Myron Green Cafeterias Co. v. Kansas City

• Decision Date: 08 April 1922
• Citation: 240 S.W. 132,293 Mo. 519
• Parties: MYRON GREEN CAFETERIAS COMPANY et al., Appellants, v. KANSAS CITY et al
• Court: Missouri Supreme Court

240 S.W. 132

293 Mo. 519

MYRON GREEN CAFETERIAS COMPANY et al., Appellants, v. KANSAS CITY et al

Supreme Court of Missouri, First Division

April 8, 1922

Appeal from Jackson Circuit Court. -- Hon. Allen C. Southern, Judge.

Affirmed.

T. A Witten for appellant.

(1) The Public Service Commission having taken over entire control of the manufacture of artificial gas, and the sale, storage and handling in every detail of both artificial and natural gas in accordance with the Public Service Commission Act, the ordinance in question is inoperative and void. Public Service Commission Act, Laws 1913, sec. 69, p. 603; State ex rel v. Pub. Serv. Comm., 270 Mo. 429; Board of Education v. St. Louis, 267 Mo. 356; Linotype Co. v. Hayes, 202 S.W. 303; Hewitt v. Tel. Co., 172 Mo.App. 272; Davis v. Tel. Co., 202 S.W. 292; State v. Looney, 97 S.W. 934; City of St. Louis v. Wortman, 213 Mo. 131; Fleming v. Mexico, 262 Mo. 432; Jewell Tea Co. v. Carthage, 275 Mo. 383; Kansas City v. McDonald, 175 S.W. 917; Thomas Bros. v. Railroad, 188 Mo.App. 22. (2) Because the buying and selling of gas between the Kansas City Gas Company and the consumers is interstate commerce, and the ordinance which limits the amount that can be so bought and sold directly impedes and burdens interstate commerce, and is in violation of the Federal Constitution, Art. I, sec. 8, and in violation of the Federal statutes creating the Interstate Commerce Commission and defining its powers and duties, said ordinance is inoperative and void. Linotype Co. v. Hayes, 202 S.W. 303; Hewitt v. Tel. Co., 172 Mo.App. 272; Davis v. Tel. Co., 202 S.W. 292; State v. Looney, 97 S.W. 934; St. Louis v. Wortman, 213 Mo. 131; Fleming v. Mexico, 262 Mo. 432; Jewell Tea Co. v. Carthage, 257 Mo. 383; Kansas City v. McDonald, 175 S.W. 917; Thomas Bros. v. Railroad, 188 Mo.App. 22; Landon v. Public Utilities Comm., 242 F. 658, 245 F. 950; Western Union Tel. Co. v. Kansas, 216 U.S. 1; Norfolk and Western Railroad v. Pennsylvania, 136 U.S. 114; Pickard v. Car Co., 117 U.S. 34; Robbins v. Taxing Dist., 120 U.S. 489; Le Loup v. Mobile, 127 U.S. 640; Asher v. Texas, 128 U.S. 129; Stotenbroug v. Hennick, 129 U.S. 141; McCall v. California, 136 U.S. 101; Crutcher v. Kentucky, 141 U.S. 471; Buck Stove Co. v. Vickers, 126 U.S. 205; Sioux Remedy Co. v. Cope, 235 U.S. 197; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196. (3) The ordinance cannot be justified as a proper exercise of the police power of the State delegated to Kansas City. The exercise of the police power must always be "consistent with general statutes and the Constitution, both federal and state." 28 Cyc. 693, note, 71; State ex rel. v. Pub. Serv. Comm., 270 Mo. 429; Board of Education v. St. Louis, 267 Mo. 356; St. Louis v. Wortman, 213 Mo. 131; St. Louis v. Klausmyer, 213 Mo. 119; Johnson Grain Co. v. Railroad, 177 Mo.App. 194; Morgan's L. & T. K. S. S. Co. v. Board of Health, 118 U.S. 454; Crutcher v. Kentucky, 141 U.S. 47; M. K. & T. Ry. Co. v. Harber, 169 U.S. 613; Smith v. Alabama, 124 U.S. 465. (4) The answer stated no defense and the court erred in overruling plaintiff's motion in arrest of judgment.

E. M. Harber, M. A. Fyke and Francis M. Hayward for respondent.

(1) (a) The Public Service Commission Act, so far as the case at bar is concerned, applies only to those who furnish natural gas for light, heat or power, but not to those who consume such gas after the same has been delivered, and consequently the exercise of the police power by a city in respect to the manner in which the consumer shall use natural gas is not trenched upon by the state law. Public Service Act, Laws 1913, secs. 67, 68 and 69, pp. 602 to 608; Ex parte Holman, 191 S.W. 1109; Roper v. Greenspon, 198 S.W. 1109. (b) But in no event can there be a conflict between the state law and the ordinance till the Public Service Commission has acted. Arkadelphia Milling Co. v. St. Ry. Co., 39 S.Ct. (U.S.) 237. (2) The distribution of natural gas by the Kansas City Gas Company does not constitute interstate commerce. Western Union Tel. Co. v. Foster, 113 N.E. 192; Kansas City v. Landon, 39 S.Ct. (U.S.) 268. Even if such distribution of natural gas by the Kansas City Gas Company were interstate commerce, still local regulations, when Congress has not acted, enacted in the exercise of the police power of the State in the interest of the public health and safety, have been upheld by the Supreme Court of the United States, notwithstanding the regulations may incidentally or indirectly affect interstate commerce. Covington Ry. Co. v. Covington, 235 U.S. 546, 548; Minnesota Rate Cases, 230 U.S. 402; N. Y., N. H. & H. Railroad v. New York, 165 U.S. 628; Lake Shore & Mich. So. Ry. Co. v. Ohio, 173 U.S. 285; Hennington v. Georgia, 163 U.S. 299; Atlantic Coast Line v. Georgia, 234 U.S. 280; Rasmussen v. Idaho, 181 U.S. 198; Smith v. Ry. Co., 181 U.S. 248; Metcalf v. St. Louis, 11 Mo. 103; Erb v. Morasch, 177 U.S. 584; Crutcher v. Kentucky, 141 U.S. 61; Smith v. Alabama, 124 U.S. 480; Nashville Ry. v. Alabama, 128 U.S. 96; C. M. & St. P. Ry. Co. v. Solan, 169 U.S. 137; Western Union Tel. Co. v. James, 162 U.S. 660; Western Union Tel. Co. v. Milling Co., 218 U.S. 406; Jamison v. Gas & Oil Co., 128 Ind. 550; Ohio Oil Co. v. Indiana, 177 U.S. 206; Oklahoma v. Nat. Gas. Co., 221 U.S. 257; Davis v. Tel. Co., 202 S.W. 294. (3) The city had ample power under its general welfare clause to enact the present ordinance and the same is not inconsistent with any law, State or Federal. Pars. 37 and 41, Sec. 1, Art. III, Charter of Kansas City 1908; Kansas City Gunning Co. v. Kansas City, 240 Mo. 659; St. Louis Gunning Co. v. St. Louis, 235 Mo. 99.

OPINION

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, Missouri. About eighty-five per cent of the gas comes from Oklahoma and fifteen 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 1200 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 forty 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, Article I, 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, 242 F. 658, 245 F. 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, Missouri. 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...