In re Pryor

• Decision Date: 05 October 1895
• Citation: 55 Kan. 724,41 P. 958
• Parties: In the matter of the Petition of W. S. PRYOR for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

41 P. 958

55 Kan. 724

In the matter of the Petition of W. S. PRYOR for a Writ of Habeas Corpus

Supreme Court of Kansas

October 5, 1895

Original Proceeding in Habeas Corpus.

THE statement of the case, made by MARTIN, C. J., is as follows:

Iola is, and at all times hereinafter mentioned was, a city of the third class in Allen county. On July 1, 1886, an ordinance of said city, being No. 268, went into effect, purporting to grant to the Iola Gas and Coal Company, its successors and assigns, the right and privilege of laying and maintaining gas-pipes and mains in the streets, avenues, alleys, parks and public grounds of the city, for the purpose of supplying and conveying gas or other volatile substances for manufacturing, heating, lighting, fuel, domestic, and other purposes. No rates were prescribed, except that the company should not charge the city more than $ 1 per 1,000 cubic feet of gas for lighting the public buildings. It was provided that the gas and coal company should file its written acceptance with the clerk within 10 days, after which said ordinance should become a contract between the city and said gas and coal company. Within the time limited the company duly filed its acceptance. It expended a considerable sum in sinking gaswells, laying pipes, etc., but with indifferent success, the supply of natural gas not being adequate.

On September 12, 1889, the gas and coal company, with the assent of the city, assigned its rights and privileges under said ordinance to W. S. Pryor and Joseph Paullin upon certain terms and conditions, one of which was that said assignees should furnish private familes with gas at a rate not exceeding $ 2.50 per stove per month and 40 cents per month per burner for illuminating purposes. Pryor & Paullin proceeded to sink other wells and improve and extend the plant, and at length obtained an adequate supply of natural gas, which they have been furnishing to the city and its inhabitants at contract rates.

On May 10, 1895, ordinance No. 328 took effect by publication, the same purporting to authorize corporations, firms, companies or individuals, to lay and maintain pipes in the streets avenues, alleys, lawns and public grounds for the purpose of supplying said city and its inhabitants with natural gas for heating and illuminating purposes, and regulating the manner of laying such pipes, the kind and quality of same, and fixing the maximum rates to be charged the consumers of gas therefor, and providing penalties for the violation of the provisions of the ordinance. It was declared unlawful for any person to make collections for gas furnished without filing a written acceptance of the conditions of the ordinance, and the rates fixed for gas for the use of families were very much lower than those named in said assignment to Pryor &amp Paullin, and lower than they had been collecting from consumers. Pryor & Paullin have never filed any written acceptance of the terms of the ordinance, and they have no competitor in the business as yet.

Complaint was made before the police judge that W. S. Pryor had collected from S. Bevington $ 1.50 for each of the months of June and July, 1895, for supplying a No. 8 cook-stove, in violation of said ordinance No 328, which allowed only $ 1 per month, and he was convicted and fined in the sum of $ 30 and $ 18 costs, and was ordered to be committed to the city prison until the fine and costs should be paid. He claims that such imprisonment is unlawful, and asks to be discharged therefrom.

Petitioner discharged.

C. E. Benton, for petitioner; Campbell & Hawkins, of counsel.

H. A. Ewing, for respondent:

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

The only question arising upon the record is whether the city of Iola had authority to fix the rates to be charged for natural gas furnished to private consumers by Pryor & Paullin under the circumstances above stated. In this country, municipal corporations (except the city of Washington) are the creatures of the states in which they are located. They derive their powers from the constitution and the statutes. In Anderson v. City of Wellington, 40 Kan. 173, 19 P. 719, this court has said:

"The power to pass a city ordinance must be vested in the governing body of the city by the legislature in express terms, or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purposes of the corporation -- not simply convenient, but indispensable Any fair and reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied." See, also, 1 Dillon, Mun. Corp. (4th ed.), § 89.

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