Relators instituted this proceeding in this court, on August 5, 1909, against the respondents, to prohibit Kinsey, Ií'ufft and Darst, respondents from taking any action as commissioners, appointed by Hon. Geo. H. Williams, one of the judges of the circuit court of the city of St. Louis, to assess compensation to relators for damages sustained by them in a proceeding instituted by the respondent, the St. Louis Electric Terminal Railway Company, for the purpose of condemning a lot of ground owned by relators, situate in the city of St. Louis. Judge Williams was also made a party.
*38A preliminary writ was ordered and made returnable on the first day of the October Term, 1909, of this court. Respondents filed their return thereto, and relators answered, and raised thereby certain questions of fact. Thereupon, by agreement of parties, this court appointed Hon. Moses Sale, of the city of St. Louis, referee to hear the evidence, make a finding of the facts and report the same to this court. In compliance with that order, the referee took the evidence, found the facts and reported them to this court. While the record covers several hundred pages of printed matter, yet the facts, insofar as they are material, are comparatively few, and practically undisputed, which are substantially as follows:
The respondent, the St. Louis Electric Terminal Railway Company, is a corporation organized and incorporated under the laws of this State in pursuance to article 2, chapter 12, Revised Statutes 1899, with its principal office in the city of St. Louis. The charter of said company authorized and empowered it to construct, maintain and operate a standard gauge railroad (as stated in the language of counsel for respondents) “for the conveyance of persons and property in the State of Missouri from a point on or near the west bank of the Mississippi river, in the city of St. Louis, running thence in a general westerly, thence southerly, thence easterly and thence southerly direction, to a point at or near the west bank of the Mississippi river, with either a single or double track, with spurs, switches, side tracks, branch lines, terminal facilities and connections from points on the aforesaid route to and connecting said line with the various bridges, bridge terminals, ferries, wharves, ways, landings, railroad yards, depots, manufacturing and shipping establishments which now are or may hereafter be constructed or built, providing complete and continuous terminal facilities, connections and accommodations within the city of St. Louis for said railway; and said railway was designed *39and intended for use in connection with the bridge of the St. Lonis Electric Bridge Company over the Mississippi river which is now nearing completion, and said road and said bridge are intended to be used in connection with and as a part of the following named internrban railroad systems in Illinois, vis.: The Illinois Central Traction Company, the St. Louis & Springfield Railway Company, the St. Louis & Northeastern Railway Company and the Danville & Edwardsville Terminal Railroad Company, corporations organized under the laws of the State of Illinois, in the State of Illinois, and which said Illinois corporations have constructed a system of interurban electric railways in Illinois several hundred miles in length, extending from a point of connection with the St. Louis electric bridge in the town of Venice, Illinois, on the eastern bank of the Mississippi river opposite St. Louis, and connecting various towns and cities in Illinois with each other, and which said system of interurban electric railways in Illinois in connection with the St. Louis Electric Terminal Railway in Missouri is designed and intended to connect the city of St. Louis by means of said interurban electric railway companies and said bridge across the Mississippi river with different and distant towns and cities in Illinois and other States. ’ ’
By an ordinance duly enacted and approved April 6, 1907, the city of St. Louis authorized the respondent railway company to construct, operate and maintain a single or double-track electric railway for- the carriage of passengers, mail and express matter, over, along and across certain designated-streets in the city of St. Louis, prescribing the conditions on which said railway shall be operated and prescribing penalties for the violation thereof. The first section thereof reads as follows:
“Section One. Permission and authority are hereby given and granted to the St. Louis Electric Terminal Railway Company, a corporation organized under the *40laws of the State of Missouri, its successors and assigns, to lay down, construct, operate and maintain a single or double-track street railway, as hereinafter provided, on, over and along the streets designated in section two of this ordinance; and on, over and across all railway tracks, streets, alleys and other highways, bridges and city blocks and other public places along the route hereinafter mentioned-; together with all appurtenances and all necessary conduits, wires and poles for the purpose of connecting its power houses with its lines of railway and transmitting its power to points of consumption. For the sole purpose of connecting any of its own stations, depots, yards, car bams or power houses, situated in city blocks immediately adjoining the streets along the route described in section two of this ordinance with its main line of track, said railway company is hereby authorized to construct, operate and maintain such switches and turnouts as may be necessary for such purpose. ”
By section two of said ordinance, the route of said railway is set forth, as beginning at Farrar and Ninth streets and running on Branch, Twelfth, Ninth, Eleventh, Palm and Twelfth streets to Lucas avenue, and on Linden, Thirteenth and Gay streets, and also over and across all streets and alleys from Ninth street'to the Mississippi river, between Farrar and Mallinckrodt streets.
