City of Camdenton v. Sho-Me Power Corp.

• Citation: 237 S.W.2d 94,361 Mo. 790
• Decision Date: 12 February 1951
• Docket Number: No. 41800,No. 1,SHO-ME,41800,1
• Parties: CITY OF CAMDENTON v.POWER CORP
• Court: United States State Supreme Court of Missouri

Page 94

237 S.W.2d 94

361 Mo. 790

CITY OF CAMDENTON v. SHO-ME POWER CORP.

No. 41800.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1951.

Motion for Rehearing or to Transfer to Court En Banc Denied

and Opinion Modified March 12, 1951.

Gregory C. Stockard, Sam S. Haley, Jefferson City, for appellant.

James P. Roach, Camdenton, Wayne W. Waldo, Claude T. Wood, Richland, for respondent.

HOLLINGSWORTH, Judge.

This action, brought by respondent, City of Camdenton, under the declaratory judgment act, seeks an adjudication of the respective rights of respondent and appellant, Sho-Me Power Corporation, to own and operate an electric distribution system in the respondent city. Respondent alleged that all of the rights of appellant to maintain and operate such a system, presently owned and operated by it, would expire on the 7th day of September, 1951. Following an unsuccessful motion to dismiss, appellant joined issue on respondent's allegations, and further asserted and prayed a declaration that it had a perpetual right to so maintain and operate its system by virtue of its succession as assignee to a right so to do reserved by the dedicators of the streets and alleys of the original town of Camdenton. Appellant further alleged and prayed the court to declare that an existing contract between it and respondent gives it the right to furnish the city with street lights until June 25, 1955. The court found all of the issues in favor of respondent.

On the 4th day of December, 1930, one C. E. Webb and wife, being the owners of the Northeast Quarter of Section 25, Township 38, Range 17, in Camden County, executed a deed of dedication and plat of the original town of Camdenton, which was duly recorded on the same day. On that date the Town of Camdenton was a village and its area was within the quarter section so dedicated. The plat showed a detailed division into lots, blocks and streets and an area in the central part thereof designated 'Camden Court'. The deed recited: 'The width and length of all roads and streets are as shown and are hereby dedicated to public use subject to the reservation that the grantors and their assigns shall have the right to locate, build, maintain and operate sewer, telephone, light and power lines, water mains, outlets and connections for the same, along, through or under Camden Court and all roads, streets and parkways in said town, which rights are not granted by this dedication.' Through mesne conveyances, appellant acquired such utility rights as were reserved by the dedicators.

Respondent became a city of the fourth class on December 5, 1934. By additions from time to time attached to its original confines, it now extends over an area of approximately four times that of the original town. None of the added area is subject to any written reservation of public utility rights. Appellant contends, however, that by reason of its succession to the reservation in the plat and the sale of lots by dedicators and their grantees and the use of the streets shown on the plat by the public, respondent is estopped to deny the validity of the reservation, and that such right continues in perpetuity and is coextensive with the city.

On September 8, 1931, the board of trustees of the Town of Camdenton, pursuant to an ordinance and an election held thereunder, granted an electric franchise to appellant's predecessor for a period of twenty years from September 8, 1931. This franchise is coextensive with the city and was duly assigned to appellant. No question is raised as to its validity or that it will expire on September 7, 1951.

On the 26th day of June, 1945, the mayor and clerk of respondent, without the approval or consent of the qualified voters, entered into a written contract whereby appellant was granted the right to own, operate and maintain an electric system for lighting the streets of the city for a period of ten years. As stated, respondent challenged the validity of this contract and asserted that in no event can it lawfully extend beyond the expiration date of the twenty year franchise, to-wit, September 7, 1951.

Sometime prior to April, 1947, respondent initiated a plan to purchase or construct and to operate an electric distribution system of its own upon termination of the twenty year franchise under which appellant operated. Pursuant to ordinance and an election held in accordance with its provisions, the qualified voters of the city authorized the issuance of revenue bonds in the sum of $60,000 to finance the purchase or construction of its planned municipally owned system. The evidence shows this sum is sufficient for the purpose and that respondent will be able to put a municipally owned system into operation at the expiration of the twenty year franchise if, as respondent contends, it has the right to oust appellant from the city at that time.

Under the undisputed facts, as above stated, the court found that a present, existing controversy had developed at the date of the institution of this suit for determination under the declaratory judgment act; that appellant's motion to dismiss should be and was overruled; that all rights of appellant to use and occupy the streets and alleys of respondent would finally expire on September 7, 1951; that the action of the board of aldermen in attempting to bind respondent on the street lighting contract dated June 26, 1945, for any period extending beyond the 7th day of September, 1951, was ultra vires and void; and that the reservation in the deed of dedication was repugnant to and violative of public policy and the statutory powers conferred upon respondent to control its streets and alleys and, therefore, was void.

Appellant contends the allegation in respondent's petition that it 'proposes, on the 7th day of September, 1951, or within a reasonable time thereafter, to oust defendant', in and of itself, reveals the action was prematurely brought, and that its motion to dismiss should have been sustained on that ground. Both appellant and respondent cite the case of City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411, in support of their respective contentions. It holds, 161 S.W.2d loc.cit. 412: 'The act furnishes a particularly appropriate method for the determination of controversies relative to the construction and validity of statutes and ordinances. * * * And it is an appropriate way of determining the powers and duties of various governmental agencies * * * and even the duties of different governmental agencies with respect to the administration of public assistance. * * * But, when it is attempted to be so used and a judicial declaration is sought the court must be presented with a justiciable controversy--one appropriate for judicial determination--a case admitting of specific relief by way of a decree or judgment conclusive in character and determinative of the issues involved. * * * There must be a sufficiently complete state of facts presenting issues ripe for determination before a court may declare the law. 'A mere difference of opinion or disagreement or argument on a legal question affords inadequate ground for invoking the judicial power.'' Appellant also cites State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, which holds that the petition must present a real and substantial controversy admitting of specific relief through a decree of a conclusive character.

Such is the law in all actions under the declaratory judgment act. Therefore, does a present, substantial controversy exist between respondent and appellant that admits of specific relief through a decree of a conclusive character? Respondent's plans have advanced to the point where there is nothing to prevent their completion other than the possibility that appellant might continue to operate an electric distribution system in the city. The fact that the voters authorized the issuance of $60,000 of revenue bonds and that they are adequate in amount shows respondent is able, willing and committed to finally consummate the plan. If respondent's contention is sound, and if it must wait until September 7, 1951, before it can maintain this action, then it will lose precious time in the completion of its plans. In the meantime, the city and its inhabitants would be without electricity unless appellant will agree to remain as a licensee until respondent acquires or constructs a distribution system. It is further apparent that respondent would be embarrassed in finding a market for its bonds, if, indeed, it would not be impossible, until this question is settled. The act provides, Sec. 1128, Mo.R.S.A.1939, Sec. 527.030, Mo.R.S.1949, that a contract may be construed either before or after there has been a breach thereof, and the second section, Sec. 1127, Sec. 527.020, specifically authorizes the maintenance of this action. One of its purposes is to afford a means of forestalling the possibility of such untoward eventualities as these. See City of Nevada v. Welty, 356 Mo. 734, 203 S.W.2d 459. We rule this contention against appellant.

Appellant contends further that its motion to dismiss should have been sustained for the reason that the act, Sec. 1136, Sec. 527.110, provides that all persons shall be made parties who have or claim any interest which would be affected by the declaration, and that the reservation upon which it relies refers to rights to operate sewer, telephone and water systems in addition to the franchise granted its predecessor, and that the interests of such parties...