Missouri Power & Light Co. v. City of Pattonsburg

• Decision Date: 21 February 1939
• Docket Number: 35634
• Citation: 125 S.W.2d 20,343 Mo. 1128
• Parties: Missouri Power & Light Company, a Corporation, Appellant, v. City of Pattonsburg et al
• Court: Missouri Supreme Court

125 S.W.2d 20

343 Mo. 1128

Missouri Power & Light Company, a Corporation, Appellant, v. City of Pattonsburg et al

No. 35634

Supreme Court of Missouri

February 21, 1939

Appeal from Davies Circuit Court.

Affirmed.

Dean H. Leopard and Anderson, Gilbert, Wolfort, Allen & Bierman for appellant.

(1) After the ordinance authorizing the application for loan and grant from the United States Government, and the appointment of Archer & Company as engineers and the acceptance and adoption of the plans submitted by Archer & Company and then the vote on the bonds, the Board of Aldermen had no right to change the plans to a different system. Jones v. Paving Co., 174 Mo.App. 393; City v. Collier, 68 Mo.App. 483; City v. Bacon, 144 Mo.App. 476; Chicago Heights v. Angus, 267 Ill. 628; Beers v City, 177 N.W. 502, 43 S.D. 14; Hayes v. City, 207 P. 607. (2) The ordinance submitting to the vote of the people confers no authority to issue bonds or construct a plant, because it did not follow Section 12a of Article X of the Constitution of Missouri in the submission. That section does not authorize the aldermen to decide in advance whether to purchase or construct, but after the vote the city officials decide on the method of acquisition. State ex rel. v. Allen, 183 Mo. 291. (3) The city officials were guilty of an abuse of discretion in proceeding to construct a plant, after the Public Works Administration had refused the loan and grant because the construction of a plant was not economically sound, without a resubmission to the people. At the time the vote was taken it was known, and contemplated that the economic desirability must be passed upon by the PWA and that, if uneconomic, the plant would not be built. Abuse of discretion voids action by municipal authorities. Corrigan v. Gage, 68 Mo. 545; Prairie Pipe Line Co. v. Village, 300 S.W. 298; State ex rel. v Burch, 186 Mo. 219. (4) In furnishing electric facilities a city acts in a proprietary, not a governmental, capacity. Riley v. City, 258 Mo. 671; Thompson v. City, 17 S.W.2d 960; Blair v. Byers, 35 F.2d 326. And a city is within the definition of an electrical corporation (above cases and Ohio v. Helvering, 78 L.Ed. 911) and therefore requires a certificate of convenience and necessity before it can construct and operate an electric system. Secs. 5122, 5193, R. S. 1929. And the holder of a certificate can enjoin one attempting to function without a certificate. Frost v. Oklahoma Corp. Comm., 278 U.S. 515, 73 L.Ed. 488. (5) Cities act as proprietors, not as governments, in furnishing electric facilities (see cases under Point 4) and the Public Service Commission Act was designed to prevent useless competition. State ex rel. City v. Pub. Serv. Comm., 82 S.W.2d 110. And the utility cannot discontinue service without authority from the commission. Parkville Oil & Gas. Co., 6 Mo. P. S. C. 689.

Gillihan & Gillihan, Charles D. Brandom and R. H. Musser for respondent.

