Frolichstein v. Cupples Station Light, Heat & Power Company
| Decision Date | 04 March 1919 |
| Citation | 210 S.W. 90,201 Mo.App. 162 |
| Parties | SIMON H. FROLICHSTEIN, Appellant, v. CUPPLES STATION LIGHT, HEAT & POWER COMPANY and THE CITY OF ST. LOUIS, Respondent |
| Court | Missouri Court of Appeals |
Argued and Submitted January 22, 1919.
Appeal from the Circuit Court of the City of St. Louis--Hon. Eugene McQuillin, Judge.
AFFIRMED.
Judgment affirmed.
Schnurmacher & Rassieur and John M. Goodman for appellant.
(1) The title to Ordinance No. 18680 limits the subject matter thereof to underground wiring, and section 13, article 3, of the charter of St. Louis concerning titles to ordinances restricts the provisions of such ordinance to such subject-matter. To construe the ordinance as granting rights respecting surface and overhead wires, would by interpretation make the ordinance extend to matters concerning which the Municipal Assembly could not have legislated. (a) The only subject-matter referring to legislation in the title to Ordinance No. 18680 is that relating to underground wiring. (b) The reference in the title to the section of the "Krum Code" and ordinances to be repealed do not extend the right of the Municipal Assembly to enact original legislation respecting the subject-matter of the repealed provisions, because such title does not provide for the enactment of new provisions in lieu thereof. (c) No ordinance can contain legislation with respect to more than one subject, which must be clearly expressed in the title. Charter of the City of St. Louis (1876), section 13, article 3. (d) The charter provision above refered to is mandatory in its nature and must be observed. 2 Dillon, Municipal Corporations, section 577. (e) It is the uniform rule in Missouri that courts will look to the title of an act of the Legislature or Municipal Assembly to ascertain the true intent of the legislation set forth under such caption. City of Sedalia v. Taylor, 206 Mo. 346; Dart v. Bagley, 110 Mo. 42. 2 The fact that Ordinance No. 18680 did not amend, but left intact section 603 of the Krum Code, which then and for some time had limited the granting of franchises and permits for the placing of wires in the streets of St. Louis to persons or companies who had acquired rights under Ordinance No. 12723 as limited by Ordinance No. 16894 and re-inacted all of old section 604 in so far as the same related to surface wiring--in other words, left the old ordinances relating to surface wiring privileges as they had always stood--is a strong indication that by the "Keyes Ordinance" no new legislation relating to surface wiring was intended. (3) Ordinance No. 18680 analyzed by section will disclose that it relates solely to the subject of underground wiring and grants no rights or privileges with respect to surface wiring whatsoever. (a) The law is well settled that the procurement of a charter right from the State for the purpose of operating wires for the production of electricity does not grant such person, corporation or association any permit or franchise to use the streets. State of Missouri, ex rel Laclede Gas Light Company v. Murphy, 170 U.S. 78; 42 Law Edition 955; State of Missouri, ex rel. Laclede Gas Light Company v. Murphy, 130 Mo. 10. (4) In case of doubtful construction grants or franchise or permits to use the public streets must be construed in favor of the public and against the grantee Ransom v. Citizens' Railway Company, 104 Mo. 375; Hannibal & St. Joseph Railway Company v. Missouri River Packet Company, 125 U.S. 260, 31 L.Ed. 731; 4 McQuillin, Municipal Corporations, sec. 1652, and notes; 3 Dillon, Municipal Corporations, sec. 1233, and notes.
(5) The complex growth of the city, increase of use and occupancy of its streets, the increased danger of conveying electricity by surface wires and the history of ordinance legislation show a strong tendency to force such wires under ground, and are against any theory of construction that tends to enlarge and increase franchises for surface or overhead wiring. (6) The contention that because section 604-H required all companies procuring permits to erect wires, etc., in the conduit district to comply with the terms and conditions of articles 2 and 9 of chapter 15 of the Krum Code and all other ordinances in force at the time, gives such persons, corporations and associations surface wiring franchises, is without merit.
Nathan Frank, Chas. W. Bates and I. R. Kelso for respondent, Cupples Station Light, Heat and Power Co.
