State ex rel. Kansas & Texas Coal Railway v. Shelton

BRACE, J. This is a proceeding by certiorari. The relator is a railroad corporation, organized under article 2, chapter 42, Eevised Statutes 1889, for the purpose of building, operating and maintaing a standard gauge railroad from a point in, at, or near the town of Bevier, in Macon county, to a point in, at, or near, the town of Ardmore, in said county. On the 17th of April, 1899, the relator filed in the circuit court of said county its petition under the provisions of article 6 of said chapter, to condemn a right of way for its railroad “along and across one acre of ground south of the bridge over Sulphur Creek in Macon county, and for about thirteen hundred feet along the east side of the eastern railroad track of the Northwestern Coal & Mining Company, and south of one acre of land aforesaid, and also a crossing over said eastern railroad track of said* Coal & Mining Company at a point south of the thirteen hundred foot strip of ground.” The petition was in 'the usual form, naming the Northwestern Coal & Mining Company, W. S. Watson, The United States Trust Company, The Kansas & Texas Coal Co., James C. Strean and E. C. Eombauer as defendants, and -praying for the — 682 — appointment of commissioners to assess their damages. Summons thereon was duly issued, and served, and upon the return day thereof the said Northwestern Coal & Mining Company and W. S. Watson filed separate answers thereto. The answer of the Northwestern Coal & Mining Company, after putting in issue the allegations of the petition, contained the following plea: “Further answering this defendant says that it is informed and believes and so charges the fact to be that the plaintiff is not a public railroad corporation and has no intention to build and own a public railway built for public use and benefit, but that the plaintiff corporation has been promoted and organized by and is owned by and belongs to the defendant The Kansas & Texas Coal Company; that said coal company and said railway have the same officers and directors, and largely; if not entirely, the same stockholders. “That the defendant The Kansas & Texas Coal Company is a coal corporation and as such owns and controls a large number of coal mines and a large amount of coal lands lying in the townships of Bevier (township 56, range IT, and township 57, range 15) and Chariton (township 56, range 15), that is to say, about the city of Bevier and about Ardmore and between said places; that said coal company for its own private benefit and for no other purpose whatever, promoted, organized and is managing and controlling said coal railway and as such secured the said incorporation, and as such is maintaining this proceeding to condemn the right of way over this defendant’s land; that said coal company has put up and furnished all the money, means and capital of the said coal railway; that on May 12, 1898, the said coal railway executed to The St. Louis Trust Company its mortgage on all its rights, tracks, property and franchises of every kind and description as trustee for the said coal company, in consideration that the said coal company would loan and did loan the said coal railway $70,000, for which it executed to said coal company its note of that date. — 683 — “And this defendant says that the only business, purpose, object and use of said alleged railroad is the private use, benefit, interest and advantage of the said coal railroad and that there is no other business, use or demand existing for the building of said alleged railroad. So this defendant says that it is a fraud upon the law and in contravention of the rights of the owners of property to suffer and allow said railroad company to use the right and power of eminent domain to condemn the private property and land of this defendant or of any other person. “Defendant says thalt it is a coal corporation doing a mining business near Bevier and as such owns the land over which plaintiff intends to condemn a right of way for its alleged railroad; that as appears from the plat filed with plaintiff’s petition it has constructed and owns in connection with the defendant Watson a railroad along and over said lands; that said railroad was 'built at a large expense and outlay of money in order to carry on and conduct defendant’s business of mining coal, and i!t has along said railroad a shaft sunk to its mines and from said mines and shaft are taken daily many tons of coal which this defendant by means of its said railroad conveys to the Hannibal & St. Joseph Railroad for shipment to the markets; that said shaft was sunk and said mines were built and eonstrudted at the cost of many thousands of dollars to this defendant and are of great value. This defendant says that it has for its railroad and the operation of its business thereon, only a right of way of forty feet which it has purchased for that purpose and that all of said forty feet is necessary for the proper operation of its mines and its railroad