(1) The board of aldermen submitted to the voters of Pattonsburg, only the proposition to vote $ 50,000 by Ordinance No. 126. Sec. 12a, Art. X, Mo. Const.; Art. VIII, Chap. 38, R. S. 1929; Secs. 7016, 7028, 7030, R. S. 1929. State ex rel. v. Johnson, 50 S.W.2d 121, 330 Mo. 452; State ex rel. Canton v. Allen, 178 Mo. 555; Bank v. Howe, 56 Mo. 59; Palmer v. Liberal, 64 S.W.2d 267; Detroit United Ry. v. Detroit, 41 S.C. 285, 255 U.S. 171; Denver v. Trust Co., 229 U.S. 123, 33 S.Ct. 657. (2) Under the admissions of appellant's second amended petition all acts complained of, had been fully accomplished prior to the filing of said petition and all proceedings therein, so that the issues presented, if any, only constitute a moot case, and the petition is insufficient for the court to grant it any relief thereon. Fugel v. Becker, 2 S.W.2d 743; Gibson v. Powell, 96 Mo.App. 685; Realty Co. v. St. Louis, 282 Mo. 197; Shurlay v. Black, 119 N.E. 618. (3) The city of Pattonsburg had constitutional and statutory authority to call an election and to vote the $ 50,000 of bonds for its exclusive ownership of an electric lighting plant and distributing system, and this authority existed by both constitutional and state grant of power, and it is not subject to the public service commission law as to a grant of a certificate of convenience and necessity, and the appellant is merely raising a collateral issue, immaterial in this case, as if the city of Pattonsburg transcends its authority, this can only be heard by quo warranto proceedings, at the instance of the State's legal officers. Art. XIII, Chap. 7, R. S. 1929; State ex inf. v. L. & P. Co., 246 Mo. 665; High Extraordinary Rem., sec. 695; 51 C. J. 345; Ferris Ex. Leg. Rem., 165, sec. 144; 22 R. C. L., sec. 10, p. 670; State v. Birmingham Water Works, 185 Ala. 388, 64 So. 23; Williams v. Riley, 50 S.Ct. 63, 280 U.S. 78. (4) There is no authority for the assertion that the Public Service Commission Law supercedes or wipes out the constitutional authority, and the grant by the State to municipalities, to own, operate and control their own utilities. Frost v. Corporation Comm., 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 488; Pudget Sound P. & L. Co. v. Seattle, 291 U.S. 619, 78 L.Ed. 1025.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant, Missouri Power & Light Company, filed this suit in the Circuit Court of Davies County, seeking an injunction, against the city of Pattonsburg and its officials, to restrain the letting of contracts for the construction of an electric light system, the issuance of bonds, the levying of taxes for the payment of the bonds, the operation of the plant and for such other relief as the court may deem proper.

The defendants filed a demurrer to the petition alleging that the petition did not state facts sufficient for a court of equity to grant any of the relief prayed for. The trial court sustained the demurrer and appellant declined to plead further. Judgment was entered dismissing the petition, whereupon the plaintiff appealed.

Appellant did not offer to give a bond or seek a temporary injunction. Pending a hearing of the case the city proceeded to the construction of the plant. Appellant filed a second amended petition wherein it was stated that the bonds had been sold, the plant constructed and in operation. Appellant contends that the election at which the bonds were authorized was void. It is argued that Section 12a, Article X, of our Constitution, authorizes the city to submit to the voters the question of becoming indebted "for the purpose of purchasing or constructing . . . electric or other light plants;" that the question submitted to the voters in this case authorized the issuance of bonds in an amount of $ 50,000 for the purpose of constructing an electric plant, but did not include the alternative of purchasing a plant. It is argued that the constitutional provision "does not authorize the aldermen to decide in advance whether to purchase or construct, but after the vote the city officials decide on the method of acquisition." Our search has not revealed any case where such contention has been made. The case of State ex rel. City of Columbia v. Allen, 183 Mo. 283, 82 S.W. 103, is cited as authority. In that case the city of Columbia submitted to the voters the question of issuing bonds for the purpose of purchasing a light and water plant and for the construction of such plant. The contention was made that the question was submitted in the alternative and therefore the election was void. But this court held that the question submitted was, whether or not to purchase the plant and improve it. The court held that this could be done. In the course of the opinion the court referred to the case of State ex rel. Town of Canton v. Allen, 178 Mo. 555, 77 S.W. 868, where the question was submitted in the alternative, and held that so submitting the question did not vitiate the election. In State ex rel. Columbia v. Allen, supra, the court said:

"A kindred contention was made in the case of State ex rel. Town of Canton v. Allen, 77 S.W. 868, and it was held by this Court en Banc that it was competent to submit such a proposition in the alternative. We think that case disposes of this point. Here the proposition is one only; i. e., to buy the old waterworks and electric plant and improve them." (Italics ours.)

So the case...