DISSENTING OPINION.
GANTT, J.— I cannot concur in the views of my brethren. Conceding that the circuit court is a court of general jurisdiction and under the general statutes has jurisdiction of proceedings to condemn private *50property for public use, and conceding moreover that a railroad is for public use and that the St. Louis Electrical Railway Company is organized under the steam railway law with authority to transx>ort persons and property, still inasmuch as the property of relator is situated in the city of St. Louis and the municipal assembly of said city has only granted said company the right to operate “a street railway” in said city, and inasmuch as the Constitution of this State (1875), section 20 of article 12, provides: “No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchises so granted shall not be transferred without similar assent first obtained,” and inasmuch as defendant applied for and obtained consent only to lay down, construct, operate and maintain a street railway, I am of the oxfinion it is now estopped from repudiating the only authority it has for occupying the streets of St. Louis, and that for the purposes of this condemnation proceedings it must be held and adjudged to be a street railway only and cannot fall back on its charter a¿ a standard steam railroad as authority to condemn.
In St. Louis Railroad Company v. South St. Louis Railroad Co., 72 Mo. l. c. 67, 68, it was ruled that “the entire grant of legislative power is subject to the condition” prescribed in article 12, section 20, of the Constitution, and the charter of St. Louis adopted in 1876 under express constitutional grant is in perfect harmony with this constitutional grant, and it provides that the Municipal Assembly shall have power by ordinance to determine all questions with reference to street railroads within said city, involving the right to construct street railways, granting the right of way and controlling them after completion. This *51constitutional andi charter power was hut the confirmation of an act of the General Assembly of Missouri amending the charter in 1856, giving the same power and control over street railways. While this court in State ex inf. v. Lindell Ry. Co., 151 Mo. 162, reaffirmed this right, it overruled the case in 72 Mo. 67 insofar that this case held that the Act of. 1860 in regard to parallel lines was not repealed by the subsequent Act of 1866 and by the Constitution. The question was before this court in St. Louis and Meramec Rd. Co. v. Kirkwood, 159 Mo. 239. In that case a railroad compauy organized under the general railroad act, just as the St. Louis Electric Terminal Railway Company in this case is, obtained from the city council of Kirkwood a franchise to operate its cars in the streets of that city; to construct and operate an electric railroad for the transportation of passengers on, along, and upon certain streets. Thereafter it proceeded to carry freight and to use the streets for loading and unloading express matter, and the city by ordinance forbade the use of its streets for such purposes, and the railroad sought to enjoin the city from enforcing said ordinance, contending that while it accepted the same and had no right to construct and maintain its railroad on said streets without first acquiring the consent of the authorities, it could not bind itself to exercise only a part of the powers committed to it by the State, or make a valid contract not to exercise part of the franchise granted to it for the public use, and the city could not impose the condition that it should exercise only a portion of its franchise powers and the ordinance was void, hut this court unanimously said that the veto power given by the Constitution and section 2543, Revised Statutes 1889 (now section 1035, R. S. 1899, amended, but not in this regard), was not limited to a mere “yes” or “no,” but the city can impose such conditions upon its consent as it sees fit. [Railroad v. Railroad, 148 Mo. 637; *52Railroad v. Railroad, 148 Mo. 665; Railroad v. Railroad, 105 Mo. 571.] In that case it was further said, “It does not admit of doubt, in our opinion, that the city of Kirkwood could have altogether denied plaintiff the right to operate its road in said city, and it would have been utterly powerless to have forced its way into said city without its consent. ... We think the facts in evidence constituted plaintiff, so far as the city of Kirkwood is concerned, a street railway with the right to transport passengers only, and that, in operating mail and express cars, it exceeded the grant of the city,” and thus made itself amenable to the ordinance. In this case the St. Louis Terminal Electric Railway Company tendered evidence that it was a part of a system of interurban