and that they can not successfully and conveniently be operated with a less width of right of way than defendant has bought and paid for; that plaintiff’s proposed right of way, as appears from its plat filed with its petition, is within seven feet of the center line of defendant’s line as now laid down and operated on said premises; that if said proposed — 684 — track be condemned this defendant’s business will be largely, if not wholly, destroyed and there will be no room for turn outs, side tracks, passing tracks, storage tracks and other necessary structures and buildings necessary for the proper and profitable use and operation of its said mines. “And so this defendant says that plaintiff can not under the guise of building a railroad condemn the track and right of way of this defendant and thereby destroy its business for the benefit of its rival and competitor in business, The Kansas & Texas Coal Company, to which the said plaintiff belongs. “Defendant further says that the defendant Watson is a part owner in defendant’s said railroad and owns and operates a mine some half mile beyond the plaintiff’s said mine, which said mine is known as Watson’s Mine No. 2; that defendant’s said railroad extends on to said Watson’s Mine No. 2, at which mine said Watson is conducting and carrying on a mining business'and daily takes from said mine many tons of coal which are sent over said railroad by defendant’s mine to the Hannibal <fc St, Joseph Railroad to be shipped to the markets, and the condemnation of the alleged right of way described in plaintiff’s petition would not only ruin and destroy defendant’s railroad and cripple and injure defendant’s business, but would also ruin and destroy the interest of the said Watson in the said railroad and also cripple and injure said Watson and cut him off from said Hannibal & St. Joseph Railroad and would in fact reduce this defendant and the said Watson to the necessity of securing an approach to said Hannibal & St. Joseph railroad upon the use of plaintiff’s alleged i’ailroad, and subject them to the prices, extortions and monopoly of the said plaintiff and its owner, the said Kansas & Texas Coal Company, the rival and competitor in business of this defendant and the said Watson. “And further answering this defendant says that there exists no necessity for the plaintiff to locate and establish its alleged railroad upon the line and track marked out and — 685 — described in its petition for the reason that this defendant is informed and believes and charges the fact to be that plaintiff or its owner, The Kansas & Texas Coal Company, owns a right of way one hundred feet wide adjoining and along the north and east side of defendant’s right of way on which plaintiff could well and easily construct and build and operate its railroad without interfering with any right or the business of this defendant. “And so this defendant says that it is wholly inequitable, unjust and contrary to law and good conscience to allow the ■plaintiff to proceed to condemn and construct and build its railroad upon the line marked out in plaintiff’s petition and the accompanying plat, since the same is not for public use but solely and only for the use, benefit, advantage and emolument of the plaintiff, the said Kansas & Texas Coal Company; and defendant says that.its business would be irreparably injured and its damage could in no adequate sense be computed or estimated, and its business would be greatly injured, not to say 'ruined, by allowing plaintiff to build and construct its railroad upon the line marked out or to condemn plaintiff’s property for the purpose of such construction. “Wherefore defendant prays the court that it will dismiss plaintiff’s petition; that it will refuse to- appoint commissioners to assess damages; that it will restrain and enjoin the plaintiff from condemning or attempting to condemn a right of way for its alleged railroad on and along the line described in its petition and marked out in the plat accompanying said petition or upon defendant’s right of way and premises mentioned in said petition, and will restrain and forever enjoin the said plaintiff from building its said railroad upon said line as prayed in its petition, and for all other orders, judgments and decrees that may to the court seem equitable and right, and for general relief.” The answer of Watson was to the same purport, adopted — 686 — the answer of the Northwestern Coal-& Mining Co., and joined in its prayer for relief. Afterwards, on the 13th of June, 1899, the issues coming on to be heard in said circuit court before the respondent, the Hon. Nat. M. Shelton, judge thereof, on motion of relator for the appointment of commissioners as prayed for in the petition, judgment thereon was rendered as follows: “And now the court having heard all of the evidence introduced by plaintiff and defendants for and against the motion of plaintiff for the appointment of commissioners herein to assess damages for the taking of the strip