State Ex Inf. Barker v. Kansas City Gas Company

• Decision Date: 10 February 1914
• Parties: THE STATE ex inf. JOHN T. BARKER, Attorney-General, at the relation and to the use of KANSAS CITY v. KANSAS CITY GAS COMPANY
• Court: Missouri Supreme Court

163 S.W. 854

254 Mo. 515

THE STATE ex inf. JOHN T. BARKER, Attorney-General, at the relation and to the use of KANSAS CITY v. KANSAS CITY GAS COMPANY

Supreme Court of Missouri

February 10, 1914

Preliminary writ quashed.

John T Barker, Attorney-General, A. F. Evans, Willard P. Hall and James W. Garner for relator.

(1) Respondent's assignors accepted the franchise and entered upon the performance of the duties imposed thereby, and respondent's assignors and respondent became obligated to supply all the natural gas required by relator and its inhabitants. This duty is specific, absolute and unconditional and its performance can be compelled by mandamus. Gas Co. v. State ex rel., 135 Ind. 54; Gas Co. v. Anthony, 26 Ind.App. 321; 2 Morawetz on Priv. Corp., sec. 1129; 2 Beach on Priv. Corp., sec. 835; Olmstead v. Aqueduct, 47 N. J. L. 311; Norman v Gas Co., 52 Mich. 499; Gas Co. v. Lowe, 52 W.Va. 662; Hangen v. Light Co., 21 Ore. 423; People v. Railroad, 104 N.Y. 58; Vincent v Railroad, 49 Ill. 33; Loan & T. Co. v. Hemina, 17 Am. L. R. 266; Miller v. Gas Co., 206 Pa. St 254; Commonwealth v. Gas Co., 2 Kulp. 499; State ex rel. v. Street Railroad, 10 Tex. Civ. App. 12; Commission v. Railroad, 77 Misc. 487. From the foregoing authorities the following proposition must be self-evident: If respondent has the right to supply a cubic foot of gas, it is bound in law to supply all the gas relator and its inhabitants require. It cannot legally supply only what it wants to supply, but must supply all that relator and its inhabitants want. The general rule is well established that franchises granted by cities to public service corporations to use their streets for street railways, gas water, telephone and other like purposes, are granted by the cities as agents of the State, and are something more than mere contracts; they have the same effect in law as though granted by the State directly, and can be enforced by mandamus. State ex rel. v. Weatherby, 45 Mo. 17; State ex rel. v. Railroad, 140 Mo. 539; Railroad v. Sioux City, 138 U.S. 107; Wright v. Nagle, 101 U.S. 791; Selectmen v. Railroad, 197 Mass. 270; Railroad v. Sioux City, 78 Iowa 367; Cleveland v. Railroad, 194 U.S. 517; State ex rel. v. Railroad, 72 Wis. 612; Detroit v. Railroad, 56 F. 867; Detroit v. Railroad, 95 Mich. 456; Citizens Ry. Co. v. Belleville, 47 Ill. 388; Grosse Pointe v. Railroad, 130 Mich. 363; Lansing v. Railroad, 109 Mich. 121; People ex rel. v. Railroad, 178 Ill. 594; 27 Am. & Eng. Ency. Law (2 Ed.), 15, 17; Cleveland v. Railroad, 194 U.S. 517; Fath v. Railroad, 105 Mo. 535. (2) The petition for mandamus and the alternative writ are both strictly within the specific and absolute duty of respondent. (3) If we are correct in our position that the franchise imposed upon respondent the obligation to supply relator and its inhabitants with all the gas they want, there is nothing in the public service statute that relieves respondent of that obligation. Manifestly, there is no conflict between the franchise as construed by us and the provisions of the statute. It is not unjust or unreasonable to compel a gas company to furnish an adequate supply of gas to a city and its inhabitants, if physically possible. The question of profit is immaterial. There is nothing in the statute that relieves a gas company of such pre-existing obligation. The statute was not intended to deprive the public of any portion of their existing rights. It was not intended to relieve public service corporations of any of their duties and obligations, but it was intended to regulate such corporations, and to compel them to do their full duty to the public. It is clear that at that time respondent had no power to occupy the streets of relator city without its consent. The Constitution of Missouri contains a provision prohibiting the General Assembly from granting to any street railway company the right to occupy any streets of any city without consent. The same effect exists wherever and whenever a public service corporation must obtain the consent of a city in order to occupy its streets and operate a plant for any kind of public service. Wherever such a condition exists, the courts quite uniformly hold that the public service corporation's power comes from the Legislature, but that the right to exercise such power comes from the city; that the power of the city to give its consent includes the power to refuse this consent, and that this latter power includes the power to give its consent on such terms and conditions as it may see fit to impose, provided that they are reasonable and legal; that the power granted to the corporation by the Legislature and the right to exercise this power given by the city, are both powers coming from the State, of equal dignity and together