railways. With that I think we are not concerned. The franchise granted is to a railway wholly within the city of St. Louis. It gave authority to construct or operate a street railway, not an interurban system. A. street railway is defined in Hannah v. Metropolitan Street Ry. Co., 81 Mo. App. 82, in these words: “As the name indicates, the primary meaning of street railway, or street railroad, is one constructed and operated on and along the streets of a city or town for the carriage of persons from one point to another in such city or town or to and from its suburbs. It is peculiarly an institution for the accommodation of people in cities and towns; its tracks are ordinarily laid to conform to street grades; its cars run at short intervals, stopping at street crossings to take on and discharge passengers, and in its business is confined to the carriage of passengers and not freight." The difference between a railroad and a street railroad in both a technical and popular sense is marked. [Railroad v. Johnson, 2 Wash. 112; Railroad v. Railroad, 63 Ky. 175.] In a legal sense a street railway is not included within the statute authorizing the condemnation of lands for railway purposes. [Thomson-Houston *53Electric Co. v. Simon, 10 L. R. A. 251; Heilman v. Railroad, 180 Pa. St. 627.] With profound respect for the opinion of my brethren, I think the St. Louis Electric Terminal Railway Company should and must be regarded as a street railway by the very terms of the franchise it sought and obtained from the city; that it was unanimously so ruled in Ry. Co. v. Kirkwood, 159 Mo. 239. It was so held in Sams v. St. Louis & M. R. Rd. Co., 174 Mo. 53. In my opinion the circuit court has no jurisdiction to condemn the lot of relators; that this goes to the jurisdiction of the subject-matter of the suit, and is not waived by failure to demur or raise the want of jurisdiction by answer. [Railroad v. Calkins, 90 Mo. l. c. 545; Railroad v. Baker, 102 Mo. 553; 31 Cyc. 860; Henry v. Railroad, 121 Ill. 264; State ex rel. v. Oliver, 163 Mo. 679.]
In support of the majority opinion authority for this condemnation is deduced from section 1174a, which provides “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, Revised Statutes 1899, for the condemnation of lands for right of way, and the fencing thereof." That being in pari materia with articles 2 and 7 of chapter 12, Revised Statutes 1899, it conferred upon interurban railroads all the power granted to steam railroads to condemn property, but as I view it, this statute does not and cannot apply to the St. Louis Electric Terminal Railway Company because said company by the very terms of its charter lies wholly within the city of St. Louis and hence is not interurban, and its grant must be construed strictly in favor of the public, and section 1035; Revised *54Statutes 1899, which is a part of said company’s charter as much as if it had been written therein, provides that “nothing herein contained . . . shall be construed to authorize the construction of any railroad not already located in, upon, or across any street in a city or road of any county, without the assent of the corporate authorities of said city, or the county court of such county.” Thus the inhibition applies to steam and electric railway companies as well as to street railways eo nomine, and the. city of St. Louis had the power to refuse to permit a steam or electric railway to occupy or cross its streets except on such conditions as it saw fit to impose, and it gave this company the right to use its streets upon the express condition that it should operate only a street railway company therein and thereon. Having obtained this right to construct and operate a street railway only, it now seeks to exercise the right of eminent domain as a steam or interurban railroad, and appropriate relators’ lots. The right of eminent domain is the exercise of sovereign power and the company seeking to enforce such power should be able to put its finger upon the authority granted it to do so.
It is said in the majority opinion that the relators cannot question the failure to obtain consent of the city to authorize the company to construct and operate an interurban railway on its streets and that it is wholly immaterial whether or not the consent of the city has been obtained in a proceeding to condemn private property for the reason that the State has conferred that authority in the charter of .the company. I respectfully dissent from this view, in view of the express constitutional provision in section 20 of article 12 and section 1035, Revised Statutes 1899, which requires the consent of the city to the construction and operation of street railways on its streets or any other railroad thereon or across the same.
