City of Brunswick v. Myers

• Decision Date: 08 March 1948
• Docket Number: 40627
• Citation: 209 S.W.2d 134,357 Mo. 461
• Parties: The City of Brunswick, by L. A. Kinkhorst, Mayor, and Luke G. O'Reilly, Appellants, v. J. H. Myers, George Lewis, Herman Moses, Granville Goe, L. W. Cuddy, Tyson Nichols, Aldermen of the City of Brunswick, the Kansas City Power and Light Co., a Corporation, and James A. Williams
• Court: Missouri Supreme Court

209 S.W.2d 134

357 Mo. 461

The City of Brunswick, by L. A. Kinkhorst, Mayor, and Luke G. O'Reilly, Appellants, v. J. H. Myers, George Lewis, Herman Moses, Granville Goe, L. W. Cuddy, Tyson Nichols, Aldermen of the City of Brunswick, the Kansas City Power and Light Co., a Corporation, and James A. Williams

No. 40627

Supreme Court of Missouri

March 8, 1948

Appeal from Chariton Circuit Court; Hon. G. Derk Green Judge.

Affirmed.

Wayne E. Wheeling for appellants.

(1) Under the amendment of 1945, cities of the fourth class now have the power and right to license or tax light and power companies. Sec. 7196, R.S. 1939; Union Electric Co. v City of St. Charles, 181 S.W.2d 527; City of Bolivar v. Ozark Utilities Co., 191 S.W.2d 368. (2) A license tax is after all, a tax. City of St. Louis v. Laclede Power & Light Co., 152 S.W.2d 23. (3) The voters of cities of the fourth-class have no right or authority under the law to levy a license tax at an election or by means of an election. Sec. 7162 R.S. 1939. (4) A municipality cannot surrender its right to levy a tax. Secs. 1, 2, 3, Art. X of the Constitution; City of Kansas City v. Corrigan, 18 Mo.App. 206; Baum v. City of St. Louis, 123 S.W.2d 48; 43 C.J. 586; Dallas R. Co. v. Geller, 114 Texas 484, 271 S.W.2d 1106. (5) Special elections can be restrained under proper conditions. Mo. Electric Co. v Mountain Grove, 176 S.W.2d 612; State ex rel. Asotsky et al. v. Regan, 289 S.W. 747; 43 C.J.S. 633, 644, 645; Carson v. Sullivan, 223 S.W. 571. (6) It was improper for the Utility Company to pay the expenses of the special franchise election. (7) It is improper for a franchise contract to provide for acceptance by the Utility Company after a special franchise election.

Ludwick Graves, James H. Ottman and Gilbert Lamb for respondents; Johnson, Lucas, Graves & Fane of counsel.

(1) A court of equity will not attempt to restrain the doing of any act which has already been accomplished. Fugel v. Becker, 2 S.W.2d 743; Carlin v. Wolff, 154 Mo. 539, 51 S.W. 679; Corken v. Workman, 98 S.W.2d 153; Putnam v. Coates, 220 Mo.App. 218, 283 S.W. 717; 1 C.J. 973. (2) The holding of a special election submitting to the voters of the City of Brunswick, Missouri, for their approval or disapproval, an ordinance granting a franchise to Kansas City Power & Light Company was an exercise of the political right or power, and where such exercise of the political power is specifically authorized and directed by law, a court of equity has no jurisdiction to interfere therewith. Missouri Electric Power Co. v. City of Mountain Grove, 352 Mo. 362, 176 S.W.2d 612; State ex rel. City of Clarence v. Drain, 335 Mo. 741, 73 S.W.2d 804; State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655; Cleveland Cliffs Iron Co. v. Village of Kinney, 262 F. 980. (3) Section X of the franchise ordinance in question does not attempt to and cannot fix the license tax for a period of twenty years, or for any other period, and is in no sense a surrender of the city's right to increase, amend or abrogate such license tax. Sec. 2, Art. X, Constitution of Missouri; St. Louis v. United Rys. Co., 210 U.S. 266, 28 S.Ct. 630, 52 L.Ed. 1054; City of Springfield v. Smith, 138 Mo. 645, 40 S.W. 757; City of Kansas v. Corrigan, 18 Mo.App. 206; Savannah T. & I. of H. Ry. v. Savannah, 198 U.S. 392, 25 S.Ct. 690, 49 L.Ed. 1097. (4) That portion of the franchise ordinance providing for a license tax (Section X), together with the balance of said ordinance, was passed and adopted by the Board of Aldermen, and the ratification by the voters of Brunswick of Section X neither added to nor detracted from the validity or effect of such portion of the ordinance. State v. Becker, 240 S.W. 229; Kansas City P. & L. Co. v. Town of Carrollton, 346 Mo. 802, 142 S.W.2d 849; 59 C.J. 719; 43 C.J. 593; Baum v. St. Louis, 343 Mo. 738, 123 S.W.2d 48. (5) That portion of the franchise ordinance providing for a license tax (Section X) was merely incidental to the main purpose of the ordinance and hence, if void, does not affect the validity of the remainder of said ordinance. Poole & Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23; City of St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 89 S.W. 617; DePauw University v. Brunk, 53 F.2d 647, affirmed 285 U.S. 527, 52 S.Ct. 405, 76 L.Ed. 924; State ex inf. McKittrick ex rel. City of Springfield v. Springfield Water Co., 345 Mo. 6, 131 S.W.2d 525; Birch v. City of Plattsburg, 180 Mo. 413, 79 S.W. 475; 43 C.J. 547. (6) The payment by the public utility company of the expenses of a special election held for the purpose of submitting a franchise ordinance to the voters for their ratification was not a violation of the Corrupt Practice section of the Missouri election laws. Art. 15, Chap. 76, R.S. 1939; State ex rel. Crow v. Bland, 144 Mo. 534, 46 S.W. 440; State ex inf. Burgess ex rel. Hankins v. Hodge, 320 Mo. 877, 8 S.W.2d 881. (7) A franchise granted to a public service company by a municipality must be accepted by the public service company. New York Electric Lines Co. v. Empire City Subway Co., 235 U.S. 179, 35 S.Ct. 72, 59 L.Ed. 184; Kansas City P. & L. Co. v. Town of Carrollton, 346 Mo. 802, 142 S.W.2d 849; 37 C.J.S. 162; 23 Am. Jur. 724.

