Taylor v. Dimmitt

• Citation: 78 S.W.2d 841,336 Mo. 330
• Parties: A. S. Taylor, V. E. Durham and John H. Wright v. Frank Dimmitt, Mayor of the City of Shelbina; Edwin Gillispie, John C. Jewett, C. Ed Adams and Leland P. Presler, Aldermen of the City of Shelbina, Appellants
• Decision Date: 07 January 1935
• Court: United States State Supreme Court of Missouri

78 S.W.2d 841

336 Mo. 330

A. S. Taylor, V. E. Durham and John H. Wright v. Frank Dimmitt, Mayor of the City of Shelbina; Edwin Gillispie, John C. Jewett, C. Ed Adams and Leland P. Presler, Aldermen of the City of Shelbina, Appellants

Supreme Court of Missouri

January 7, 1935

Appeal from Shelby Circuit Court; Hon. V. L. Drain, Judge.

Affirmed.

Rice G. Maupin and Harry J. Libby for appellants.

(1) The city of Shelbina has power to erect, purchase, acquire maintain and operate an electric light and water plant to provide light, heat and water for its own uses and to supply its inhabitants therewith, and is expressly authorized and empowered to supply electric current from its municipal light plant to other municipal corporations for their use, and the use of their inhabitants. Sec. 12a, Art. X, Const. of Mo.; Secs. 7641, 7642, R. S. 1929; Speas v. Kansas City, 44 S.W.2d 108; Pub. Serv. Comm. v. Kirkwood, 4 S.W.2d 773; McMurry v. Kansas City, 223 S.W. 615; Omaha v. Omaha Water Co., 218 U.S. 201, 54 L.Ed 991, 30 S.Ct. 615; Henderson v. Young, 119 Ky. 224 83 S.W. 583; Yamhill Elec. Co. v. City of McMinnville, 274 P. 118; Rogers v. Wickliffe, 94 S.W. 24; Milligan v. Miles City, 51 Mont. 374, 153 P. 276; Muir v. Murray City, 186 P. 433; Pikes Peak Power Co. v. Colorado Springs, 105 F. 1, 44 C. C. A. 333; Fellows v. Los Angeles, 151 Cal. 52, 90 P. 137; Colorado Springs v. Colorado City, 42 Colo. 75, 94 P. 316; Larrimer County v. Ft. Collins, 68 Colo. 364, 189 P. 929; Simson v. Parker, 190 N.Y. 19, 82 N.E. 732; Mayo v. Dover & F. V. Co., 96 Me. 539, 52 A. 62; Town of Kearney v. Bayonne 107 A. 169; Board of Comm. v. Ft. Collins, 189 P. 929; Langdon v. Walla Walla, 193 P. 1; Dyer v. City of Newport, 123 Ky. 203. 94 S.W. 25, 29 Ky. L. Rep. 656; State v. City of Eau Claire, 40 Wis. 533; Green Bay & M. Canal Co. v. Water Power Co., 70 Wis. 635, 35 N.W. 529, 36 N.W. 828; Richards v. Portland, 121 Ore. 340, 205 P. 326; Paris Mountain Water Co. v. City of Greenville. 110 S.Ct. 36, 96 S.E. 545; Andrews v. South Haven, 187 Mich. 294, 153 N.W. 827. (2) The express power, conferred by Section 7642, Revised Statutes 1929, to "supply electric current from its light or power plant to other municipal corporations for their use, and the use of their inhabitants and to persons or private corporations for the use beyond the corporate limits of such city," necessarily includes power to deliver the product sold since delivery is an essential element of a sale. Power to build the transmission line, necessary to effect delivery, may, therefore, well be held to be within the powers expressly granted by statute. Certainly it must be held to be an implied or incidental power necessary to effectuate the powers expressly granted. A city possesses, (1) those powers expressly granted by its charter, or, (2) those fairly and necessarily implied from those granted, or, (3) those essentials to the objects and purposes sought to be attained. Speas v. Kansas City, 44 S.W.2d 113; McMurry v. Kansas City, 223 S.W. 615; Aurora Water Co. v. Aurora, 129 Mo. 540; St. Louis v. Dreisoerner, 243 Mo. 217; Vaughn v. Greencastle, 104 Mo.App. 206; St. Louis v. King, 226 Mo. 345. (3) The power to supply current from its municipal electric light plant to other municipalities, their inhabitants, and to persons or private corporations for use beyond the corporate limits of the city is a function intrusted by the statute (Sec. 7642, supra) to the board of aldermen the legislative body of the city, and should not be interfered with by the courts unless it is affirmatively shown to have been exercised arbitrarily, fraudulently or oppressively. Williams v. Hybskman, 311 Mo. 332, 278 S.W. 381; McMurry v. Kansas City, 283 Mo. 494, 223 S.W. 615; Heman v. Schulte, 166 Mo. 417; McGhee v. Walsh, 249 Mo. 266; Schwabe v. Moore, 187 Mo.App. 82; Johnson v. Duer, 115 Mo. 376; Sills v. Mo. Securities Corp., 5 S.W.2d 393; South Highland L. & I. Co. v. Kansas City, 172 Mo. 523; Prior v. Construction Co., 170 Mo. 439; Pendergast Construction Co. v. Goldsmith, 273 Mo. 184. (4) Every act of the Legislature is presumed to be constitutional until the contrary is made to appear beyond a reasonable doubt. It is only when an act of the Legislature manifestly contravenes some positive provision of the Constitution and its invalidity clearly appears that it can be declared void for that reason. In cases of doubt, every presumption not directly and clearly inconsistent with the language and subject matter, is to be made in favor of the constitutionality of the act. State ex rel. v. Railroad, 48 Mo. 471; State v. Abel, 65 Mo. 361; In re Matter of Burris, 66 Mo. 450; Kelly v. Meeks, 87 Mo. 400; State ex rel. v. Aloe, 152 Mo. 477; State v. Layton, 160 Mo. 488; State ex rel. v. McIntosh, 205 Mo. 602; State ex rel. v. Fort, 210 Mo. 526; Bledsoe v. Stallard, 250 Mo. 165; Green County v. Lydy, 263 Mo. 87; State ex rel. v. Gordon, 265 Mo. 181; State ex rel. v. Burton, 266 Mo. 711; State ex rel. v. Board of Curators, 268 Mo. 598; Davis v. Jasper County, 318 Mo. 248, 300 S.W. 394; State ex rel. v. St. Louis, 318 Mo. 870, 2 S.W.2d 713; Springfield v. Smith, 322 Mo. 129, 19 S.W.2d 3; State ex rel. v. Terte, 23 S.W.2d 121; Automobile Gasoline Co. v. St. Louis 32 S.W.2d 283; State v. Ward, 40 S.W.2d 1076.

