose condemn the lands of individuals after the expiration of the time for the completion of the main road, we will not now determine, but- we think that the authority of this company to build a branch road, over a right of way already acquired, is fully settled by the cases above cited.
6. branch rah-roads.
The Court of Appeals and the respondents’ attorney seem to think that it could not be a branch road, because ^ ran ^11 same general direction as the main track. If the company, by building to Seventh street, and there stopping for years, is precluded forever from extending its main line east, under its charter, as held by the Court of Appeals, then that is as much its eastern terminus as if it had been so fixed by the charter. Now, is there anything in the charter which forbids it from building a branch road east to the Mississippi river? Can it be that the company may run a branch road to any point of the compass except east, or in the general direction of the main line ? We think such a position untenable.
But suppose that we are wrong, and that under the original charter the Pacific Railroad Company, after completing its road to Seventh street, had no right to extend it to the Mississippi, or to construct a branch road to the Mississippi liver, or any distance east of Seventh street; yet, by an act of the General Assembly of Eebruary 15th, 1864, “ to provide for the convenient delivery of railroad freight in the city of St. Louis,” the North-Missouri, the Iron Mountain and the Pacific railroad companies were authorized to connect their lines of roads with the main lines of each other within the county of St. Louis, and to lay switches to unload freight into the St. Louis grain ele[256]*256vator, &c. It is conceded by the respondents, and this seems to have been the opinion of the Court of Appeals, that the Pacific company had authority by that act to lay its track along the street, hut it is contended that the company waived the right by accepting the provisions of the ordinance of the city of St. Louis, authorizing the company to lay its track along Poplar street, that it forfeited the right conferred by the statute by non-acceptance, and» that the act was repealed by the constitution of 1865.
7Ágainst°exekce3e powers * muniot streets° uoense™
In July or August, 1870, with the assent of the city given by ordinance on certain conditions, the Pacific comPany a track from its main track near Ninth street, along Poplar to Front street, or the Levee on the hank of the Mississippi river, thence along the Levee to the St. Louis grain elevator, there connecting with the North Missouri, railroad. The city, as a condition to its assent, required that the track along Poplar street should be torn up in January, 1872. Afterwards, on the 26th of January, 1872, at the request of the- company, the city passed an ordinance extending the privilege to the 1st of January, 1873, on certain conditions in the ordinance specified. After the passage of this last ordinance in February, 1872, the Pacific company declined to accept its provisions, notified the city of the fact, and tore up the track at a point between Eighth and Ninth streets, at the Fifth street crossing, and near the elevator, making breaks of several feet at those points; and the track remained in that condition for several weeks, when it was relaid by the company.
The assent of the city was not necessary to perfect the right which the company acquired by the act of the General Assembly to lay this track along the street. The State has absolute control of the streets in cities and other' .public highways; and a city has no authority, unless it be conferred by the Legislature, to authorize the use of any street within its limits for the construction and operation of a‘railroad to be traversed by a locomotive worked by [257]*257steam. Dillon on Mun. Corp., §§ 575, 578, 579. And said the Coui’t of Appeals in this case : “ Streets, in incorporated cities and other public highways, are subject to the paramount authority of the Legislature in the regulation of their use.”
Did the acceptance of the privilegs from the city to lay the track estop the company from claiming the right to lay it under the act of the General Assembly ? The ordinance was a nullity. The city undertook to grant a franchise which it had no authority whatever to dispose of. •Upon its face., the ordinance was null and void. The company received nothing from the city as a consideration for relinquishing, or waiving the privilege granted by the General Assembly. The theory upon which railroad conrpahave been incorporated with power to condemn private property for rights of way is that they are public, not private enterprises — that the public has an interest in their construction and operation, and that the public welfare demands them.
