City of Carthage v. Carthage Light Co.

• Decision Date: 01 December 1902
• Citation: 97 Mo. App. 20,70 S.W. 936
• Parties: CITY OF CARTHAGE v. CARTHAGE LIGHT CO.
• Court: Missouri Court of Appeals

70 S.W. 936

97 Mo. App. 20

CITY OF CARTHAGE v. CARTHAGE LIGHT CO.

Court of Appeals at Kansas City, Missouri.

December 1, 1902.

MUNICIPAL CORPORATIONS — CHARTER — LIGHT FRANCHISE — VALIDITY — PLEADING — ESTOPPEL.

1. Act Feb. 27, 1875, authorizing the mayor and council of a city to grant the right to erect water or gas works, lay pipes, etc., did not authorize an ordinance authorizing erection of an electric light plant, and the occupation of the street with wires, etc.

2. An ordinance passed under Act Feb. 27, 1875, art. 5, § 49, or Acts 1893, p. 85, § 95, authorizing the erection of a lighting system by certain persons, but not ratified by a certain number of voters, as required by the statutes, is of no validity.

3. The right of an electric street railway under its franchise to occupy the street with poles, wires, etc., cannot be disconnected with the operation of the railway, and transferred to one who does not own the franchise, nor operate under it, for the purpose of electric lighting.

4. An estoppel in pais must be pleaded.

Appeal from circuit court, Jasper county; J. D. Perkins, Judge.

Action by the city of Carthage against the Carthage Light Company. From a judgment for defendant, plaintiff appeals. Reversed.

I. F. Shannon and H. J. Green, for appellant. John A. Eaton, and Howard Gray, for respondent.

SMITH, P. J.

The plaintiff is a city of the third class, and the defendant is a business corporation organized in 1897 under the provisions of article 8, c. 42, Rev. St. 1889. The plaintiff was organized under the act of March 15, 1873 (Sess. Acts 1873, p. 221) and the amendatory act of February 27, 1875, and continued to thus exist until 1890, when it became, and ever since has remained, a city of the third class under the statute (Sess. Acts 1893, p. 65). In 1885 the plaintiff, by ordinance, granted the Sperry Electric Light & Power Company and its assigns permission to erect, maintain, and operate electric light works, and to transmit power by means of poles and wires for a period of 20 years. In 1894 the plaintiff, by a further ordinance, granted to F. H. Fitch and assigns the privilege to construct, maintain, and operate over certain of its streets and alleys an electric railway, and also the further permission to erect poles and wires for electric lighting purposes. It stands admitted by the pleadings that while the plaintiff existed under its special charter — the said act of 1875 — the privilege was granted by it to the assigns of the defendant to use its streets and alleys for the erection of poles and the swinging of wires thereon, and that the defendant had succeeded to the ownership of the said privileges so granted to its assigns, and as such assignee was occupying said streets and alleys thereunder. There is no issue made by the pleadings as to the assignment and ownership of the privileges granted especially to Sperry and Fitch; and, if there had been, the uncontradicted and unobjected-to evidence adduced by the defendant clearly established the affirmative of that issue. It is conceded that the plaintiff had at no time granted to the defendant directly the right to erect its poles or swing its wires in the streets and alleys of the former, so that, if the defendant has any right to use and occupy the streets and alleys of the plaintiff with its poles and wires, that right is derived exclusively through the grants made to one or both of its assignors. The question, then, is, did that right pass to the defendant's assignors, or either of them, under the ordinances to which we have alluded? The Sperry privilege was granted in 1885, while the plaintiff was governed by the charter act of 1875, so that whether that act authorized the passage of the ordinance granting that privilege is one of the decisive questions we are required to determine. Sections 19 and 27 of article 5 of that act provide that the city council shall have the power by ordinance "to provide the city with water and light," and to provide for lighting the streets and erecting lamps thereon; and section 49 of the same article provides that the said council shall also have power to erect, maintain, and operate waterworks or gasworks, and to regulate the same; to acquire grounds on which to erect such works, etc.: "provided (1) the mayor and council may in their discretion grant the right to any person or persons to erect water works or gas works and lay down pipes, mains, etc., for the use of the city and its inhabitants as the council may by ordinance prescribe: provided (2) that such right shall not be granted for a longer time than thirty years and shall not be granted unless the consent of a majority of the qualified voters of the city voting at an election for that purpose shall so determine." These three sections of the act are in pari materia, and must be treated as if one section, and that construction adopted that will give effect to all of them. City of St. Louis v. Howard, 119 Mo. 41, 24 S. W. 770, 41 Am. St. Rep. 630; Andrew Co. v. Schell, 135 Mo. 31, 36 S. W. 206. The first of these confers upon the plaintiff the power to provide light and to erect lamps for that purpose on the streets, and the other authorizes this utility to be provided in one of two ways; that is to say, either by erecting, maintaining, and operating gas works itself, or by granting the right to some other...