of land herein sought to be condemned, and being fully advised in the premises, doth order and adjudge that plaintiff is not entitled to such appointment, and overrules said motion and finds the issues herein for the defendants. And it is further ordered, adjudged and decreed, that plaintiff take nothing by its suit, and that defendants recover their costs herein expended and have therefor execution, and plaintiff objects and excepts to the action of the court at the time.” Afterward on the 2d of October, 1899, on the 'application of relator to one of the judges of this court the writ of certiorari now under consideration, was issued, directed to the respondent; to which in due time respondent made return, certifying a complete transcript of all the proceedings in the matter aforesaid in his court, from which the foregoing facts 'appear. Thereupon relator, on the 24th of October, 1899, filed its motion to quash the judgment aforesaid and remit the record with directions to the circuit court to appoint commissioners in said cause, and the respondent on the 9th of November, 1899, filed his motion to quash the writ. Thus the questions for determination are raised. This writ of certiorari is prosecuted, not as an auxiliary to an appeal, or writ of error, but as an original writ to1 quash the judgment in the circuit court, and in support thereof, — 687 — the relator in its motion to quash, assigns the following reasons: “First. That the judgment aforesaid, in form aforesaid, is illegal and void in this, because said judgment is founded upon an erroneous, illegal and improper construction of section 2741 of the Eevised Statutes of Missouri, said court holding that an ordinary business corporation, a coal company, ■as shown by the pleadings in this case, as well as by evidence, was entitled to claim protection of said section when the taking of the property sought to be condemned materially interfered with the use to which by law said coal company was authorized to subject the same. “Second. Because the evidence preserved of record shows'that the taking of the property sought to be condemned would not materially interfere with the uses to which by law -.said coal company was authorized to subject said lands. “Third. Because section 2741 of the Eevised Statutes of Missouri, if susceptible of the construction given thereto by the circuit court of Macon county, Missouri, is unconstitutional, illegal and void in this, that said section confers upon an ordinary business corporation an immunity from the exercise of the right of eminent domain by any corporation vested with that power, whereas any property owned by an individual is subject to the right of condemnation and has no such immunity; thereby denying to individuals the equal protection of the law, contrary to the fourteenth amendment ■of the Constitution of the United States and to section 30 of article 2 of the Constitution of this State. “Fourth. Because such a construction of section 2741 of the Eevised Statutes of Missouri of 1889 is contrary to section 4, article 12 of the Constitution of this State, which declares that The exercise of the power and right of eminent-domain shall never be- so construed or abridged as to prevent the taking, by the General Assembly, of the property' and franchises of incorporated companies already organized, or — 688 — that may hereafter be organized, and subjecting them to the public use, the same as that of individuals.’ “Fifth. Because such a construction of section 2741 of the Revised Statutes of Missouri of 1889, deprives the Kansas & Texas Coal Railway, the plaintiff in the cause aforesaid in the circuit court of Macon county, Missouri, of the benefits of section 13 of article 12 of the Constitution of this State, which is the following: ‘Any railroad corporation or association, organized for the purpose, shall have the right to construct and operate a railroad between any points within this State, and to connect at the State line with railroads of other States. Every railroad company shall have the right, with its road, to intersect, connect with or cross any other railroad, and shall receive and transport each the other’s passengers, tonnage and cars, loaded or empty, without.delay or discrimination.’ “Sixth. Because such a construction of section 2741 deprives the Kansas & Texas Coal Railway, the plaintiff in the said cause in the circuit court of Macon county, of an opportunity to construct the railway it is authorized to construct under the provisions of its charter and the Constitution and laws of Missouri. . “Seventh. Because the construction of section 2741 of the Revised Statutes of Missouri of 1889 given thereto by the circuit court of Macon county, and especially the construction given to the words ‘any corporation’ is, in fact, a declaration that any business corporation, whether vested with the power of eminent domain or not, can defeat the exercise of eminent domain when attempted by a corporation vested therewith simply because the