Missouri Valley R. Co. v. Cupples Station Light, H. & P. Co.

• Decision Date: 03 December 1917
• Docket Number: No. 19095.,19095.
• Citation: 199 S.W. 151
• Court: Missouri Supreme Court
• Parties: MISSOURI VALLEY REALTY CO. v. CUPPLES STATION LIGHT, HEAT & POWER CO. et al.

199 S.W. 151

MISSOURI VALLEY REALTY CO. v. CUPPLES STATION LIGHT, HEAT & POWER CO. et al.

No. 19095.

Supreme Court of Missouri, Division No. 1.

December 3, 1917.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

Proceeding by the Missouri Valley Realty Company against the Cupples Station Light, Heat & Power Company and others, commenced before the Public Service Commission, and taken to the circuit court by a writ of review. From a judgment affirming an order of the commission dismissing the proceeding, the Realty Company appeals. Affirmed.

On January 30, 1904, the Missouri Valley Realty Company filed with the Public Service Commission its complaint against the above-named defendants, alleging in substance that complainant is the owner of a lease for a term of 31 years of a certain parcel of real estate situate on Washington avenue in the city of St. Louis, particularly described; that defendants are Missouri corporations, each claiming to be engaged in generating and vending electricity in said city, and that each claims the right to do, and is attempting to do, a public service business therein; that each defendant presented an application to the board of public improvements of said city for leave to construct conduits under the surface of Washington avenue in said city from Fourth street to Eighth street and along and in front of complainant's said property, and that the said board, on the 6th day of January, 1914, without any power so to do, issued a permit authorizing such construction; that by virtue of such permit the defendants are about to disturb the surface of said street in front of complainant's premises, to the great damage to said property and to complainant's business; that neither of the defendants has complied with section 72 of the Public Service Commission Law,¹ requiring a certificate of public convenience and necessity from this commission for the construction of said work, nor with rule No. 14 of this commission, relating to new construction and extension. The relief prayed for is that the commission may make an order on the defendants, and each of them, restraining them from interfering with the surface of Washington avenue between Fourth and Eighth streets, in the city of St. Louis, and from constructing or undertaking to construct and from using or maintaining the conduit, with ducts aforesaid, and commanding them to remove such as have been constructed, and for general relief. By leave of the commission the Union Electric Light & Power Company filed an intervening petition, alleging that it is engaged in the business of generating and vending electricity in the city of St. Louis; that its plant facilities are sufficient to supply electricity to the public for all purposes along Washington avenue between Fourth and Eighth streets; and that it is prepared, ready, and willing to furnish electricity to all persons applying therefor. Further allegations are made substantially as contained in the complaint, as above set out, and the same relief is prayed for.

The defendants filed separate answers, denying certain allegations of the complaint and intervening petition, and alleging their right under their charters and the ordinances, franchises, and authority conferred upon them by said city to construct the conduits on Washington avenue described in the complaint, and further alleging that under the facts stated in the complaint this commission is without jurisdiction in the premises.

The facts, so far as necessary to an understanding of the questions, are as follows:

Complainant is the owner of a leasehold interest in the real estate situated on Washington avenue between Fourth and Eighth streets, as described in the complaint. Prior to and at the time of the effective date of the Public Service Commission Law, and ever since, each defendant was and is an electrical corporation engaged in the business of generating and vending electricity as a public utility in the city of St. Louis, with the consent of said city. The defendants had commenced the digging of a trench on said Washington avenue at the time of the filing of the complaint, and claimed authority so to do under a permit from the board of public improvements of said city. In granting said permit the board of public improvements claimed to be acting under authority of an ordinance of the municipal assembly of said city, known as the "Keyes Ordinances." Intervener is an electrical corporation engaged in generating and vending electricity to the public in said city, and was, at all times mentioned, ready, willing, and able to furnish electricity to all consumers along said Washington avenue between Fourth and Eighth streets.

In the year 1896 the said Keyes Ordinance was duly enacted by the municipal assembly of the city of St. Louis. Under the provisions of this ordinance a certain district, called the underground district, was described and established, which included the street in controversy. The construction of poles and overhead wires for the distribution of electricity was thereafter forbidden in said district, and the existing poles and wires were required to be removed or placed underground within a period of time therein fixed. The construction of conduits for placing such wires underground in said district was authorized only upon permission from the board of public improvements. Said board was required upon application for such authority, or upon its own motion, to designate a day within 90 days after the approval of said ordinance upon which it would consider the matter of constructing conduits in said district, and to give 15 days' notice of the time, place, and object of the meeting and of the streets to be considered. The ordinance does not expressly provide for any subsequent meeting of said board for the consideration of applications for permission to construct conduits in said district. Only such persons and corporations as were authorized by their charters at the time of the passage of the ordinance, or within 90 days thereafter, were entitled to receive a permit from said board to construct conduits and operate wires therein in said underground district. All persons or corporations which failed to appear at the time designated and submit applications and plans as therein required were excluded from the right to construct such conduits and operate wires therein in the streets named in the advertisement and situate within the said district, but were not so excluded from such right in streets in said district not included in the advertisement. As to such streets, it is provided:

"But in reference to all streets, alleys or public places which have not been assigned, or which having been assigned and are not occupied as herein provided, the board of public...