Missouri Public Service Co. v. Barton County Elec. Co-op.

• Citation: 353 S.W.2d 818
• Decision Date: 30 January 1962
• Docket Number: No. 7963,7963
• Parties: MISSOURI PUBLIC SERVICE COMPANY, a corporation, Plaintiff-Appellant, v. BARTON COUNTY ELECTRIC COOPERATIVE, a corporation, Curless Building, Inc., and Fun Lanes, Inc., Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 818

353 S.W.2d 818

MISSOURI PUBLIC SERVICE COMPANY, a corporation, Plaintiff-Appellant, v. BARTON COUNTY ELECTRIC COOPERATIVE, a corporation, Curless Building, Inc., and Fun Lanes, Inc., Defendants-Respondents.

No. 7963.

Springfield Court of Appeals, Missouri.

Jan. 30, 1962.

Motions for Rehearing or to Transfer Overruled Feb. 13, 1962.

A. E. Elliott, Nevada, E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for plaintiff-appellant.

Combs & Combs, Lamar, for defendants-respondents.

STONE, Judge.

In this equitable action, plaintiff, Missouri Public Service Company, seeks to enjoin defendants, Barton County Electric Cooperative (hereinafter called the Cooperative), Curless Building, Inc. (hereinafter called Curless), and Fun Lanes, Inc. (hereinafter called Lanes), from erecting or maintaining any facilities for the purpose of enabling the Cooperative to supply electric energy for use in connection with operation of a bowling alley by Curless and Lanes in a newly-constructed building just inside the west corporate boundary of the Village of Lamar Heights, Missouri (hereinafter referred to as the Village). At the close of plaintiff's evidence, the trial court found that plaintiff had 'failed to produce evidence to sustain the allegations of plaintiff's petition or to show that the plaintiff is entitled to the relief prayed' and, upon their motions, entered judgment for defendants, from which plaintiff has appealed.

Plaintiff is a public utility engaged in the production, distribution, transmission and sale of electric energy in certain counties of the State of Missouri, including Barton County where plaintiff operates under a certificate of convenience and necessity granted by the Public Service Commission of Missouri under date of January 18, 1938. The Cooperative, organized under 'The Rural Electric Cooperative Law' [now Chapter 394, RSMo 1959, V.A.M.S.], is engaged in the production, distribution, transmission and sale of electric energy in Barton County and, by reason of its cooperative status, is within the jurisdiction of the Public Service Commission only to the limited extent provided in V.A.M.S. Sec. 394.160. By order of the County Court of Barton County on May 21, 1951, the Village of Lamar Heights was incorporated [V.A.M.S. Sec. 80.020] and its first board of trustees, consisting of five members, was appointed. V.A.M.S. Sec. 80.040. It is said (without contradiction) that the population of the Village was then 'approximately 100'; and, from the last United States census of which we take judicial knowledge [Varble v. Whitecotton, 354 Mo. 570, 190 S.W.2d 244, 246(4); State at inf. McKittrick ex rel. Martin v. Stoner, 347 Mo. 242, 146 S.W.2d 891, 894(11); State ex rel. Alton R. Co. v. Public Service Commission, 334 Mo. 985, 70 S.W.2d 52, 54(6)], we find that in 1960 the inhabitants of the Village numbered 113. The Village lies against, and as if it were a protuberance on, the west side of the City of Lamar. The plat of the Village shows that its corporate limits encompass an irregular area of not less than 320 acres, elongated north and south for a distance of one and one-half miles and lying on both sides of north-and-south U. S. Highway 71. The east boundary of the Village (which is also the west boundary of the City of Lamar) is a serpentine north-and-south line following the meanderings of Muddy Creek and located 100 feet east of the center thereof. The west boundary of the Village is a straight north-and-south line located 256 feet west of, and running parallel with, the center line of Highway 71.

