The State ex rel. Laclede Gaslight Company v. Murphy
| Decision Date | 02 July 1895 |
| Parties | The State ex rel. Laclede Gaslight Company v. Murphy, Street Commissioner |
| Court | Missouri Supreme Court |
Peremptory writ denied.
Henry Hitchcock, G. A. Finkelnburg and I. H. Lionberger for relator.
(1) The act of March 28, 1868, on its face is not an act reviving or reenacting anything. It is prima facie valid. Railroad v Shambaugh, 106 Mo. 568. The validity of that act has been repeatedly recognized by this court in its former decisions. City v. Gaslight Co., 70 Mo. 69; Gaslight Co. v. City, 86 Mo. 495; State, etc v. Gaslight Co., 102 Mo. 472. (2) The charter of relator did not expire on March 2, 1887, as claimed by respondent. (3) The state having invested relator with the right to light the city of St. Louis, and to make and vend gaslights and other lights, including electric lights, and to that end, to lay down "all pipes, fixtures, or other things properly required," then the city of St. Louis can not, by any ordinances or requirements on its part, annul or destroy those franchises, nor can it impair or abridge them, nor can it impose substantial burdens and conditions upon their exercise, not imposed by the state itself. The Laclede company accepted the charter as offered by the state, and it did so at a time when it was a doubtful venture to enter into competition with an established rival, namely, the St. Louis Gaslight Company. That a large investment of money and property has since been made in good faith on the strength of the Laclede charter is admitted; hence, relator, its stockholders, and all those who have invested in relator's securities, have vested rights which can not be substantially abridged or disturbed by the state itself, much less by the municipal authorities of the city of St. Louis. State ex rel. v. Laclede Gaslight Co., 102 Mo. 472; State ex rel. v. Greer, 78 Mo. 188; Sloan v Railroad, 61 Mo. 24; Scotland Co. v. Railroad, 65 Mo. 123; Weston v. City, 2 Pet. 449; Dartmouth College Case, 4 Wheat. 518; Louisville Gas Co. v. Citizens Gas Co., 115 U.S. 683; Gas Co. v. Louisiana Light Co., 115 U.S. 650. (4) Nor can the ordinance in question be upheld as a mere police regulation, for its provisions reach far beyond the province of such regulations. "Police regulations," says the supreme court of Missouri, adopting the language of Judge Cooley, State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Laclede Gaslight Co., 102 Mo. 472; Gas Co. v. Light Co., 115 U.S. 650; Louisville Gas Co. v. Citizens Gas Co., 115 U.S. 683. (5) The grant of corporate power to use, for any given purpose, a designated substance or material, or "any substance or material that may be used as a substitute for" the one so designated, necessarily implies and includes the right to use such substance or material under whatever conditions, and in whatever manner, may be necessary to accomplish that purpose. A fortiori, such a grant includes the right of making such "substance or material" available for that purpose by subjecting it to conditions appropriate to the particular case, -- whether, for example, by setting fire to illuminating gas, or by applying to such substance or material the expansive power of steam, or the propelling power of gravity, or that mysterious vis viva, called muscular power, created by an effort of the human will, or by transmitting what is called electricity through copper wires. But in either case, the substance or material is one thing, and the conditions under which it is used, or the force which may be applied to it for the given purpose, something entirely distinct therefrom; and the corporate power and right to use the former has nothing in the world to do with the nature of the latter, however interesting to physicists that inquiry might be.
