Jackson County Light, Heat & Power Company v. City of Independence
| Decision Date | 15 February 1915 |
| Citation | 175 S.W. 86,188 Mo.App. 157 |
| Parties | JACKSON COUNTY LIGHT, HEAT & POWER COMPANY, Appellant, v. THE CITY OF INDEPENDENCE, MISSOURI, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.
Judgment reversed and cause remanded.
Paxton & Rose for appellant.
John F Thice and A. C. Southern for respondent.
This is a suit by appellant against the city of Independence to recover a deposit of $ 5000 made with the city by appellant under the terms of an ordinance submitting to the voters of said city a franchise for the furnishing and sale of artificial and natural gas. The deposit was required to insure appellant's performance of the conditions of said ordinance when ratified by the voters and accepted by the Gas Company. The ordinance was duly ratified at an election called for that purpose, the franchise thereby granted was duly accepted and the deposit was made.
Appellant's claim is that having performed the conditions of said franchise it is entitled to the return of it deposit. The city's contention is that appellant is not entitled to a return thereof because of a failure to perform one of the terms and conditions of the franchise, namely, the duty to bring natural gas to said city and furnish it to the inhabitants thereof. The city takes the position that the terms of the franchise bind the appellant to furnish natural gas at all events; while appellant says it was required to do this only in the event that such was reasonably possible, and offered evidence clearly tending to show that it was not possible to obtain it. The trial court construed the franchise to be as the city claimed, and sustained a demurrer to appellant's evidence.
Each side seems to think the contract plain and unambiguous and that by its explicit terms it fully supports their respective contentions. We think the fact that the parties entertain these diametrically opposite views as to the meaning of the contract, as well as the wording of the contract itself justifies us in taking into consideration not merely the whole contract, giving effect to every part thereof, but also the circumstances surrounding the parties, the nature of the contract and its subject-matter, in the endeavor to get at its true meaning, effect and intention. The cardinal rule in construing a contract is to ascertain its true intent and enforce that. If the language employed is so plain that there can be but one meaning to it, then of course there is no office to be performed by subsidiary aids to construction. [St. Louis v. St. Louis, etc., R. Co., 228 Mo. 712, l. c. 736.] But a contract which gives rise to such divergent views as those entertained by the parties to the one before us is certainly not one so explicit as to leave no occasion or authority for calling to our help such subsidiary aids in arriving at its proper construction. Therefore, keeping in mind that the entire language chosen by the parties to express their meaning is the highest and most powerful authority in the matter, we may, in addition thereto, look at all the circumstances of the case, the nature of the matter involved, the situation and relation of the parties, and the purpose sought to be accomplished. [Laclede Const. Co. v. Moss Tie Co., 185 Mo. 25, l. c. 63; Del Bondio v. Dold Packing Co., 79 Mo.App. 465, l. c. 471; Carney v. Chillicothe Water and Light Co., 76 Mo.App. 532, l. c. 536.]
The ordinance embodying the terms of the franchise or contract under which the deposit was made, was passed July 17, 1906.
At and prior to that time, the appellant, under the name of the Independence Gas and Coke Company, was furnishing artificial gas to the city under a franchise having sixteen years to run. The charges provided therein were $ 1.35 per thousand cubic feet so long as the annual consumption did not exceed thirty million cubic feet per year, $ 1.25 per thousand when such consumption was between thirty million and fifty million cubic feet, and $ 1.10 per thousand when the annual sales exceeded fifty million cubic feet.
Shortly prior to this, natural gas had been discovered in Kansas and Oklahoma in such quantities as that it could be piped considerable distance to cities desiring to use it. The Kansas Natural Gas Company had a pipe line coming to Kansas City and natural gas had already been turned on in Kansas City, Kansas, and was soon to be turned on in Kansas City, Missouri. It was thought there was a chance for Independence to get natural gas from this source as soon as Kansas City was supplied. But a greater chance appeared to lay in the fact that gas had been discovered at Stanley, Kansas, about twenty miles from Independence; and while Independence would require one million cubic feet a day and the wells at Stanley were producing only 300,000 feet per day, it was confidently hoped and thought that the sinking of additional wells would secure enough gas to supply the needs of the defendant city.
The officers of appellant took the members of the city council over to Stanley, and gauged the wells in their presence and let them see just what was there, and the prospect for getting an adequate supply of natural gas. Appellant had no gas wells of its own and all parties knew it had none, nor did it pretend to own any.
Thereupon the ordinance embodying the contract and new franchise was drawn. It ran for twenty years from the day said ordinance became effective, and granted permission to appellant to construct, maintain, and operate gasworks in the city, to lay pipes in the streets and to furnish through such pipes natural or artificial gas during the whole period of that time. The charge for artificial gas should not exceed $ 1.35 per thousand cubic feet for the first five years of the franchise, $ 1.25 for the next five years, and $ 1.10 for the remainder of the term, with a discount of ten cents per thousand on payment of bills by the tenth of each month. For natural gas the charge was not to exceed twenty-five cents per thousand with a ten per cent increase if bills were not paid by the tenth of each month. If at any time the supply of natural gas showed signs of failing or be insufficient to supply domestic wants, the gas company had the privilege of shutting off wholly or in part the supply for manufacturing or power purposes.
By section 7, appellant was required to manufacture and furnish a full and sufficient supply of artificial gas of not less than eighteen candle power to meet the demand so long as artificial gas was generally used in the city.
Section 9 of said ordinance granted to appellant the right to sell and distribute, or sell or distribute natural or artificial gas to the inhabitants of said city whether the source of supply came from within or without the corporate limits of the city, and to pipe, sell, and distribute, or sell or distribute, natural or artificial gas to the inhabitants of Jackson county outside of Independence even though the source of supply was within the corporate limits of said city.
Section 12 of said ordinance provided that
By section 14, appellant was required to "deposit with the city treasurer of the city of Independence, Missouri, the sum of five thousand ($ 5000) dollars to insure the faithful performance of the provisions of this ordinance on its part, and in case of failure or refusal on the part of said grantee to keep and perform all the provisions and conditions of this ordinance on its part, it shall forfeit to the city of Independence the sum of five thousand ($ 5000) dollars deposited as aforesaid as the agreed and liquidated amount of damages for such failure or refusal to perform the conditions of this ordinance; provided further that any delays occasioned by injunction or other legal proceedings or by strikes or labor troubles or unavoidable accidents shall not be counted as any part of the time herein mentioned for the performance of any act under this ordinance, or other cause beyond the control of the grantee."
Section 15...
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