City of Joplin v. Wheeler

• Decision Date: 18 July 1913
• Citation: 158 S.W. 924
• Parties: CITY OF JOPLIN v. WHEELER.
• Court: Missouri Court of Appeals

158 S.W. 924

CITY OF JOPLIN v. WHEELER.

Springfield Court of Appeals. Missouri.

July 18, 1913.

1. WATERS AND WATER COURSES (§ 203) — WATER COMPANIES — RATES — STATUTORY REGULATIONS.

The state may regulate the rates to be charged by a public service corporation supplying, under a franchise, water to a city and its inhabitants, whether the franchise be granted by the state or a municipal corporation.

2. WATERS AND WATER COURSES (§ 203) — WATER SUPPLY COMPANIES — RATES — STATUTORY REGULATIONS.

The state may delegate to a municipal corporation the power to fix rates to be charged by a public service corporation supplying, under a franchise granted by the city, water to the city and its inhabitants.

3. WATERS AND WATER COURSES (§ 203) — PUBLIC SERVICE CORPORATIONS — REGULATION OF RATES — ORDINANCES.

An ordinance, which requires a water company, supplying water to a city and its inhabitants under a franchise granted by the city, to bear the expense of installing and keeping in repair service pipes from the mains of the company to the property line, cannot be sustained as an ordinance regulating water rates.

4. WATERS AND WATER COURSES (§ 203) — WATER COMPANIES — REGULATION OF RATES.

An ordinance, regulating the rates to be charged by a public service corporation for water supplied under a franchise to a city and its inhabitants, must allow a reasonable profit on the investment, and the expense of operation must be paid by the consumers, and an ordinance requiring the company to bear the expense of installing and keeping in repair service pipes from the mains to the property line, if deemed an ordinance to fix rates, is objectionable as unfair and unequal as to the consumers and the company.

5. WATERS AND WATER COURSES (§ 194) — WATER COMPANIES — OBLIGATIONS — ENFORCEMENT.

Where a franchise, granted to a water company supplying water to a city and its inhabitants, requires the company to bear the expense of installing and keeping in repair service pipes from the mains to the property line, an ordinance punishing the failure so to do is valid as enforcing the obligation, but it cannot create such an obligation where outside of the franchise, and also enforce the obligation.

6. WATERS AND WATER COURSES (§ 194) — WATER COMPANIES — REGULATIONS — ORDINANCES — VALIDITY.

An ordinance requiring a water company, operating under a franchise granted by a city, to install and keep in repair service pipes from the mains to the property line, and making the failure so to do a misdemeanor, cannot be sustained as an exercise of the police power of the city to regulate the use of its streets.

7. WATERS AND WATER COURSES (§ 202) — WATER COMPANIES — REGULATIONS — MUNICIPAL AUTHORITY.

A city, granting a franchise to a water company supplying the city and its inhabitants

with water, may enforce reasonable ordinances regulating the performance by the company of its duty to the city and the inhabitants, and the proper and safe use of the streets in so doing, but an ordinance, to be valid, must be one to regulate the manner or to enforce the performance by the company of its duty already imposed by the franchise, and such an ordinance cannot create new duties.

8. MUNICIPAL CORPORATIONS (§ 589) — LEGISLATIVE POWERS.

A city has no power by municipal ordinance to create a civil liability from one citizen to another, nor to relieve one citizen from that liability by imposing it on another.

9. WATERS AND WATER COURSES (§ 194) — WATER COMPANIES — FRANCHISES — CONSTRUCTION.

A city granted a franchise for 20 years, to operate a waterworks system, to supply the city and its inhabitants with water at a schedule of rates. A company succeeded to the rights under the franchise, which was extended by subsequent ordinance for another 20 years, with a new schedule of water rates. Both ordinances were silent as to the duty of the company to install and keep in repair service pipes from the mains to the property line, and during the period of the original franchise, and for some time under the renewal franchise, the company was not required to install and keep in repair service pipes. The franchise under which the company operated provided for the construction of distribution pipes of a specified length, and gave to plumbers the right to tap mains and make proper connections, on giving bond to the company conditioned on the proper execution of the plumbing. Held, that the franchise ordinance, on its face and as construed by the parties, did not impose on the company the duty to install and keep in repair the service pipes, and a subsequent ordinance, imposing on the company that duty, was invalid.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Herbert R. Wheeler was charged with a violation of an ordinance of the City of Joplin, and from a judgment of acquittal, the City appeals. Affirmed.

