Sidewalks. Versteeg v. Railroad. That record indicates that plaintiff is not necessarily injured to the extent he pretends to be. It is a well known fact, of which we take judicial notice, that there is not so much necessity for sidewalks, particularly wide sidewalks, in streets where, as in this case, the abutting property is used for manufacturing and storage purposes as in localities devoted to residence or retail purposes. The width of sidewalks is a matter regulated by city ordinance. and there is no sound reason for supposing that the plaintiff cannot secure a reduction in the width or a vacation of the sidewalks in front of his property by applying to the legislative department of St. Louis for that purpose. The fact that he can do so is made manifest by the evidence that the sidewalks have been abolished on both sides of Collins street at a point further north on that street where plaintiff owns other property and in front of which he does not object to the operation of defendant's trains. By securing the vacation of onehalf, or four feet of the sidewalks in front of his property, and the removal of the telegraph poles to the curb of the sidewalks, as thus changed or modified, plaintiff will have sufficient room to drive freight wagons in front of his property while defendant is operating its trains, and yet leave a fairly good sidewalk for footmen to reach his property. Equity: After a careful inspection of the whole record, we think it very probable that the plaintiff kept quiet and made no objection to the running of trains in front of his property while defendant was expending $700,000 in constructing its freight depot, believing that he could afterwards by this extraordinary action, compel defendant to purchase his property at a price in excess of its real value. We think that defendant in a similar spirit of unfairness, encroached upon the rights of plaintiff by Versteeg v. Railroad. constructing a sidetrack or "turn-out" within a few feet of one of plaintiff's buildings, and willfully used its main track in front of plaintiff's property for switching purposes, probably intending thereby to annoy plaintiff and force him to sell his property to defendant below its value. The intent we have thus ascribed to the parties, is not fully proven, but it is clearly inferable from the evidence; consequently the equitable pleas of both parties appeal to us somewhat feebly. New and Uses. We find that substantial justice will be administered by denying plaintiff's prayer for an injunction restraining defendant from operating its through trains on Collins street in front of plaintiff's property; without prejudice, however, to plaintiff to institute and maintain against defendant an action for such damages as he has sustained, if any, by the operation of such trains, and by the switching of cars in front of his property. The plaintiff is entitled to an injunction restraining defendant from constructing or operating a second track or "turn-out" in front of his property and from making up and breaking up trains in front of plaintiff's property and from allowing its trains or cars to remain or stand in front of or so near plaintiff's property as to interfere with the passage of wagons used by plaintiff and his tenants or employees over and along Collins street. Mr. High in the fourth edition of his work on Injunctions, vol. 1, sec. 630, says: "Where a railway company has constructed its tracks over complainants' premises without authority, and is about to construct another track over the same premises, also without authority, and without having made compensation therefor to the owner, an injunction will be granted to restrain the construction of the second track. But in such case, the first track being Versteeg v. Railroad. already completed and the cars running thereon, an injunction will not be granted to prevent the cars from running when an action of ejectment and for mesne profits will afford ample relief." The judgment of the circuit court is reversed, and that court is directed to enter a new judgment in conformity with our views as herein expressed. The plaintiff having been granted part of the relief prayed for in his petition, the costs of this action are taxed against defendant. It is so ordered. IN BANC. PER CURIAM.-This case coming into Banc, the foregoing opinion of BROWN, J., filed in Division Number Two, is adopted as the opinion of the court. All concur except that Lamm, C. J., and Faris, Bond and Graves, JJ., disapprove that part of the majority opinion which criticises the Dartmouth College case; Lamm, C. J., filing separate opinion. SEPARATE OPINION. Per Lamm, C. J., Concurring In Result But Not Concurring In The Criticism Of The Dartmouth College Case. LAMM, C. J.