Lane B. Henderson for respondents.

(1) The city of Shelbina has no authority under the Constitution to build a transmission line from the city of Shelbina to the village of Lakenan, approximately five miles distant, and to install meters and transformers, for the purpose of furnishing electricity to the inhabitants of Lakenan and adjacent thereto, all at the expense of the city, either out of the general revenue of the city or the income from the sale of electric current to the inhabitants of the city of Shelbina. Sec. 3, Art. X, Const. of Mo.; Sec. 6, Art. IX, Const. of Mo.; Secs. 46, 47, Art. IV, Const. of Mo. (2) No statutory authority has ever been granted by the General Assembly authorizing the city of Shelbina to erect transmission lines and install transformers and meters, all at the expense of the city of Shelbina, for the purpose of transmitting electric current to the inhabitants of the village of Lakenan and citizens adjacent thereto wholly outside the city of Shelbina; nor can any such authority be fairly and necessarily implied from the power granted, nor is the furnishing of electric current outside of the city, necessitating the erection of such transmission lines, essential to the dominant purposes and objects in authorizing municipalities to build, operate and maintain their own light plant. Secs. 7028, 7641, 7642, 7643, 7644, R. S. 1929; State ex rel. v. County Court, 142 Mo. 575, 44 S.W. 734; State ex rel. v. St. Louis, 216 Mo. 47, 115 S.W. 534; Kennedy v. Nevada, 281 S.W. 56, 222 Mo.App. 459; State ex rel. Kansas City v. Orear, 277 Mo. 303, 210 S.W. 392; Speas v. Kansas City, 329 Mo. 184, 44 S.W.2d 108; McMurry v. Kansas City, 283 Mo. 479, 223 S.W. 615; Aurora Water Co. v. Aurora. 129 Mo. 540, 31 S.W. 946; Vaughn v. Greencastle, 104 Mo.App. 206; St. Louis v. King, 226 Mo. 334, 126 S.E. 495; St. Louis v. Dreisoerner, 243 Mo. 217, 147 S.W. 198; Richards v. Portland, 255 P. 326, Pub. Util. Rep., 1927D, 104. (3) Any fair reasonable doubt concerning existence of municipalities' power is resolved against the municipality. Maryville v. Farmers Trust Co., 226 Mo.App. 641, 45 S.W.2d 104. (4) The trial court did not err in the refusal of declarations of law offered by appellants.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Shelbina, Missouri, a city of the fourth class owns, maintains and operates a municipal electric plant, furnishing light, heat and power for its own use and for sale to its inhabitants. Lakenan, Missouri, is an unincorporated village, located outside of and approximately five miles east of the corporate limits of Shelbina, and is without electric service. The city of Shelbina, having a surplus of electric energy from its municipal plant, contracted with prospective consumers residing in Lakenan and along a proposed electric transmission line to furnish electric service and construct an electric transmission line from its plant in Shelbina to Lakenan therefor. The city of Shelbina purchased materials for such transmission line and was proceeding to execute the contract and carry out the project. Thereupon, certain resident taxpayers (respondents here) of Shelbina instituted this action against the mayor and aldermen of the city of Shelbina (appellants here) to enjoin and restrain the erection or operation of said proposed electric transmission line.

Respondents, by appropriate pleadings, presented the contention, among others, that the city of Shelbina is without authority to construct, maintain and operate the proposed electric transmission line for the purpose of furnishing electric service to consumers outside the corporate limits of said city; because:

(1) Such action on the part of the city is in contravention of certain provisions of the Constitution of the State of Missouri, to-wit: Article 4, Section 46, prohibiting any city from making any grant of public money or thing of value to any individual, association of individuals, municipal or other corporation; Article 4, Section 47, prohibiting any city from lending its credit or from granting public money or thing of value in aid of or to any individual, association or corporation whatsoever; Article 9, Section 6, prohibiting any city from appropriating money or making a donation or loaning its credit to any other corporation, association or institution; and Article 10, Section 3, requiring taxes to be levied and collected for public purposes.

(2) The construction of the proposed electric transmission line is not...