(1) Respondent complied with all the requirements of ordinance No. 18680, approved September 8, 1896, known as the Keyes Ordinance. The record so shows and the fact is not questioned in this case. (2) The provisions of article 2 of chapter 15 of the Revised Ordinances of the city of St. Louis, after the enactment of the amendatory ordinance No. 18680 (the Keyes Ordinance), granted to all those who complied with their requirements electric wire franchise to use the streets, alleys and public places of the city of St. Louis for the transmission of electricity in serving the public. See provisions of said ordinances, as amended by ordinance No. 18680 in respondent's statement (pages 4 to 20). (3) As bearing upon the construction of these ordinance provisions, we call attention to the following suggestions, in the light of which we believe said provisions should be construed. (a) After the adoption of an amendatory ordinance the amendment forms part of the ordinance amended, and the two form one complete ordinance, and must be read as one in its application to future transactions. (b) In construing an ordinance or statute, if of doubtful meaning, the court will consider, among other things, the whole and every part thereof, taken and compared together, including the title; also ordinance or statute in pari materioe and prior ordinances or statutes. Dart v. Bagley, 110 Mo. 42, 53; Sedalia v. Smith, 206 Mo. 346, 364-365. (c) In contruing an ordinance granting the use of streets for public purposes, a fair and reasonable meaning should be accorded, giving full effect to all the language, discarding none of it as meaningless. Ransom v. Citizens Railway Co., 104 Mo. 375, 380. (d) In construing an act granting the right to contruct a bridge for public purposes over a navigable stream, courts must look to its spirit and reason and purpose. Missouri River Packet Co. v. Hannibal & St. Joseph Ry. Co., 79 Mo. 478, 492. (e) Acts granting franchise rights in streets should be so construed as to prevent monopolies. State ex rel. Laclede Gas Light Co. v. Murphy, 130 Mo. 10, 26. (4) Ordinance No. 18680 (the Keyes Ordinance) was authority from the Municipal Assembly, as required by section 603 of article 2 of chapter 15 of the Revised Ordinances of the city of St. Louis of 1893, granting to respondent, by compliance with its terms, the privilege of placing wires, tubes, cables and electric apparatus along the streets, alleys and public places of the city of St. Louis. (5) The title of ordinance No. 18680 (the Keyes Ordinance) is suffient to justify provisions relating to overhead, as well as underground electric wires and apparatus. See Title of this ordinance, appellant's abstract, p. 36; St. Louis v. Commission & Inv. Co., 226 Mo. 148, 158; St. Louis v. Liessing, 190 Mo. 464, 490; Senn v. Railroad Co., 124 Mo. 621, 627-628; State ex rel. v. County Court, 128 Mo. 427, 440-441; St. Louis v. Tiffel, 42 Mo. 578, 590; St. Louis v. United Rys. Co., 263 Mo. 387, 451-452; State v. Helton, 255 Mo. 170, 180-181; Lynch v. Murphy, 119 Mo. 163, 169-170; State v. McEniry, 269 Mo. 228, 230.
Charles H. Daues and H. A. Hamilton for respondent, The City of St. Louis.
(1) Ordinance No. 18,680, according to its title, was "amendatory of article 2 chapter 15, of 'An ordinance in revision of the ordinances of the city of St. Louis and to establish new ordinance provisions for the Government of said city,' and to properly construe said Ordinance No. 18,680 the same must be read in connection with said article 2 of chapter 15 of the Revised Ordinances of the city of St. Louis of 1893. (2) The construction of Ordinance No. 18,680, in connection with prior ordinances upon the subject of transmitting electricity for light, heat and power purposes throughout the city of St. Louis, authorized the Board of Public Improvements of the city of St. Louis to issue its permit to respondent Cupples Station Light, Heat and Power Company to conduct electric current over wires placed in conduits in the underground district specified in Ordinance No. 18,680, and upon overhead wires contructed upon poles in other portions of the city of St. Louis.
On August 8, 1914, plaintiff commenced this action against Cupples Station Light, Heat & Power Company (hereafter, for brevity, called Cupples Company), and the city of St. Louis by filing a petition, in which, averring the incorporation of the Cupples Company under the general laws of this State, and that the defendant city of St. Louis is a municipal corporation of this State, it is set out that plaintiff is the owner of a certain lot situated on Minerva Avenue, in the city of St. Louis, and that the Cupples Company "is about to erect in front of it, poles whereon to string electric wires carrying a high voltage of electric current," without the consent or approval of plaintiff, and against his wish, and is about to do so with the license, permit and consent of the city of St. Louis, undertaken to be given and granted by the Board of Public Improvements of the city. Plaintiff prays for an injunction restraining the placing, erecting or maintaining of any poles by defendant Cupples Company in front of, adjacent, or contingent to the property of plaintiff pending the hearing of the cause, and...
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