-My vote is to concur in the result reached in the opinion of my learned brother BROWNthis, for reasons stated by him and for others appearing to me in this record. But I do not concur in his criticism of the Dartmouth College case. If we have outgrown the doctrines of that great case and they are now to be judicially repudiated by this court, as applicable to matters within its jurisdiction, it should only be done in some case in which it is necessary to call them in question, and then only 250 Mo.-6 State v. Baskowitz. on full consideration and on reasons vouching for themselves as conclusive. It is a landmark of the law, often and often relied on by us, and it ought not to be either doubted or removed except on a new and complete survey. [Duet. XXVII: 17.] THE STATE v. BASKOWITZ, Appellant. In Banc, May 10, 1913. 1. POLICE REGULATION: In What it Rests. The police power rests in the conservation of the public health, safety and welfare, and their corollaries; and unless a law conserves one of those three things, it cannot be upheld as an exercise of the police power. A statute which makes it "unlawful for any partnership, corporation, dealer, manufacturer, bottler, junkdealer, dealer in second-hand bottles, ... to trade or traffic in, buy or sell any box, tray, bottle, jug or siphon" used by a manufacturer of and dealer in mineral water, soda water or other beverage, upon which the name of the owner or manufacturer is stamped or cut or etched, and which mark has been registered, cannot be upheld as a police regulation. 2. BOTTLING ACT: Class Legislation: Unconstitutional. Sections 4829, 4830 and 4831, Revised Statutes 1909, do not affect all persons similarly situated, and are therefore class legislation and unconstitutional. They discriminate between bottlers engaged in the soda and mineral water business and those engaged in the business of bottling ale, porter, lager beer, milk and patent medicines; and make it unlawful to buy or sell registered soda and mineral water bottles on which the name of the manufacturer has been stamped, etched or cut, and relieve the dealers in all other bottles. They discriminate between bottlers, manufacturers, dealers, partnerships and corporations, and private citizens; for any partnership, even a firm of attorneys, and any corporation, even a railroad company, having such a registered bottle in possession, would be committing a misdemeanor, while a private individual, or professional man without a partner, would be guiltless. They make the sale or bare possession of a registered bottle, by a dealer in or bottler of soda water, a criminal offense, while any other dealer, or a dealer in any 3. State v. Baskowitz. other commodity, could have in his possession such registered bottle without being guilty of any offense. They do not affect all bottlers alike; they do not affect all users of bottles alike. They were enacted for the sole and exclusive benefit and protection of manufacturers of glass bottles used in the soda and mineral water business, and of dealers therein and bottlers thereof, and they exclude from their benefits and protection all other persons and citizens who may use or desire to use, in the conduct of their business, bottles or other vessels with their names engraved, cut or etched therein, such as dairymen, druggists, brewers of ale, lager beer, porter, and every other dealer in any commodity whose nature requires it to be furnished for delivery in a container. Held, by WOODSON, J., dissenting, with whom WALKER, J., concurs, that the said statutes are not an arbitrary classification, because: first, soda water and mineral water, being impregnated with highly effervescent and expansive gasses, are placed in extra strong bottles, which are very expensive, costing more than the contents, and this justifies the statutes which attempt to protect the owners of the bottles in the return of their bottles after a delivery to dealers, while the dairyman or druggist does not stamp his name in the bottles, or desire their return if he does; second, soda and mineral water bottles are delivered to many places, and will be easily lost, unless the owner is protected by such a statute, while the bottles of the brewers of beer and ale are delivered to saloons, and can easily be collected; and, third, malt and spirituous liquors are intoxicating, while soda and mineral waters are not, and those facts may have induced the Legislature to furnish the protection of the statute to one and deny it to the other, and if so they furnish sufficient ground for holding the distinction was not arbitrary. Special Law: General Law Applicable. A general law relating to the registering of bottles and other receptacles with the maker's name stamped, cut or blown thereon, applicable to all beverages, can be enacted, without discriminating against or on behalf of any dealer, and hence a special law applicable to manufacturers of bottles used to contain soda or mineral water is unconstitutional. [WOODSON and WALKER, JJ., dissenting.] Appeal from St. Louis Court of Criminal Correction.Hon. Calvin N. Miller, Judge. REVERSED. |