constitute the corporation's charter. Railroad v. Kirkwood, 159 Mo. 239; Kansas City v. Railroad, 187 Mo. 146; Philadelphia v. Railroad, 3 Grant (Pa.), 403; Railroad v. City, 14 Pittsburg L. J. (N. S.) 259; Philadelphia v. Railroad, 143 Pa. St. 444; Allegheny City v. Railroad, 159 Pa. St. 411; Detroit v. Railroad, 95 Mich. 456; Grosse Pointe v. Railroad, 130 Mich. 363; Township v. Water Co., 53 N.J.Eq. 601; Gray v. Traction Co., 56 N.J.Eq. 463; Gedke v. Railroad, 43 A.D. 514; 27 Am. & Eng. Ency. Law (2 Ed.), 21-22; 3 Elliott on Railways, secs. 1081 and 1096; Nellis on Street Surface Railroads, p. 104; 2 Dillon on Mun. Corp., sec. 706; Detroit v. Railroad Co., 56 F. 867; State ex rel. v. Railroad, 62 Wis. 612; Cleveland v. Railroad, 194 U.S. 534. Where a city, possessed of the power to regulate public service corporations, exercises its power of compulsory regulation, the effect is the same as that of statute; the ordinance is subject to repeal thereafter, either by the city itself, or by the Legislature; there is no element of a contract in it. But it is different where a city possesses the power to grant a franchise, and in the franchise ordinance itself inserts provisions regulating the company and its business. In such a case the ordinance constitutes a contract between the city and the company, and if in a form to bind both parties it suspends the power of both the city and State to regulate the company, contrary to the terms of the contract during the life of the franchise. Thus in the matter of rates: The regulation (compulsory regulation) of the rates of a public service corporation is a prerogative of sovereignty, and cannot be exercised by a city except by authority of the State. It is firmly settled that a city in a franchise granted by it can fix the rates which the company can charge, and thereby suspend the power of the State for a definite reasonable time to reduce those rates by compulsory regulation. St. Louis v. Gas Co., 70 Mo. 69; St. Louis v. Gas Co., 102 Mo. 472; Cleveland v. Railroad, 194 U.S. 517; Cleveland v. Railroad, 201 U.S. 529; Pittsburg v. Waterworks Co., 206 U.S. 496; Water Co. v. Omaha, 147 F. 1; Detroit v. Railroad, 184 U.S. 368. Respondent has a valid franchise, and it legally fixed minimum rates, which cannot be impaired by the city or State. If this is true, maximum rates are also legally fixed, and cannot be impaired by the State. The right of relator to fix maximum rates as a condition of the franchise is unquestioned. The rates thus fixed are as binding as though named in the charter, and are binding upon respondent. Railroad v. Osborn, 193 U.S. 20; Railroad v. Kentucky, 183 U.S. 503. The commission has no power, under the provisions of the statute, to grant franchises to public service corporations, and such corporations must still obtain from the cities and towns of the State the power to occupy their streets. It results from this fact, in view of the settled rules established by the authorities hereinbefore cited, that in granting franchises a city can fix maximum rates and require a minimum amount of service, and that these conditions cannot be changed in any degree by the commission. Blodgett v. Railroad, 192 Mass. 106. Requirements of public service corporations imposed by pre-existing franchises are not affected by the statute. There is absolutely nothing in the statute indicating any intention to impair the force and effect of such obligations. No such intention surely will be inferred. (4) The franchise does not limit respondent's obligation to supply gas to the gas supplied to it by the supply companies mentioned in the franchise. (5) The provisions of the act creating the State Public Service Commission do not furnish such an adequate legal remedy as to bar the remedy by mandamus for the enforcement by public service corporations of their specific legal obligations. (a) The rule is firmly established that if a statute creates a new remedy, and does not make the new remedy exclusive, it does not bar the remedy by mandamus. The act in question here expressly provides that its provisions shall be supplemental and not exclusive. Sec. 139 of the act. In view of this provision of the act, its remedies are supplemental and not exclusive, and do not bar mandamus. 19 Am. & Eng. Ency. of Law (2 Ed.), 749; State ex rel. v. Stearns, 11 Neb. 104; State ex rel. v. Railroad, 29 Neb. 421; People v. Railroad, 74 N.Y. 302. (b) The statute in question creates no legal remedy before the public service commission. The only legal remedy created by the act is one to be prosecuted by the commission in the circuit courts of the State. This remedy is not exclusive, and does not bar the remedy by mandamus in this court. (c) The rule is that the other remedy does not bar the remedy by mandamus unless it is as direct, as speedy and as adequate as the remedy by mandamus. The other remedy does not bar mandamus unless it has the force and effect of a decree for specific performance. What if the commission could make an order...