By section three, it was ordained, among other things, that: "The rights and privileges hereby granted to the St. Louis Electric Terminal Railway Company are for the purpose of establishing and maintaining a street railroad in the city of St. Louis in connection with and as a part of the following named interurban systems in Illinois: The Illinois Central Traction Company, the St. Louis and Springfield Railway Company, the St. Louis and Northeastern Railway Company and the Danville and Eidwardsville Terminal Railroad, corporations organized under the laws of the *41State of Illinois, in the State of Illinois, and which have constructed a system of interurban railways in said State; and it is hereby stipulated and agreed by the said St. Louis Electric Terminal Railway Company,, for itself, its successors and assigns, that within two years after the date of the passage and approval of this ordinance, said street railway shall be connected and operated in connection with the said interurban companies.”
Section 4 provides: “The St. Louis Electric Terminal Railroad Company may operate its road by electricity or by any other power authorized by ordinance . . . and all its stations or- depots shall be located on property leased or owned by said railway company. No trailer shall be operated in connection with any passenger or express cars in said city, and all trains for the carriage of either passengers or express shall consist of a single car.”
Section 5 provides that all necessary poles to carry electric wires may be erected and placed “along the curbs of all streets on, over, across or along which said railroad company may be operated under this ordinance.” The St. Louis Electric Terminal Company may make needful and convenient changes in construction of needful and convenient curves, etc., in any of the streets or railways in, along or over or across which it may be constructed or operated with permission of the Board of Public Improvements.
Section 7 requires the acceptance of the St. Louis Electric Terminal Railway Company to be filed, and bond given for the observance of this ordinance and all general ordinances in force, or that may be passed with reference to street railways, and to pay damages to adjoining property-owners, and save the city harmless from damages because of the “construction, operation or maintenance of said street railway. ’ ’
By section 10 the St. Louis Electric Terminal Railway Company agrees to comply with all the general *42ordinances and charter provisions of the city of St. Lonis affecting the speed and other operating requirements of street railways then in force or hereafter to be enacted and applicable to its line of road or any part thereof.
And sections thirteen and fourteen read as follows :
“Section Thirteen. The rights and privileges herein conferred upon said St. Louis Electric Terminal Railway Company are granted on the express condition that should the St. Louis Electric Bridge Company fail to build a bridge across the Mississippi river from a point near Venice, in the State of Illinois, to a point in St. Louis, connecting said railway with the lines of railway of the Illinois Traction System within five years from the date of the passage and approval of this ordinance, then the rights and privileges herein granted shall cease and determine; provided, however, that should the St. Louis Electric Bridge Company be prevented or delayed in building said bridge within said time, either by the act of God, labor strikes or any injunctions or restraining order of any court, then the time shall be extended for a period equivalent to such delay.
“Section Fourteen. It is understood and agreed that the St. Louis Electric Bridge Company shall file its written acceptance of this ordinance, and will at the time of such acceptance enter into and give to the city of St. Louis a bond in the penal sum of one hundred thousand dollars, to be approved by the mayor and council, conditioned that the St. Louis Electric Bridge Company shall build and construct a bridge across the Mississippi river as authorized by the Act of Congress approved on the fifteenth day of February, nineteen hundred and seven, and shall complete said bridge within the time mentioned in section Thirteen of this ordinance, conditioned also that should the St. Louis Electric Bridge Company build said bridge within the *43time as herein specified, then said bond shall be null and void; otherwise, to remain in full force and effect. ”
In May, 1907, respondent railway company undertook to agree with relators upon the price to be paid them for the lot of ground in controversy, but was unsuccessful; and, on June 22, 1909, in pursuance to its charter powers, said company filed a suit in the circuit court of the city of St. Louis, which had for its purpose the condemnation of this land.
The relators filed an amended answer, in which they denied some of the allegations in the petition, but did not deny the filing of the map of the route, that the railroad would lie Avhollv within the city of St. Louis, or the ownership of the lot, or that plaintiff offered to purchase relators’ lot and was refused, or that petitioners’ real intention was to construct and operate a railroad under the general law for the carriage of freight and passengers within the city of St. Louis, or to act as a terminal line; and for further answer charged that the only power or authority of respondent Railway Company to construct or operate a railroad in the city of St. Louis of any kind was that conferred by the ordinance, approved April 6, 1907, already noticed, and that it merely authorized the construction, maintenance and operation of a street railroad by respondent railway company under the powers conferred by article 3, chapter 12, of the Revised Statutes of Missouri, 1899, concerning street railways, and had no power whatever to exercise the right of eminent domain or to take the lot of relators under any power it possesses, nor has any other street railway company. The cause came on for hearing on January 20,1909, before Judge Gr. H. Wiliams, in vacation, and respondent railway company offered in evidence its articles of association and the said ordinance of the city of St. Louis, approved April 6,1907, already mentioned.