Some courts have even gone so far as to hold that they can be compelled by mandamus to build them. The right of the city in its streets, and the control which the Legislature has over them, are matters of which the courts will take judicial notice. The city ordinance conferred no right, and could impose no obligation upon the company inconsistent with, or impairing the franchise granted by the State. The Legislature deemed it a matter of public concern, that the Pacific road should connect with the North Missoari and the Iron Mountain roads, at the St. Louis elevator, and passed an act for that purpose, and it is doubtful, if the right to make that connection by laying the track in question, could have been waived by the company, even for a valuable consideration received from the city, other than another route which would have answered the public demand. It is questionable whether the courts would not hold such a contract void as against public policy — and it seems to us idle to talk of a waiver of that [258]*258right by asking the consent of the city, and 'obtaining it— to do, what the company already had the right to do, without such consent. Why it was asked, cannot be conjectured, unless it vas done in a spirit of conciliation by the company, to have the good will, rather than the emnity of the city authorities, and out of complaisance to them, to get their consent for doing what the company could just as well have done without such consent. There was no such relation as that of licensor and licensee created by the ordinance of the city, between the city and the Pacific company, for as we have seen, the city was utterly incapable of conferring upon the company the right to lay its track along a street of the city.
8 ____ •
But if such a relation were created, the company surrendered the possession of the street to the city in Eebruary, 1872, tore up a portion of the track, abandoned the use of it, and this state of things continued for three weeks, and, then, the company under the right granted by the State, repaired its track and resumed its use. It did surrender to the city the possession of the street, and within the three weeks which elapsed after the company notified the city, that it rejected the conditions of the ordinance, the city authorities had complete possession of the street in question, and could have cleared it of the obstruction .created by the company’s track. In no view that can be taken of the case, has tbe doctrine of estoppel any application.
9. railroads: actory privileges,
But it is contended that the company forfeited the franchise granted by the act, by non-acceptance. There was no time prescribed by .the act within which the connection at the elevator should be made, and the laying of their tracks by the several companies named in the act, was an acceptance of its provisions. When the Pacific company first laid its track, it had no valid authority to do so, except from the State, and the laying of the track then, must be referred to the right conferred by the act. At all events, it accepted it, after [259]*259it had abandoned the track and surrendered the street to the city, by repairing the track, where it had been torn up, and asserting its right to use and maintain it under the ■ act of the General Assembly. -
io. sECTrou 27, aet1865° stltut!»on 0
But 'respondent insists that the 27th section of article 4, of the constitution of 1865, repealed the act in question. That section reads as follows: “ The General Assembly shall not pass special laws granting to any individual or company the right to lay down railroad tracks in the streets of any city or town.” There is no conflict between this section and the act of the Legislature. This section of the constitution is prospective in its operation. Numerous decisions, and notably that in the case of the State ex rel. v. Macon County, 41 Mo. 457, have settled that question. The act of the General Assembly upon which the company relies, was passed before the adoption of the constitution, and the 17th section of the constitution was restrictive of the power of subsequent legislatures, and had no retrospective effect to repeal past •legislation.
The fact; if established, that the track destroyed the use of the street for any_other purpose, cannot be considered as depriving the company of the right granted by the General Assembly. It would have been a good reason perhaps, for a refusal to permit railroad companies to lay their tracks along the narrow streets of the old town of St. Louis ; but the "Legislature has seen proper to give to the Pacific company that right, and neither the city nor the courts can rightfully deprive it of the franchise. That the track was badly constructed and kept, and that trains passed over it at all hours, and at a dangerous rate of speed, were matters which might have been regulated by reasonable ordinances of the city, but did not authorize the city to tear up the track, or to prevent the company from relaying it.
Respondents contend that the Pacific Railroad Company had no vendible interest in Poplar street, or its track on. [260]*260Poplar street, and cite as authority to sustain them, The People v. Duncan, 41 Cal. 510, and McPheeters v. Merimac Bridge Co., 29 Mo. 465. In these cases it was held that a franchise could not be sold except by the authority of the granting power. Here the grantor was the State, and the State authorized the sale.
"We have not examined the question whether this cause was properly certified from this court to the Court of Appeals. Whether it was or not, it is now here, and the other questions presented by the record must be determined, and therefore that is not now a material question.
We have given this case the attention which.its importance demands, and a careful examination of the authorities has satisfied us that the judgment of the Court of Appeals should be, and with the concurrence of the entire bench, it is accordingly reversed.
Reversed.