W. C. Marshall for respondent.
(1) The act of March 26, 1868, is in conflict with paragraph 2, section 1, of constitution of 1865 and also with section 25, article 4, of said constitution. The particular claim made by respondent is, that the act of March 26, 1868, is an act reviving, renewing and re-enacting the act of March 2, 1857, and that it violates this provision of the constitution of 1865, in that it refers to "all the rights, privileges and franchises granted to it by the fifth section of the act to which this act is amendatory," which language is absolutely unintelligible without reference to section 5 of the act of 1857, and reading into the act of 1868, the provisions of the act of 1857, which conferred such rights, privileges and franchises; and that it strikes out from the fifth section of the act of 1857, the words "during the continuance of this act," and substitutes therefor the word "forever;" and in that the act of 1868 attempts to repeal section 6 of the act of 1857, by simply employing the following language: "And the sixth section of said act, to which this act is amendatory, is hereby repealed." The act of 1868 can not be construed as an amendment by implication but as an attempt to amend the act of 1857 without publishing in full even the section amended. (2) Relator's charter by the terms of section 9 of the act of 1857 expired on March 2, 1887, and hence relator is not entitled to any of the privileges, rights and franchises claimed for it. (3) Article 2, chapter 15, Revised Ordinances, 1857, of city of St. Louis, as amended by ordinance number 16894, is a valid regulation of the streets of the city and is binding on relator. People ex rel. v. Squire, 145 U.S. 175; S. C., 14 Daly, 154; S. C., 107 N.Y. 593. (4) It is not true, as claimed by relator, that it is a matter of common knowledge that gas and electricity are, because produced by the operation of heat on carbon, therefore the same thing either in cause or effect. (5) On the second day of March, 1857, lighting by electricity was wholly unknown to art, and the legislature by act of said March 2, 1857, did not, and did not intend to, confer upon relator the right to manufacture and vend electricity for lighting purposes.
OPINIONIn Banc.
Mandamus.
On the petition of relator an alternative writ of mandamus was issued by this court, directed to respondent Murphy as street commissioner of the city of St. Louis commanding him to show cause why he should not be required to issue a permit to relator to make an excavation along the east side of Broadway as near the curb as practicable, and extending from Mound street to Olive street in the city of St. Louis, in so far as such excavation should be necessary for the purpose of laying relator's electric wires under ground.
By its petition relator represents that it is a corporation created under an act of the legislature of the state, approved March 2, 1857, and a supplementary and amendatory act approved March 3, 1857, and an amendatory act approved March 26, 1868. These acts are set out in full in the petition. The first, approved March 2, 1857, is entitled "An Act to incorporate 'The Laclede Gaslight Company.'" Laws 1856-7, p. 598.
The first section of the act creates James M. Hughes and seven others a body politic and corporate by the style of "The Laclede Gaslight Company," and by that name they and their successors and assigns are given perpetual succession, etc.
The second section fixed the capital stock at $ 50,000 and authorized it to be increased to $ 2,000,000.
The third section directs that the affairs of the company shall be managed by a board of not less than five directors, etc.
The fourth section authorizes books of subscription for the capital stock to be opened in St. Louis and upon the sum of $ 50,000 being subscribed provides that the company may organize under this charter.
Section 5 provides that said company, its successors and assigns should, within the corporate limits of said city, not embraced within the limits as established by act of 1839, "have and enjoy, during the continuance of this act, the sole and exclusive privilege and right of lighting the same, and of making and vending gas, gaslights, gas fixtures, and of any substance or material that may be now or hereafter used as a substitute therefor; and to that end, may establish and lay down, in said portion of said corporate limits, all pipes, fixtures, or other thing properly required, in order to do the same (the same to be done with as much dispatch and as little inconvenience to the public as possible), and shall also have all other powers necessary to execute and carry out the privileges and powers hereby granted to said company.
Section 6 authorizes the city of St. Louis and the company to make any contracts that they may deem to their mutual advantage in regard to the lighting of any parts of said portion of said corporate limits, or any other thing relating to the business and affairs of said company. It provides that, "the said city shall have the right at the expiration of twenty years from the time of the organization of said company, under this charter, to purchase all the property and effects of the same, paying therefor to the same the value of such property and effects, with twenty per cent added thereto;" and the manner of ascertaining the value by appraisers is provided. Said section has this further provision: "If said city fail so to purchase said property and effects, then this charter shall be, and the same is hereby, renewed and extended for the further...
To continue reading
Request your trial