R. D. Smith, on behalf of respondent company, testified that he was the manager and representative *44of petitioner in Missouri. He testified to the existence of the Illinois system and named the four electric roads that composed it, and their location at Venice, opposite St. Louis; that the St. Louis Electric Bridge Company has a bridge under construction to connect respondent railroad with the'Illinois system, and has a large landed property in St. Louis, near its terminus, and that the tracks of respondent railway company have been laid on a large number of streets in the city of St. Louis; that the bridge company, the respondent railway company’s railroad, are subsidiary companies of the Illinois system, and they were carrying passengers, freight, baggage and express matter, and arranged for freight and all sorts of freight and express matter, and have regular ears for long-distance travel. And that the property sought to he condemned here is to be used to erect depots and places to receive freight and passengers and express in the city of St. Louis.
On August 22, 1909, the court rendered an interlocutory decree of condemnation and appointed respondents Kinsey, Hufft and Darst, commissioners, as before stated, to assess compensation to relator, Rosalie Greffet, for her lot. In the decree the court states that it finds and decides that respondent railway company was organized under article 2, chapter 12, Revised Statutes 1899, “and as such corporation was organized for the purpose of being used and operated in connection with and as a part of said Illinois system . . . and that the petitioner is authorized to and is constructing it for the purpose of transporting freight and passengers in connection with said Hlinois system and the bridge, and the condemnation of relators’ lot is necessary for the public uses described in the petition.” He also adjudged that respondent railway company is entitled to take and hold the property for the public use so specified in connection with its business as a public carrier in the transportation of freight and passengers on its said railroad and to furnish room for *45. . . freight yards and terminal facilities upon making compensation.
The commissioners qualified and proceeded to act as such until August 6, 1909, when they were stopped from further action by the preliminary writ of prohibition issued from this court on August 5,1909.
Upon this state of the record; counsel for respondents moves this court to quash the preliminary writ of prohibition issued, and to dismiss relators’ petition filed herein.
I. If we correctly understand the position of counsellor relators, it is- this: that the respondent railway company is a general railroad corporation organized, incorporated and existing under and by virtue of article 2, of chapter 12, Revised Statutes 1899; and, as such, has no authority to construct and maintain its railroad tracks in, upon and across the streets of the city of St. Louis, or to operate its motors and cars therein, without express authority from the city to do so. And relators insist that the city has not authorized the respondent company to so construct its tracks and to so operate its cars. Consequently, they contend that the respondent company has no authority to construct, maintain or operate a railroad over, along or across the streets of the city of St. Louis; or to condemn land in said city for its use, nor had Judge Williams jurisdiction to do so.
It seems to us that counsel for relators are led into error by attaching undue importance, at this time, to the ordinance of the city, before mentioned, approved April 6, 1907.
The respondent company was organized under article 2 of chapter 12, Eevised Statutes 1899, and derives its authority from the State of Missouri to condemn lands for railroad purposes, and not from the city of St. Louis, or from any other municipality into which it may desire to enter. [Metropolitan Ry. Co. v. Chicago West Division Ry. Co., 87 Ill. 317.]
*46There is no law requiring a railroad company to first procure the consent of a municipality to the use of its streets as a prerequisite to its legal right to condemn private property for railroad purposes. [California Southern Ry. Co. v. Kimball, 61 Cal. 90.]
Suppose, for instance, the ordinance approved April 6, 1907, had never been enacted, could it then be seriously contended that the respondent company would have no power or authority to condemn relators ’ property, just as it is now undertaking to do? We think not, for the reason that the consent of the city might he obtained after condemnation as well as before. [Metropolitan Ry. Co. v. Chicago West Div. Ry. Co., supra.]
While it is true, the respondent cannot use the streets of the city without it is duly authorized to do so; and it might for that reason he unable to reach, use and occupy the property so condemned by it for railroad purposes, however, that is a matter which does not concern relators, for the reason that their land cannot be taken until paid for, and then it can be used for no other purpose than for the purposes for which it was condemned. The sole purpose of a condemnation proceeding is to acquire private property for public use; and the plaintiff therein does not thereby undertake to acquire the right to use the streets of a city or to use and occupy the public roads and highways in the country. The Supreme' Courts of California and Illinois have both expressly held, that the question as to whether or not the consent of the city to use the streets thereof has been obtained is wholly immaterial in a proceeding to condemn private property, situate therein, for the public use of a legally organized railroad company. [California Southern Ry. Co. v. Kimball, 61 Cal. 90; Metropolitan Ry. Co. v. Chicago West Div. Ry. Co., 87 Ill. 317.]