defendant in the condemnation proceeding is an ordinary business corporation — all of which is contrary to the legal and proper construction of said section, and the words “any corporation” in said section plainly refer to a corporation vested with the power of eminent domain. “Eighth. Because such construction of said section 2741 — 689 — is contrary to the well known rule of law which is that all sections of a statute (that is to say, all- of the sections of article 6 of chapter 42 of the Revised Statutes of Missouri of 1889) should be construed together, and when thus construed it plainly appears that said section only refers to corporations having the power of eminent domain.” That the judgment should be quashed for these reasons, counsel for relator maintains, in an able and elaborate brief, in which many cases are eited from this and other jurisdictions. With most of the propositions of law announced in the brief, we have no fault to find. The common law writ of certiorari, however, has been so modified by statute or usage in most jurisdictions,' and its application and use have been so well defined by a long line of consistent deqjsions in this State running from Rector v. Price, 1 Mo. 198, decided in 1822, to State ex rel. v. Stephens, 146 Mo. 662, decided in 1898, that from thence can well be drawn the principles decisive of the question in hand, without recourse to authority from abroad. That the circuit court of Macon county had jurisdiction of the subject-matter of- the controversy in this condemnation proceeding, is beyond question. [R. S. 1889, secs. 2548, 2134 et seq.; State ex rel. v. Edwards, 104 Mo. 125; State ex rel. v. Railroad, 100 Mo. 59; St. Joe Term. R. R. Co. v. H. & St. Joe R. R. Co., 94 Mo. 535, and cases cited.] It appears from the record that Watson and the Northwestern Coal & Mining Company, by their answers to the summons, raised the question in that proceeding, whether their lands were subject to condemnation, and whether the use to which it was sought to condemn such lands was a public use. These were judicial questions, upon which the court had jurisdiction to pass. [St. Joe Term. R. R. Co. v. H. & St. Joe R. R. Co., 94 Mo. 535; City of Savannah v. Hancock, 91 Mo. 54.] And this must be conceded, for unless the court in refusing to appoint commissioners acted judicially, certiorari would — 690 — not lie. [In re Saline County Subscription, 45 Mo. 52; State ex rel. v. Harrison, 141 Mo. 18, loc. cit.] In St. Joe Term. R. R. Co. v. H. & St. Joe R. R. Co., 94 Mo. loc. cit. 542, it was said, per Black, J., speaking for the court: “The circuit court seems to have supposed that its powers under the statute were limited to an investigation of such question as relate alone to the -amount of damages; and this is the position taken by the respondent, to- which we do- not agree. It is open to the trial court, in these proceedings to-condemn property for public use, to determine whether the-use sought to be made of the property is really -a public use. [City of Savannah v. Hancock, 91 Mo. 54.] This may involve tile heajring of evidence, though ordinarily it does not. Again, the law denies to a telegraph company the right to- appropriate the land upon which certain buildings are situated, and to a railroad company the right to appropriate more than a defined quantity of land for depot purposes; and it restricts the use to which one corporation may subject the property of' another. If it appears on the face of the petition that the petitioner seeks to violate any of these provisions of the law, the petition should be rejected. If these or -any other valid objections to the'condemnation exists in point of fact, but do-not -appear on the face of the petition, they may be brought forward and interposed as a defense by -any appropriate pleading; and, if necessary to a full consideration of the issue, evidence may be heard. It has been the constant practice to-present these and kindred questions in the circuit court, and of this court to review the rulings thereon when the whole case is before the court on appeal or writ of error. [Lind v. Clemens, 44 Mo. 540; City of Hopkins v. Railroad, 79 Mo. 98; County Court v. Griswold, 58 Mo. 189; City of St. Louis v. Franks, 18 Mo. 41.] “It is true the statute makes no specific provision for raising these or like issues, .but it is utterly unreasonable to691 say tbat tbe defendant must be notified wben tbe petition will be beard, and yet wben be appears, be can not be heard to show that the petitioner has no right to condemn tbe particular property for tbe alleged use.”' It is equally clear tbat tbe judgment of tbe circuit court refusing to appoint commissioners and dismissing tbe relator’s petition, was a final judgment from wbicb an appeal or writ of error would lie. [State ex rel. v. Edwards, 104 Mo. 125; St. Joe Term. R. R. Co. v. H. & St. Joe R. R. Co., 94 Mo. 535, and cases cited; St. Louis & San F. R. R. Co. v. Evans, & Howard Brick Co., 85 Mo. 307, and cases cited.] Tbe objections