Myron Green Cafeterias Co. v. Kansas City, Mo.

• Decision Date: 08 April 1922
• Docket Number: No. 22126.,22126.
• Citation: 240 S.W. 132,293 Mo. 519
• Parties: MYRON GREEN CAFETERIAS CO. et al. v. KANSAS CITY, MO., et al.
• Court: Missouri Supreme Court

240 S.W. 132

293 Mo. 519

MYRON GREEN CAFETERIAS CO. et al. v. KANSAS CITY, MO., et al.

No. 22126.

Supreme Court of Missouri, Division No. 1.

April 8, 1922.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by the Myron Green Cafeterias Company and others against Kansas City, Mo., and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

T. A. Witten, of Kansas City, for appellants.

E. M. Herber, M. A. Fyke, and Francis M. Hayward, all of Kansas City, for respondents.

JAMES T. BLAIR, J.

Appellants are users, of gas in Kansas City, and commenced this suit to enjoin the enforcement of a city ordinance which prohibited the use of gas pumps and other devices designed to increase the flow of gas beyond that normally due to the pressure in the pipe through which the Kansas City Gas Company furnished gas to them. The Kansas City Gas Company receives the gas from the Kansas Natural Gas Company, which procures natural gas at points of production in Oklahoma and Kansas, and conducts it through pipes to various towns in Kansas and Missouri, including Kansas City, Mo. About 85 per cent. of the gas comes from Oklahoma and 15 per cent. from Kansas. That used in Kansas City is delivered to the Kansas City Gas Company through pipes metered at the city limits, and is by that company sold to about 60,000 consumers. Of these about 1,200 employ devices prohibited by the ordinance in question. The Kansas Natural Gas Company is in the hands of a receiver, appointed by the federal court in Kansas. The court fixed the price of the gas, and the Kansas City Gas Company pays to the Kansas Natural Gas Company 40 per cent. of its receipts from the sale of gas in Kansas City. The Kansas City Gas Company operates under a franchise granted by Kansas City in 1906. The agreed statement of facts shows the ordinance involved was duly passed and approved; that respondents, contend that appellants by employing the devices in question increased the natural flow of gas to the detriment of the great body of gas users in Kansas City, and that the result of the use of such devices was to endanger the health and safety of the people of the city; that respondents were about to begin prosecution, against appellants and others, under the ordinance, and would do so unless restrained; that the federal court has increased the franchise rates. There was testimony of experts to the effect that the use of the gas pumps and devices condemned by the ordinance tended to produce a vacuum in the pipes; that air was thereby drawn into them, and that the mixture thus produced became dangerously explosive, and had frequently resulted in explosions in numerous places in Oklahoma, Kansas, and Kansas City, and that great injury to life, limb, and property is done and threatened thereby.

There is no description of any of the devices and no detailed evidence of the manner of their use. The petition raised several constitutional questions, and alleged that the ordinance invaded the field occupied by the Public Service Commission. The trial court found against appellants and dismissed the petition, and this appeal followed.

Appellants contend the ordinance is void (1) "because it is in direct conflict with the Public Service Commission statute of Missouri, and seeks to invade and usurp the powers and functions of the Public Service Commission"; and (2) "because it is in violation (a) of the federal statute creating the Interstate Commerce Commission and defining its powers, and (b) of section 8, art. 1 of the federal Constitution"; and (3) that the ordinance cannot be justified as a police regulation for these reasons.

I. With respect to the question whether the ordinance is void for conflict with the commerce clause of the federal Constitution, decisions in point are at hand. Appellant relies upon Landon v. Public Utilities Commission (D. C.) 242 Fed. 658; Id. (D. C.) 245 Fed. 950. In that case the question whether the Kansas City Gas Company's activities in selling and distributing to Missouri consumers gas delivered to it by the Kansas Natural Gas Company constituted interstate commerce was one of the turning points of the decision. The Kansas Public Utilities Commission had attempted to fix rates for gas in cities in Kansas in which the situation with respect to the purchase, reception of gas, and the sale and distribution of gas to consumers was essentially the same as that in Kansas City, Mo. It was contended by the receiver of the Kansas Natural Gas Company that the rate fixed was a regulation of and a burden upon interstate commerce. The Missouri Public Service Commission was permitted to become a party because its powers with respect to rate regulation under like conditions in Kansas City and St. Joseph were likely to be affected by the decision. It took an active part in the case. The District Court held, in the decision cited, that "the transportation of gas carried on by the receiver is interstate commerce, and that the character of the business inheres from the beginning of the journey in Oklahoma to the termination thereof at the burner tips in Kansas or Missouri," and that the effort to fix local rates was a direct and undue burden upon interstate commerce. This case was appealed to the Supreme Court, and that court (Public Utilities Commission v. Landon, 249 U. S. loc. cit. 244 et seq., 39 Sup. Ct. 269, 63 L. Ed. 577) took a different view, as follows:

"We think the trial court properly overruled the objections offered to its jurisdiction and nothing need be added to the reasons which it gave. 234 Fed. Rep. 152, 155. But we cannot agree with its conclusions that local companies in distributing and selling gas to their customers acted as mere agents, immediate representatives or instrumentalities of the receivers and as such carried on without interruption interstate commerce set in motion by them.

"That the transportation of gas through pipe lines from one state to another is interstate commerce may not be doubted. Also, it is clear that as part of such commerce the receivers might sell and deliver gas so transported to local distributing companies free from unreasonable interference by the state. American Express Co. v. Iowa, 196 U. S. 133, 143; Oklahoma v. Kansas Natural Gas Co., 221 U. S. 229; Haskell v. Kansas Natural Gas Co., 224 U. S. 217.

"But in no proper sense can it be said, under the facts here disclosed, that sale and delivery of gas to their customers at burner tips by the local companies operating under special franchises constituted any part of interstate commerce. The companies received supplies which had moved in such commerce and then disposed thereof at retail in due course of their own local business. Payment to the receivers of sums amounting to two-thirds of the product of these sales did not make them integral parts of their interstate business. In fact, they lacked authority to engage by agent or otherwise in the retail transactions carried on by the local companies. Interstate commerce is a practical conception and what falls within it must be determined upon consideration of established facts and known commercial methods. Rearick v. Pennsylvania, 203 U. S. 507, 512; the Pipe Line Cases, 234 U. S. 548, 560. The thing which the receivers actually did wan to deliver supplies to local companies. Exercising...