We are, therefore, of the opinion that said position of counsel for relators is not well founded.
*47EE. Counsel for relators, more by way of insinuation than by direct assertion, contend tbat tbe respondent company has no power or authority to condemn private property for railroad purposes, under article 2, chapter 12, Revised Statutes 1899, for the reason that it is not a railroad company within the meaning of said article, but is an interurban electric railroad company, which is not embraced within the provisions of that article.
Without stopping to decide that proposition, it is sufficient to state that whatever doubt existed at one time as to that mooted question has been set at rest by an act of the Legislature, approved March 19, 1907. By that act article 2 of chapter 12, Revised Statutes 1899, entitled “Railroads,” was amended (Laws 1907, p. 174) by adding thereto a new section, numbered 1174a, which reads as follows:
“That any corporation now existing, or that may hereafter be incorporated, for the purpose of constructing, building, owning, operating and maintaining an interurban electric railroad, shall have and possess the same rights and be subject to the same liabilities and shall be governed by the same powers, laws, limitations, restrictions and proceedings now governing railroads in article 2 of chapter 12 of the Revised Statutes of Missouri of 1899, for the condemnation of lands for right of way, and the fencing th ereof. ’ ’
This section is in pari materia with articles 2 and 7 of chapter 12, Revised* Statutes 1899, containing the law of eminent domain for steam railroads, and in express terms grants to interurban railroad companies all the powers possessed by steam railroad companies to condemn property for their use. This rule is announced in the following cases: Malott v. Railroad, 108 Fed. 313; Gaston v. Lamkin, 115 Mo. l. c. 33; State ex rel. v. Dearing, 173 Mo. l. c. 504; Sales v. *48Barber et al., 166 Mo. l. c. 671; State ex rel. v. Patterson, 207 Mo. 129.
We, therefore, ’rule this contention against relators.
III. As before stated, counsel for relators lay much stress upon the fact that the record discloses no authority outside of the ordinance before mentioned, approved April 6, 1907, authorizing the respondent company to construct its tracks upon, along and across the streets of the city, or to operate its -cars thereon; and insist that said ordinance, the one under which said respondent proposed to operate, does not authorize it to operate an interurban railroad in said city, which it proposes to do, but only a street railroad, which can only be organized and operated under article 3 of chapter 12, Revised Statutes 1899. In other words, counsel for relators contend that the record shows that the respondent company is organized .as an interurban railroad company under article 2 of chapter 12, Revised Statutes 1899, as amended by said Act of 1907; and notwithstanding that fact, it proposes to operate such road within the limits of the city of St. Louis under said ordinance, yet in violation of its express provisions, by transporting freight in freight trains to be operated thereon, which is not authorized lo be done by said ordinance.
Counsel for respondents concedes that the respondent company is an interurban railroad company and not a street railroad company, and claims that it has the right to operate freight and passenger trains over the same under the ordinance aforesaid.
In answer to that contention, it is sufficient to say -that it will be ample time to determine that question when the respondent company undertakes to do so. If it should attempt to run freight trains and transport freight over said road in violation of said ordi-.nance, as is contended for by counsel for relators, then *49there is ample authority to prevent such usurpation of power. That question, however, is not and cannot be considered or adjudged in this case, and we decline to consider the same, much less undertake to pass upon it.
The court expressly held in the case of Kansas & Texas Coal Ry. v. Northwestern Coal & Mining Co., 161 Mo. 288, that the power of a regularly organized and chartered railroad company chartered for “the purpose of constructing and operating a railroad for public use in the conveyance of persons or property” to condemn land for a right of way for a railroad track cannot be drawn in question in a condemnation proceeding.
The same principle is announced in the following cases: National Docks Co. v. Railroad, 32 N. J. Eq. 755-760; Ulmer v. Lime Rock Ry. Co., 66 L. R. A. l. c. 395; Sewall’s Falls Bridge v. Fisk, 23 N. H. 171; Metropolitan Ry. Co. v. Chicago West Div. Ry. Co., supra.
There are many other questions presented and ably discussed by counsel for both parties, but the proper disposition of none of them would change the results before stated, and for that reason we deem it unnecessary to prolong this opinion by deciding them.
We are, therefore, of the opinion that the preliminary writ of prohibition should be quashed and the permanent writ be denied, and that the petition filed herein should be dismissed. It is so ordered.
All concur except Gantt, J., who dissents.