of tbe relator to tbe judgment are not, and could not, be predicated on a want of jurisdiction in tbe circuit court to commit tbe errors of wbicb it complains, but on the fact tbat tbe court in adjudicating in a matter wherein it bad jurisdiction, did in fact commit those errors. Now, while certiorari is tbe appropriate remedy where an inferior tribunal acts without jurisdiction or in excess of its jurisdiction, or wben within its jurisdiction, but tbe action bf such inferior tribunal can not be reviewed on appeal or writ of error [State ex rel. v. Stephens, 146 Mo. 622; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. Harrison, 141 Mo. 12; State ex rel. v. Madison Co. Court, 136 Mo. 323; State ex rel. v. Dobson, 135 Mo. 1; State ex rel. v. Slover, 113 Mo. 202; C., R. I. & P. R. R. Co. v. Young, 96 Mo. 39; Han. & St. Joe R’y Co. v. State Board of Equalization, 64 Mo. 294; Snoddy v. County of Pettis, 45 Mo. 361; Rector v. Price, 1 Mo. 198]; yet in this State tbe law is also well settled tbat it can not be used as a substitute for appeal or writ of error; and tbat, where such tribunal bas jurisdiction and its action can be reviewed by appeal or writ of error, certiorari will not lie. [State ex rel. v. Grill, 137 Mo. 627; State ex rel. v. Valliant, 123 Mo. 524; State ex rel. v. Board of Equalization, 108 Mo. 235; State ex rel. v. Edwards, 104 Mo. 125; State ex rel. v. — 692 — Southern R’y Co., 100 Mo. 59; H. & St. Joe R. R. Co. v. Morton, 27 Mo. 317; Boren v. Welty, 4 Mo. 250.] As was said by Burgess, J., in Ward v. Board of Equalization, 135 Mo. loc. cit. 319: “It is well settled that the writ of certiorari only brings up the record, and only such matters as appear from the face thereof, and which go to the jurisdiction of the tribunal, to which the writ is sued out, can be reviewed by such writ.” By Sherwood, J., in State ex rel. v. Smith, 101 Mo. loc. cit. 175: “This writ, under constitutional provisions, is strictly the common law writ of that name; it only brings up the record, and can only reach errors or defects which appear on the face of the record of the tribunal to which it is issued, and which are jurisdictional in their nature (Railroad v. State Board, 64 Mo. 294;)” and by the same judge, in State ex rel. v. Dobson, 135 Mo. loc. cit. 20: “The power of this court is as comprehensive in this respect over inferior courts in this State, as was the court of King’s Bench in England in a similar way. And on many occasions has this superintending control been exercised by this court from the earliest days of its history down to the present time, in keeping circuit and other courts within the compass of their legitimate jurisdiction, -and in preventing them from transcending the bounds of their lawful authority .......Our inquiries, however, are limited under the common law practice which prevails in this State, to such errors as are of record and jurisdictional in their character.” By Black, J., in State ex rel. v. St. Louis Court of Appeals, 99 Mo. loc. cit. 221: “The writ can not be awarded for the simple purpose of correcting errors, if any there were. It must clearly appear that the court of appeals ■ has exceeded its legitimate powers.” By Macfarlane, J., in State ex rel. v. Edwards, 104 Mo. loc. cit. 126: “The office of a common law writ of certiorari is to bring the record of the proceedings of an inferior court or tribunal before a superior court to determine whether it had acted legally and within its juris — 693 — diction.......It is in the nature of a writ of error to review the proceedings of the inferior court or tribunal, and is only allowed where no appeal or writ of error or other available mode of review is afforded. [Railroad v. Young, 96 Mo. 41: Poe v. Machine Works, 24 W. Va. 517; Ennis v. Ennis, 110, Ill. 78; Hauser v. State, 33 Wis. 678; 46 Ga. 41, 47 Ark. 511.” See, also, State ex rel. v. Walbridge, 69 Mo. App. 657; State v. Schneider, 47 Mo. App. 669; State ex rel. v. Moniteau Co. Ct., 45 Mo. App. 387. ' Other cases in this jurisdiction might be added, but enough have been cited to show that the rule in this State is well established, and in entire harmony with the general rule prevalent on this subject thus stated in 4 Ency. of Plead. & Prac. 98: “At common law, and in those States which have not departed materially therefrom, the accepted'doctrine is, that where a tribunal has jurisdiction a writ of certiorari does not lie to correct mere errors in the exercise of such rightful jurisdiction. Such errors may be generally corrected by appeal, for which process certiorari can not be substituted.” As all the errors complained of in the condemnation proceeding under consideration can be corrected by appeal or writ of error, it follows that certiorari does not lie. The motion of the relator to quash the judgment should be overruled, and the motion of the respondent to quash the writ should be sustained, and it is accordingly so ordered. All concur except Sherwood, J., absent, and Marshall, J., dissenting.