*55In the matter of the application of the Rochester Electric Ry. Co. to acquire lands of one Wilkins, 123 N. Y. 351, the condemnation was opposed on the ground that the assent of the local authorities of the town of G-reece had not been obtained. It appears from the report of that case that the turnpike company had granted the right to the electric company to construct a railroad upon its right of way, and the company insisted that this was the' only consent that was necessary. The New York statutes required that before such railroad company could construct and operate its railroads in cities, towns and villages, it was necessary to obtain the consent in writing of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having control of, that portion of a street or highway upon which it was proposed to construct and operate such railroads.The court held that the local authorities in the meaning of that statement meant the officers of that city, town or village whose duties and powers relate to the supervision and maintenance of streets and highways and that the turnpike corporation was not a local authority within the meaning of the act. Speaking for that court Judge Gray said: “The next phase of the question, which presents itself then, is, if the consent of the highway commissioners, as the local authorities having control over the highway in question, has not been obtained, is that consent an essential prerequisite to the right to maintain this proceeding? That would seem to be the inevitable conclusion, based upon the language of the statute, in its plain reading, and it is, I think, fortified by reasoning and by authority. The authority conferred by the Act of 1884 is to construct and operate the railroad through the street or highway, and to acquire private property for that purpose, provided that the consents of the property-owners and the local authorities be first obtained. The language imports a condition to the right of the company to pro*56ceed, after its organization, in the work of construction. The consents which are to be first obtained are to the construction and operation of any railroad at all, as proposed. Its condition, after the work of formal organization is complete, is still an incomplete or imperfect one. The Legislature, in the general law of 1884, followed the constitutional requirements as to the consents to be obtained from property-owners and from the local authorities. The design of the people, as manifested in the Constitution and again in this act, was to guard the public generally against these invasions of streets and highways by railways under authority of legislative'grants, and the protection was provided for by the imposition of the conditions, in every case of a projected street railroad, that the project should be approved by the local authorities and by a certain proportion of property-owners; with the permission, if the requisite consents of the property-owners were refused, to apply to the court, whose determination might stand as a substitute for such consents. Sufficient vitality and strength to go on with and to construct a railroad do not exist in the newly-formed corporation, until infused by the consents of the local authorities and property-owners. Until that moment, when the company can assert that the statutory conditions of its right to be and to do are fulfilled, it cannot strictly, nor justly, be said that it is in a position legally to. deprive the landowner of his property. By organization under the act it has become a corporation, but with no authority as yet to construct and operate a railroad upon a street or highway. Its right to the exercise of that franchise is still inchoate and does not become a vested right, until after the consents specified by the statute have been obtained. It may be a corporation, but it has no power to take a step in the direction of occupying the street or highway, because it is, in effect, inhibited by the condition of its *57charter from doing so, while the consents to the appropriation of the street or highway to railroad uses are lacking. [Wis. Water Co. v. Winans, 85 Wis. 26; Railroad v. Railroad, 179 Pa. St. 584.]"
In my opinion, this is a clear and proper interpretation of the Constitution and the statutory law of this State on this subject. Without the consent of the city of St. Louis to the construction of the St. Louis Electric Terminal Railway as a steam railway or as an interurban railway, it has no power to construct and operate anything but a street railway, as the ordinance conferred that right and no other; and as a street railway, in my opinion, it has no authority to exercise the power of eminent domain. As said by the Supreme Court of Pennsylvania in Heilman v. Ry. Co., 180 Pa. St. 627, “Street railway companies are not endowed with the right of eminent domain, because they do not need it.- They are modern local conveniences, the location and construction of which are subject to the will of the public they are intended to serve. This will is expressed through the local authorities. Such companies cannot force themselves into neighborhoods where they are not wanted. ’ ’ And the same doctrine was announced in Thomson-Houston Electric Company v. Simon, 20 Ore. 60.
For these reasons I think the writ of prohibition should be made absolute.
Burgess and Fox, JJ., concur in my views.