Prior to incorporation of the Village in 1951, plaintiff had rendered electric service to inhabitants of the area and, after incorporation, continued to do so. Plaintiff sought and (so it insists) obtained 'a non-exclusive franchise' in the Village 'by enactment and approval of Ordinance No. 1' (hereinafter referred to as the ordinance) at a meeting of the board of trustees of the Village held on March 27, 1953, and by plaintiff's subsequent written acceptance of the ordinance on or about April 3, 1953. On timely objection, the ordinance was excluded from evidence by the trial court because the minutes of said meeting of the board of trustees did not reflect compliance with the mandatory requirements of V.A.M.S. Sec. 80.110 that 'no bill shall become an ordinance unless on its passage a majority of all the members of the board of trustees vote therefor, and the yeas and nays be entered upon the journal.' Of this, more anon. We note briefly that the basic grant, which the ordinance purported to bestow upon plaintiff, its successors and assigns, was 'the right, privileges and authority to construct, maintain and operate within the corporate limits . . . of the Village . . . an electric light, heat and power system in, along, over, under and across the streets, avenues, alleys and public places in said municipality for the transmission, distribution and sale of electric energy, together with the right, privilege and authority to erect, construct, maintain and operate all necessary poles, conductors, wires, conduits and apparatus in, along, over, under and across said streets, avenues, alleys and public places for such purposes.' Other sections of the ordinance provided that the foregoing grant should remain in full force and effect for a term of twenty years, and that, 'as additional consideration of the rights and privileges granted' and in lieu of all taxes other than ad valorem taxes, plaintiff would, by acceptance of the ordinance, become obligated to pay to the Village, upon computations at stated times, five per cent of the gross revenue derived by plaintiff from electric service in the Village, excluding revenue derived from municipal service or industrial consumers.

Although the 'franchise' which the ordinance purported to confer was essentially a grant of authority to occupy the streets, avenues, alleys and public places in the Village ¹ for the contemplated purpose of enabling plaintiff to supply the inhabitants of the Village with electric energy, the only traveled or platted ways in the Village were north-and-south U. S. Highway 71, intersecting east-and-west U. S. Highway 160, and one road branching off Highway 71--'we call it a street' said the chairman of the board of trustees. However, regardless of the nature or extent of the benefit anticipated by or accruing to plaintiff by reason of purported enactment of the ordinance, thereafter plaintiff made and the Village accepted, the periodic five per cent payments provided by the ordinance. In the municipal records before us, these payments were identified at different times as a 'royalty,' as an 'allowance for the use of streets and alleys,' and as a 'commission.' But, by whatever names they were designated, the payments constituted in effect the sole source of income for the Village (the only other income after March 27, 1953, having been $8 from 'cash contributions' reported on October 26, 1953); and, after rumors of the controversy brewing between the parties to this action had come to the then trustees, their apparent gratitude for plaintiff's payments was reflected by this entry in the minutes of their meeting held on August 8, 1960: 'The five per cent commission we are receiving from the Missouri Public Service Co. has certainly been helpful and all the trustees agree that Missouri Public Service Co. has rendered us satisfactory service.'

On July 18, 1960, Curless acquired a rectangular tract with a frontage of 331 feet, north and south, along the west side of Highway 71 inside the corporate limits of the Village, and with a depth of 397 feet 5 inches, east and west. Since the front or east line of the Curless tract (which is also the west line of the highway right of way) is 60 feet west of the center line of Highway 71 and since the west corporate boundary of the Village is only 256 feet west of the highway center line, the front 196 feet of the Curless tract is inside the Village while the remainder of that tract (i. e., the back or west 201 feet 5 inches) is outside. When this action was instituted on August 11, 1960, there was being constructed on the Curless tract a building approximately 150 feet long, north and south, and 52 feet deep, east and west, so situated that it was entirely inside the Village but its rear or west side was only 17 feet east on the west corporate boundary of the Village. This litigation was precipitated by the Cooperative's action in constructing a 'new power line 2050 feet long' to 'a dead-end pole' set on the Curless tract behind or west of the new building at a point only 21 feet outside or west of the west boundary of the Village, at which pole the Cooperative sold, metered and delivered electric energy for use in the new building inside the Village. Plaintiff's theory is that it has a franchise by virtue of the enactment of the ordinance and plaintiff's acceptance thereof; that, although such franchise is not exclusive in that the Village might grant similar rights to another, it is exclusive against all who may assume to exercise such rights without legal authority; that, as the holder of such franchise, plaintiff is entitled to injunctive protection against all illegal competition; and that the action of instant defendants falls within that prohibited category. ²

However, as plaintiff recognizes, this theory depends upon the existence and validity of the ordinance which is said, upon acceptance, to have conferred and constituted the franchise. V.A.M.S. Sec. 80.080 applicable to towns and villages imposes upon the board of trustees the requirement that 'they shall keep a journal of their proceedings.' This is a mandatory duty, and the acts and ordinances of a village are evidenced, and may be established, only by the entries and record in the journal. ³ It 'is the one indispensable record of birth and existence. It is the book of...