This is a condemnation proceeding instituted by the City of Kirksville in furtherance of its effort to extend one of its streets across the right of way and tracks of the defendant railroad company. The petition, which was filed in the Circuit Court of Adair County December 15, 1919, is as follows:
"To the Honorable Circuit Court of Adair County, Missouri. Our petitioner, in the above entitled cause, respectfully shows to the court and alleges that the defendant, Wabash Railway Company, is a railroad corporation, and has a principal business office at the City of Saint Louis, Missouri, and owns a line of railroad running north and south through the City of Kirksville, which said line of railroad, and right of way, runs across and over the following described lands situated in said city, to-wit: Beginning at a point in said city where the north line of Normal Avenue (a public highway or street of said city formerly called, and shown on the plat of Dodson's Addition on file in the office of the Recorder of Deeds of Adair County, Missouri, Water Street), intersects the east line of the defendant Wabash Railway Company's right of way, and running from thence west to the east line of Fourth Street, and from thence south to a point in line with the south line of said Normal Avenue (formerly called Water Street), and from thence east to the east line of said railway company's right of way, and from thence in a northeasterly direction to the place of beginning, and said lands are owned by said defendant, Wabash Railway Company; that said Normal Avenue, formerly called Water Street, is a public highway of said City of Kirksville, and now is and has been used as a public highway for many years last past both east and west of said described lands; that defendant, Walker D. Hines, is the Director General of Railroads and is in control of said line of railroad and of said railway company.
"Your petitioner further states that where the said Normal Avenue crosses the above described part of defendant
railway company's right of way and railroad track the grade of said railroad track is ten feet or more, to-wit, fourteen feet, higher than the surface of said Normal Avenue; that on, to-wit, the 18th day of August, 1919, the council of said City of Kirksville did duly pass and the mayor did duly approve and sign an ordinance numbered 3486 and which said ordinance is now in full force and effect, and wherein in and by said ordinance the above described lands were condemned for the purpose of extending said Normal Avenue across the same and under the track of said railway company for the purpose of public travel, and wherein by said ordinance it was provided that part of said Normal Avenue so made by extension across said lands or right of way be graded to the grade established by said ordinance, and said ordinance further provided for and defined the limits within which private property should be assessed to pay damages for such taking or damaging of property for public purposes, a duly certified copy of which said ordinance, is herewith filed, and the limits therein defined are as follows: . . . And it was further provided by said ordinance that the city attorney of said city begin the necessary proceedings to condemn said property and to ascertain the benefits and damages by reason of such taking or damaging of private property. . . . Wherefore your petitioner prays the appointment of three disinterested commissioners, freeholders of Adair County, Missouri, to assess the damage. . . ."
The defendants appeared and demurred to the petition on the ground "that this court has no jurisdiction of the subject of this action, because exclusive jurisdiction thereof is vested in the Public Service Commission of the State of Missouri."
The demurrer was sustained and final judgment rendered dismissing the cause. From that judgment plaintiff appeals.
I. The City of Kirksville is a city of the third class. Under Section 9261, Revised Statutes 1909, it can take private property for public use "for the purpose of establishing, opening, widening, extending or altering any street." The manner in which it may do so is prescribed by Sections 9262 andStreet following. Under the broad powers so delegated to it,Across it can determine for itself, in the first instance,Railroad. the necessity, expediency and propriety of exercising eminent domain in opening or extending its streets. Acting in good faith, it may, generally speaking, locate and establish streets whenever and wherever it elects and take private property within their boundaries for the use thereof, provided such use be in fact a public one. [Kansas City v. Hyde,196 Mo. 498, 506; Simpson v. Kansas City, 111 Mo. 237.] There is, however, at least one limitation upon the power of appellant and other municipalities in this State to determine the location of their streets; they cannot say where they shall cross railroads. Sub-section 2 of Section 50 of the Public Service Commission Law (Laws 1913, p. 589) provides: "The commission shall have the exclusive power to determine . . . the particular point of crossing . . . of each crossing . . . of a street by a railroad or vice versa." The appellant could not, therefore, determine the particular point of crossing of the crossing of defendants' railroad by its proposed street extension. It could not do so even subject to the approval or consent of the Public Service Commission, because it had no power at all in the premises. The commission is invested with the exclusive power.