R. A. Pearson, of Joplin, for appellant. Spencer, Grayston & Spencer, of Joplin, for respondent.

STURGIS, J.

This is an appeal from a judgment of the circuit court of Jasper county, Mo., acquitting and discharging the defendant, under a prosecution by the city of Joplin, for a violation of an ordinance of that city, entitled "An ordinance requiring all corporations holding franchises in the city of Joplin, for the distribution of gas and water, to bear the expense of installing and keeping in repair service pipes from the mains of such companies to property line." The case was submitted to the trial court on an agreed statement of facts, substantially as follows: That the defendant was, at all times mentioned in the information filed in this cause, superintendent of the Joplin Water Works Company; that the Joplin Water Works Company was at said times the owner of and operating a system of waterworks in said city, and engaged in the business of supplying water to the said city for fire extinguishment and other purposes, and to the residents and inhabitants of said city for domestic purposes, pursuant to the ordinances hereinafter named; that in so doing the said water company owned and maintained a plant, machinery, and main pipes for the purpose of pumping and distributing water to its customers; that the said water company, by its rules and regulations, required its customers to construct and maintain service pipes from its mains, the said company making the tap, or connection, at the main, and charging the customer the expense of making the connection; that the franchise under which the said company was operating results from ordinance No. 2184, approved June 30, 1904, and ordinance No. 79, approved December 21, 1880, which last-mentioned ordinance was made a part of said first-mentioned ordinance by reference thereto, and by adoption of such parts of the prior ordinance as are not in conflict or inconsistent with the ordinance last enacted; that the franchise so resulting from both said ordinances was valid, and that the reference in the ordinance last enacted to the ordinance first enacted is also valid and effective; that on March 27, 1906, a tap was made for the consumer at 916 Taylor avenue in said city, and service pipes constructed from the main in said Taylor avenue to the house at said number, the tap being made by the said water company and paid for by the owner of said premises, and the said service pipe having been furnished, placed, and constructed by the said owner of said premises, by and in pursuance of the rules and requirements of said water company; that the said Taylor avenue was and is a public street in the city of Joplin, in Jasper county, Mo., the said city being now, and having been since about 1886, a city of the third class, organized under the general laws of the state; that on March 1, 1910, the said city enacted ordinance No. 3819, entitled "An ordinance requiring all corporations holding franchises in the city of Joplin for the distribution of gas and water to bear the expense of installing and keeping in repair service pipes from the mains of such companies to property line"; that some time prior to April 19, 1912, a leak appeared in the said service pipe between the lot, or property line, and the water company's main, in the roadway and near the curb line of said street, causing a soft place in the street, which the defendant admits constituted a defect therein; that shortly after the leak appeared, the tenant of the said property notified defendant, as superintendent of the water company, of the existence of the leak, and asked that the same be repaired by the water company; that the notice was sufficient as to time and form, but the defendant declined to repair the same, taking the position that it was not the duty of the water company to repair the pipe; that the ordinances mentioned shall be considered as a part of this agreed statement of facts.

The ordinances referred to are in evidence, and show that in 1880 the city of Joplin granted to one Paul B. Perkins, his associates and assigns, a franchise to construct and operate a waterworks system to supply the city and its inhabitants with water at a schedule of rates therein prescribed. This franchise was for 20 years. The Joplin Water Works Company succeeded to his rights under this ordinance, and in 1904 the city, by a second or supplementary ordinance, extended this franchise to that company for another period of 20 years, with a new and somewhat lower schedule of water rates. Treating these ordinances as one, and as constituting defendant's franchise contract, we find that the city contracted with said company for supplying with water the streets, alleys, and public places of the city and its inhabitants. The water company is authorized to construct and operate a system of waterworks in and adjacent to the city, and to use the streets, alleys, squares, and public places in the city, so far as necessary, to lay water pipes and maintain the necessary appliances for supplying water to the city and its inhabitants, and to extend and...