The St. Louis Republic., 1901-06-19
JUDGE SHERWOODDECIDES
AGAINST PROPERTY OWNERS
In Case of the Suburban Street Railway Ordinances He Holds That
the Court Could Not Interfere in Advance With the Mu
nicipal Assembly of st. Louis
RErrBIIC SPECIAL.

Il
Sherwood has decided the injunction of Ger
tain property owners against the Municipal
Assembly of ST. Louis. in the case OF the
Suburban street railway ordinance.
He held that the Injunction could not Is
sue. the court having no jurisdiction The
court. he held. has M power to act. except
upon legislation already enacted. and could
not interfere in advance with the legisla-
tive body.
Opinion in Fall.
Judge sher~o,sIs opinion fonows: IL the su-
Y banc; T = Arbrghi e al. plaintiffs. vs..
This litigation presents these features:
First. temporary injunction granted by the
rpniar al ' aslss I'm aas 4 .i Ssihss and Nd
c.ners. all nemoers Of the Municipal Assembly
Sfsss. s ' u Sa, It, haSa " 'rs sa Ass ss m
strainrg such members In their ofaciai Ca
tssEs any further action uron or in relation TO
.ocns.l L,li No: - Tor an ordnance 70 b. en-
ahd Suburban Railway Conipauy to extend Its
a rainsy in % on SenF and aero en aaa stre
alleys: city eiSsks and panlie places in the
second. a ruie 10 snow cause, granted by the
Chief Justice Of this court directed 70 Daniel D.
70 appear ssf5re this court and to show esuse ,
y any they haSe: why writ cf pIohiDtisn m
petition Of plaintiffs herein.
sSs asserting ss 1s ruiz Ii. hs the is
grant the injunction COMPLAINED Of qn.ie. and
IL n'I him BY the e esniSiu,ion % ia and law. Of ,his
state, and more particularly by section 3.si'. H.
Fourth. a like return to such rule by carpen-
ter and other dsfenda:5s. in which ,hey as, asset, r.
su,hority Of an act Of the General Assembly q
Gorncii A oS noard Of trustee. ste Of any ncopors,sd
city from srrn'ins the .Ish, TO lay down I, ra,l
upon the retition Of owners reprssentins more
sOuRft b. used for such purposes.
approved April :, isss. ana under ara b virtue
Rs:.d % Cd S .sS: of aea a
PTS 81 sss CITY of s. Louis .a and sns III,
4 snds..ts say is composed Of persons who are
PDs1 and N 'a: ptse n s1 f.c an q
deftnd.nt. have no power or authority 70 grant
franchise to cons;r,sSi. rnainisin or operate any
TIf rar0sd sb s over along or a,oss any ,'rss me
@ the 81 Of ssss part
read purposes; and when the street. o. paris
thereof that is .opsh, to be 80 used. shall be
land owners shall not be valid unless the sar.e
Is n,s, sGned by more than onehalf Of the persons
each each. nile Or fractional par; of mile Of sach
Of such prepod s9r.e, in 'ns and ,ha sse
Petition Of such owners is thus made cond;-
ton precedent to the exercise OF such power
Owaers Of the Property Described.
o,.ns md these a defendant. say that they are the
properly property T. t. % used d. by then them In the r;anner @ de-
IN The '1a s h e whe m his IS
proceedins. as well ss in the preliminary writ Of
And these DEFENDANTS further say that in and
by the Council bill No. A. menronei in their
Tins in this proeeedng. Is proposed to give and
unto 1 ..d "a. S 81 hs any right, license and
struct. maintain and operate q street railway on
.1ss Of situated ,sSpi IN .aa
& and thereby TO enter into eontrae; NJ wit With sad
said St. Louis and Suburban Railway Company
IN sas s .a %
Ssovai Of the act. Of the General Assembly above
any right. license franchise TO construct. op-
ton avenue % That said T Iarton avenue q" $50 Is pub
lie street and highway In the city Of st. Louis.
and was formerly known as Chestnut street In
And these defendant. say that neither they. nor
on and frontins on said LAYTON aSenus. have
ss 81 g. s e 80 tS sne sss Ssc
thereof. for such street railway on said street.
10 each Of these return. respectively there xers
tute any legal reason why the preliminary rule
should not bs made absolute
J1r1sdicttOn Of Circuit Court.
These returns and the demurrers thereto write
down this question upon the record Did the
nicsp.i ASSEMBLY Of The city q 81 LSu.s from en-
acting the proposed ordinance! he question thus
rect sfirmance or direct denial Of the existence
OF such JUDICIAL power: a power pure. simple ard
incidents and consequences attendant on. or dow
ing from. the exercise or nonexescise Of such
In order to determine whether such judicial
power wit. jurisdiction. exists In any particu.
inquiry 1 mus, Be directed toward the fountain
head Of all authority. the iund.mentai law ..
powers Of government shall be divided into three
ot 9s,ch sa. os ouasa 70
separate magstracy. and NO pet,on lor soilec,
pSWsrs DOW % properly beionsilg to one Of those de-
partments shall exercise any power properly & Is- ,
Instances lin thus Constitution, expressly directed
ticls since the Constitution Of $50 was accepted
have been brscketed in the article ,ust quoted |;
phasis to its former provisions and prescriptions
This charter Of authority. as IS apparent at a !
ment into three distinct and named departments: !
sssh ray sns ana teen
not sstisied with such strict dsmarcation of ths I
e%pso1s f0rbias ether OF such Apartments
from passing the prohib.iery pIse,nets thu. Sr- ,
1 ioaasnx ss either Of tne o others and tSen con-
siase. by Giving the sole e.ssp1ion 70 tho un-
stance: In ,ais cOnssisu.ion expressly directed
q Given @neseer one of ,hSs
apartments has broken the close Of its neign- I
bor by trespassing over the appointed govern
procedure. the only test. to ascertain the truth
Of the matter thus in controversy is TO indus
law to see whether or not suca seeming trespass
pregnant and predominant, fac, that il Is Sr the the
:es d5ssssd or
mission. the act done must incontineatiy be con-
1smned as unwarrAnted by the Constitution. In
bounden dut1D Of him who Justines the seeming
sS ns S to p n'es G his the
which he relies to suppogt his plea OF jusliiics-
Hon: and unless this can be done. he stands de-
Ienseless before the bar Of the court.
Quotes u Former Case.
In State ex rel. vs.; Stone. 10 no. c. the IS
waived by the then Governor of this state in
! proceeinG instituted IN this court to compel
Ior ,e91ee. r.Gdss hi. sse snsp fee
tract duly made with this State and duly per-
!ormed by such attorney. and for which al APP
pal Assembly; To the petition alleging the
writ the Governor de,nurred generally. which
ition. which held stated q cause Of action,
md that its ailesations stood confessed by the
hst the only question for determination Is
whether the respondent IL amensble to the proc
2. $50 OF this sort 10 other words whether this
ion made by relator." And thercupon we ad-
ierted Is and quoted article aboss set forth.
n. xaas n rs Sny sS.n :
merely ministerial cannot take them out OF the
xecutive department Of the government. And
he performance BY tie Governor Of such da.
Aes. we would in effect and to all iatsnts and