OPINION

Clark, J.

Appeal by plaintiffs from an order of the circuit court dismissing their petition wherein they sought to enjoin the holding of a special franchise election in the City of Brunswick, a city of the fourth class. Appellants are Kinkhorst, the Mayor, and O'Reilly, a taxpayer and citizen of Brunswick. Respondents are the members of the Board of Aldermen, a newspaper publisher and the Kansas City Power and Light Company.

On August 4, 1947, the board of aldermen, over the Mayor's veto, enacted an ordinance granting the Power and Light Company a twenty year franchise to carry on a general power and light business in Brunswick; providing that the ordinance be submitted to the qualified voters of the city at a special election on September 2; providing that the Power and Light Company should pay the cost of election and that, if approved by a majority vote at the election, the franchise should become effective if the grantee should file its written acceptance within thirty days. Section ten of the ordinance provided "In consideration of the grant herein made," the grantee shall pay to the city "as a license fee" five per cent of gross receipts. "The tax herein required to be paid shall be in lieu of any other occupation license or merchandising tax but shall not be in lieu of any ad valorem tax."

Plaintiffs filed their petition in the circuit court seeking to enjoin the holding of the special election. On motion of respondents the court dismissed the petition. Plaintiffs appealed and filed an application in this court to advance the cause, but the case reached us too late to be heard before the date of the special election. The election was held on September 2, and a majority of the votes cast were in favor of granting the franchise.

An injunction against the holding of the election was the only relief specially prayed for in the petition, although general relief was asked. The election has been held and that raises a serious question whether there is now any issue for us to decide. However, as injunction was sought before the election and as the validity of the election has been fully briefed and argued, we will discuss all the questions raised.

Appellants contend that their petition stated ground for injunction because the franchise ordinance is void for three reasons:

1. Section ten of the ordinance fixes a maximum rate of license tax, in lieu of all other license taxes, for twenty years and prevents future boards of aldermen from changing the rate or method of levying license taxes against the Power and Light Company.

2. The ordinance provides that the cost of the election shall be paid by the Power and Light Company.

3. The ordinance reserves the right to the Power and Light Company to accept or reject the franchise after it has been ratified by a vote of the people.

Appellants say that under certain circumstances injunction will lie to restrain the holding of a municipal election. Typical of the cases cited by appellants on this point are: Baum v. City of St. Louis, 343 Mo. 738, 123 S.W.2d 48; State ex rel. Asotsky v. Regan, 317 Mo. 1216, 298 S.W. 747, and Missouri Electric Power Co. v. Mountain Grove, 352 Mo. 262, 176 S.W.2d 612. In the Baum case we affirmed a decree of the circuit court enjoining the submission of certain ordinances to a vote of the people under the initiative provisions of a city charter. The ordinances were for public work which had not been approved by the board of public service as provided by the city charter. We held that the city council was without power to enact the ordinances, until approved by the board of public service, and that the same restriction applied to their enactment by the initiative. In the Asotsky case the city had enacted an ordinance levying a tax on the sale of cigarettes, with an emergency clause. We held the emergency clause valid and, therefore, the ordinance was not subject to referendum. In the Missouri Electric Power Company case that company sought to enjoin an election to vote bonds for the purchsase or construction of a municipal power plant. The petition alleged a fraudulent conspiracy which would not afford the voters a fair and free opportunity to express their views on the proposition. We held that the allegations did not authorize the issuance of an injunction

The above cited cases and other cases show that the holding of this court is that injunction is proper to prevent an election only when such election is plainly unauthorized by law.

In the instant case the election to adopt a twenty...