According to the petition plaintiff seeks to condemn, for the purpose of extending one of its streets, a specific parcel of land, therein described, occupied by defendants' right of way and railroad tracks. The petition does not allege that such parcel of land is the locus of the particular point of crossing of the crossing of defendants'
railroad by the proposed street extension as determined by the Public Service Commission. If a municipality has no authority to determine the place of the crossing of a railroad by a street that it proposes to open or extend, obviously it cannot appropriate land for such a crossing unless and until the situs
is determined by the tribunal invested with the power so to do. Such prior determination is, therefore, a condition precedent to the right to condemn. As it nowhere appears from the petition that the land therein described and which is sought to be condemned is at a place that has been determined upon and fixed by the Public Service Commission as the point of crossing of the railroad by the proposed street extension, the petition does not state a cause of action.
As previously stated, the ground of the demurrer was "that the court has no jurisdiction of the subject of this action because exclusive jurisdiction thereof is vested in the Public Service Commission." But evidently the court did not sustain the demurrer because it had no jurisdiction of the subject of the action, but because the petition failed to state a cause of action. The judgment recites that "the plaintiff refuses to amend its petition, but elects to stand thereon." In this particular cause the court did not have jurisdiction to grant the relief prayed for simply because facts entitling plaintiff to such relief were not stated in the petition and not because it had no jurisdiction of the subject-matter.
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This is a condemnation proceeding instituted by the City of Kirksville in furtherance of its effort to extend one of its streets across the right of way and tracks of the defendant railroad company. The petition, which was filed in the Circuit Court of Adair County December 15, 1919, is as follows:
"To the Honorable Circuit Court of Adair County, Missouri. Our petitioner, in the above entitled cause, respectfully shows to the court and alleges that the defendant, Wabash Railway Company, is a railroad corporation, and has a principal business office at the City of Saint Louis, Missouri, and owns a line of railroad running north and south through the City of Kirksville, which said line of railroad, and right of way, runs across and over the following described lands situated in said city, to-wit: Beginning at a point in said city where the north line of Normal Avenue (a public highway or street of said city formerly called, and shown on the plat of Dodson's Addition on file in the office of the Recorder of Deeds of Adair County, Missouri, Water Street), intersects the east line of the defendant Wabash Railway Company's right of way, and running from thence west to the east line of Fourth Street, and from thence south to a point in line with the south line of said Normal Avenue (formerly called Water Street), and from thence east to the east line of said railway company's right of way, and from thence in a northeasterly direction to the place of beginning, and said lands are owned by said defendant, Wabash Railway Company; that said Normal Avenue, formerly called Water Street, is a public highway of said City of Kirksville, and now is and has been used as a public highway for many years last past both east and west of said described lands; that defendant, Walker D. Hines, is the Director General of Railroads and is in control of said line of railroad and of said railway company.
"Your petitioner further states that where the said Normal Avenue crosses the above described part of defendant
railway company's right of way and railroad track the grade of said railroad track is ten feet or more, to-wit, fourteen feet, higher than the surface of said Normal Avenue; that on, to-wit, the 18th day of August, 1919, the council of said City of Kirksville did duly pass and the mayor did duly approve and sign an ordinance numbered 3486 and which said ordinance is now in full force and effect, and wherein in and by said ordinance the above described lands were condemned for the purpose of extending said Normal Avenue across the same and under the track of said railway company for the purpose of public travel, and wherein by said ordinance it was provided that part of said Normal Avenue so made by extension across said lands or right of way be graded to the grade established by said ordinance, and said ordinance further provided for and defined the limits within which private property should be assessed to pay damages for such taking or damaging of property for public purposes, a duly certified copy of which said ordinance, is herewith filed, and the limits therein defined are as follows: . . . And it was further provided by said ordinance that the city attorney of said city begin the necessary proceedings to condemn said property and to ascertain the benefits and damages by reason of such taking or damaging of private property. . . . Wherefore your petitioner prays the appointment of three disinterested commissioners, freeholders of Adair County, Missouri, to assess the damage. . . ."
The defendants appeared and demurred to the petition on the ground "that this court has no jurisdiction of the subject of this action, because exclusive jurisdiction thereof is vested in the Public Service Commission of the State of Missouri."
The demurrer was sustained and final judgment rendered dismissing the cause. From that judgment plaintiff appeals.
