DISSENTING OPINION.
LAMM, J.— I agree that mandamus is not the proper remedy. What we are asked to do amounts in substance, under another name, to an injunction. We have no constitutional power to issue that kind of a writ. What we cannot do in a straight line as the bee flies, we ought not to do in a roundabout way as the fox runs.
I do not agree to the second proposition in the opinion of my brother Gantt. If we had no jurisdiction to issue a writ of injunction (as this practically is) it seems to me what is said on the merits of the case is in the nature of obiter. Therefore,, we should *245say nothing. But if we say anything, then I do not agree to what is said.
That Hannibal has not improved its wharf hitherto is nothing to the purpose. She may have been too poor in the past to do what her growth in wealth and population will enable her to do in the future by way of wharf improvement. So, her neglect of her wharf may have arisen from a decline in river traffic, which decline may be arrested and which traffic may assume intense activity under changed public conditions, of which there are many and auspicious signs. I agree that the city might subject the wharf to new public easements not destructive or inconsistent with Stephen Glascock’s grant (such is the purport of the cases cited by my brother), but that is a mere academic question in the case as I look at it. The vital question here is .that the municipal scheme evidenced by the ordinances sells for a price to a railroad company, engaged in a line of transportation inherently antagonistic to river traffic, at least at Hannibal, the right to build such tracks at such grades as amounts to an utter destruction to that portion of the wharf west of the tracks and to a permanent whittling away of the area of wharfage originally dedicated by shoving the real wharf for all time east of the proposed grade and tracks. If the city can halve the wharf in that way it can quarter it at some future time. The integrity of the wharf as a wharf is thereby destroyed. "We have no right to question the wisdom of Glascock’s grant, i. e, that it is too large, or so located as to apparently stand in the way of the city’s growth and development, as our eyes at this moment view it. The eyes of the next generation may see .it differently. It is a painful lesson in the history of American cities that public rights to wharfs and breathing places have been lost by yielding to-day to the hunger of commercial pressure, only to be too late and ruefully regretted *246in the new light of to-morrow. Our learned commissioner brought to the solution of the problem a serene and seasoned judicial judgment, I delight to honor and follow in this instance.
For these reasons I dissent from the conclusion reached in the second proposition.