City of Joplin v. Wheeler

• Decision Date: 29 July 1913
• Parties: CITY OF JOPLIN, Appellant, v. HERBERT R. WHEELER, Respondent
• Court: Missouri Court of Appeals

158 S.W. 924

173 Mo.App. 590

CITY OF JOPLIN, Appellant, v. HERBERT R. WHEELER, Respondent

Court of Appeals of Missouri, Springfield

July 29, 1913

Appeal from Jasper County Circuit Court, Division No. Two.--Hon. D E. Blair, Judge.

Judgment affirmed.

R. A Pearson for appellant.

(1) The city has full power and authority "to exercise exclusive control over its streets and alleys." Secs. 10294, 9227 and 9230, R. S. 1909; Sec. 9254, Sess. Acts 1911 of Missouri p. 337. (2) Under its delegated authority and inherent police power the city may regulate and control the uses of its streets, below the surface and above. Crumpler v. City of Vicksburg, 29 Miss. 214, 10 Am. & Eng. Cas. 1098; State ex rel. v. Murphy, 134 Mo. 560; City of Plattsburg v. Telephone Co., 88 Mo.App. 311; Kansas City v. Richardson, 90 Mo.App. 450; City of Lancaster v. Briggs, 118 Mo.App. 570; Ferrenbach v. Turner, 86 Mo. 416; State ex rel. v. St. Louis, 145 Mo. 551; 28 Cyc. 851. (3) The right of the water company to the use of the street for a public service carries with it the correlative obligation to exercise such right to the extent of the grant and the franchise limits are plainly the limits of the street itself. 20 Cyc. 1159 and 1160; 30 Am. & Eng. Ency. 426 and 439; Vanderburg v. Gas Co., 126 Mo.App. 606; State ex rel. v. Water Co. , 52 Mo.App. 312; Water Co. v. Standley, 7 Ida. 155, 61 P. 518; Hatch v. Consumers Co., 17 Ida., 204, 104 P. 670. (4) The rights and liability as between the water company and a private party are not the measure of the rights of a water company as against the legislative power of the city, nor reasons of an appellate court in the one case precedents in another where a different state of facts are at issue. State ex rel. v. Railroad, 240 Mo. 53; State ex rel. v. St. Louis, 241 Mo. 231. (5) The city could change the rates of the ordinance under its charter power. City of St. Louis v. Bell Co., 96 Mo. 623; State ex rel. v. Telephone Co., 189 Mo. 83; Knoxville v. Water Co., 189 U.S. 434; Water Co. v. Freeport, 180 U.S. 581, 45 L.Ed. 679; Water Co. v. Fergus, 180 U.S. 624, 45 L.Ed. 702; Dillon Municipal Corporations (4 Ed.), sec. 97. (6) Under the fixed schedule of rates the water company is without right to charge for service pipes; and the ordinance is within the scope of the city's delegated power to regulate the charges for the water company's service. Sec. 9568, R. S. 1909; St. Louis v. Tel. Co., 96 Mo. 623; City of St. Charles v. Elsner, 155 Mo. 671; Fisher v. Water Co., 151 Mo.App. 536; City of Pine Bluff v. Toney, 96 Ark. 345, 131 S.W. 680; Water Co. v. El Paso, 112 S.W. 816; Cleveland v. Waterworks Co., 125 P. 769; State v. Water Co., 127 P. 304.

Spencer, Grayston & Spencer for respondent.

(1) After granting a franchise which authorized the water company to require the consumer to install and maintain service pipes at his own expense, the city could not impose that burden upon the water company. McQuillin Municipal Ordinances, sec. 239. (2) The city could not create a liability from one citizen to another. Becker v. Schute, 85 Mo.App. 62. (3) Ordinance No. 3819 which undertakes to compel water and gas companies to bear the expense of installing and maintaining service pipes does not even purport to fix rates and is not referable to the power given cities to fix rates at which water or gas may be sold. R. S. 1909, Secs. 9568 and 9569. Ex parte Goodrich, 160 Cal. 410, 117 P. 451, 26 Am. & Eng. Ann. Cas. 56; Telephone Co. v. City of Carthage, 235 Mo. 667 and 668. (4) While there is a conflict in the decisions of the various States as to who should install and maintain service pipes, in the absence of express franchise provisions determining the question, Missouri has taken its place with those which hold that it is more equitable to require each consumer to bear the expense incident to his own peculiar requirements than to indirectly distribute the expense among all the consumers without reference to the requirements of each consumer. Fisher v. Water Co., 151 Mo.App. 530; Franke v. Water Co., 88 Ky. 467; Gleason v. Waukesha Co., 103 Wis. 225; State v. Gosnell, 93 N.W. 542, 116 Wis. 606, 61 R. R. A. 33; Prindiville v. Jackson, 79 Ill. 337; Donavan v. Oswego, 86 N.Y.S. 155; Warren v. Chicago, 118 Ill. 329. (5) The service pipe in question was furnished and installed by the owner of the premises and was the property of the owner of said premises. Mulrooney v. Obear, 171 Mo. 613; Philbrick v. Ewing, 97 Mass. 133. (6) The water company had a right to make reasonable rules concerning matters not covered by the franchise ordinances. The franchise contract gave the water company the right to make the particular rule under which this service pipe was constructed by the owner. 30 Am. & Eng. Ency. of Law, 418; 1 Wyman on Public Service Corporations, sec. 417; State v. Goodfellow, 1 Mo.App. 495; ordinance 79, secs. 20 and 15.

STURGIS, J. Farrington, J., concurs. Robertson, P. J., concurs in result.

OPINION

STURGIS, J.

This is an appeal from a judgment of the circuit court of Jasper county, Missouri, 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 Waterworks Company; that the Joplin Waterworks 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 purusance 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, Missouri, 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 twenty years. The Joplin Waterworks 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 twenty 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...