I. The City of Kirksville is a city of the third class. Under Section 9261, Revised Statutes 1909, it can take private property for public use "for the purpose of establishing, opening, widening, extending or altering any street." The manner in which it may do so is prescribed by Sections 9262 andStreet following. Under the broad powers so delegated to it,Across it can determine for itself, in the first instance,Railroad. the necessity, expediency and propriety of exercising eminent domain in opening or extending its streets. Acting in good faith, it may, generally speaking, locate and establish streets whenever and wherever it elects and take private property within their boundaries for the use thereof, provided such use be in fact a public one. [Kansas City v. Hyde,196 Mo. 498, 506; Simpson v. Kansas City, 111 Mo. 237.] There is, however, at least one limitation upon the power of appellant and other municipalities in this State to determine the location of their streets; they cannot say where they shall cross railroads. Sub-section 2 of Section 50 of the Public Service Commission Law (Laws 1913, p. 589) provides: "The commission shall have the exclusive power to determine . . . the particular point of crossing . . . of each crossing . . . of a street by a railroad or vice versa." The appellant could not, therefore, determine the particular point of crossing of the crossing of defendants' railroad by its proposed street extension. It could not do so even subject to the approval or consent of the Public Service Commission, because it had no power at all in the premises. The commission is invested with the exclusive power.
According to the petition plaintiff seeks to condemn, for the purpose of extending one of its streets, a specific parcel of land, therein described, occupied by defendants' right of way and railroad tracks. The petition does not allege that such parcel of land is the locus of the particular point of crossing of the crossing of defendants'
railroad by the proposed street extension as determined by the Public Service Commission. If a municipality has no authority to determine the place of the crossing of a railroad by a street that it proposes to open or extend, obviously it cannot appropriate land for such a crossing unless and until the situs
is determined by the tribunal invested with the power so to do. Such prior determination is, therefore, a condition precedent to the right to condemn. As it nowhere appears from the petition that the land therein described and which is sought to be condemned is at a place that has been determined upon and fixed by the Public Service Commission as the point of crossing of the railroad by the proposed street extension, the petition does not state a cause of action.
As previously stated, the ground of the demurrer was "that the court has no jurisdiction of the subject of this action because exclusive jurisdiction thereof is vested in the Public Service Commission." But evidently the court did not sustain the demurrer because it had no jurisdiction of the subject of the action, but because the petition failed to state a cause of action. The judgment recites that "the plaintiff refuses to amend its petition, but elects to stand thereon." In this particular cause the court did not have jurisdiction to grant the relief prayed for simply because facts entitling plaintiff to such relief were not stated in the petition and not because it had no jurisdiction of the subject-matter. There is nothing in the Public Service Commission Law to which our attention has been called, certainly nothing in Section 50 thereof cited by counsel, that warrants the conclusion that the Commission is in any sense invested with the power of eminent domain, or with authority to direct or control cities and other municipalities in the exercise of that power in establishing and opening streets. Questions relating to the necessity, expediency or propriety of establishing and extending streets and highways, even when they cross railroads,
are not matters for its consideration. That power is lodged elsewhere. Speaking to the purposes of this case only, the Commission has the exclusive power, and no other, to determine the "particular point of crossing" of the crossing of a railroad by a proposed street. This is a police power to be exercised solely with a view to the public safety and is a limitation on the power of eminent domain delegated to municipalities. After the particular point of crossing has been determined by the Commission, a city of the third class has full authority to condemn the locus for a street and the circuit court has exclusive original jurisdiction of the proceeding, just as before the passage of the Public Service Commission Act.
II. When the Public Service Commission Statute was enacted, Section 10626, Revised Statutes 1909, was in force. It required railroad corporations to construct and maintain (at their own expense) good and sufficient crossings where their railroads crossed public roads or town streets, specified the manner in which grade crossings should be constructed and provided for a separation of grades under certain conditions. Section 50 of the Public Service Commission Act gives the Commission the exclusive power not only to determine the particular point of crossing, but to determine and prescribe the manner of constructing crossings and to apportion the expense thereof. Section 139 of the Act declares that its provisions were not intended to repeal any law then in force, unless in direct conflict therewith, but to be supplemental to such laws. At the same session at which it passed the Public Service Commission Law, the Legislature repealed Section 10626 and enacted a new section in lieu thereof, in substantially the same language as the old, to be known as Section 10626 (Laws 1913, p. 696). By the new section the provisions of the old were made applicable to crossings in villages and cities of the third class in addition to those mentioned in the old one. This was practically the only change effected by the re-enactment.
It is the contention of appellant, as we understand it, that where the provisions of said Section 50 conflict with those of Section 10626, the latter must control and be given effect, because they deal with particular subjects and specific conditions while those of the former are general in character. If this contention be sound, as to which we express no opinion, it would avail appellant nothing in this case. None of the provisions of Section 10626 is in any respect inconsistent with those of Section 50 conferring upon the Public Service Commission the exclusive power to determine the particular point of crossing. What construction should be given these statutes with reference to their several provisions dealing with the manner of constructing crossings and the expense incident thereto can be determined only in a case involving such questions.
The judgment of the circuit court was for the right party and should be affirmed. It is so ordered.
Brown and Small, CC., concur.