Planned Indus. Expansion Authority of City of St. Louis v. Southwestern Bell Tel. Co.

• Decision Date: 09 March 1981
• Docket Number: No. 61897,61897
• Citation: 612 S.W.2d 772
• Parties: PLANNED INDUSTRIAL EXPANSION AUTHORITY OF the CITY OF ST. LOUIS et al., Respondents, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. The CITY OF ST. LOUIS, MISSOURI, Respondent.
• Court: Missouri Supreme Court

Page 772

612 S.W.2d 772

PLANNED INDUSTRIAL EXPANSION AUTHORITY OF the CITY OF ST.

LOUIS et al., Respondents, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. The CITY OF ST. LOUIS, MISSOURI, Respondent.

No. 61897.

Supreme Court of Missouri, En Banc.

March 9, 1981.

Thad Hollie, Jr., St. Louis, for appellant.

Irvin Dagen, St. Louis, for respondents.

Robert C. McNicholas, St. Louis, for third party-defendant.

MORGAN, Justice.

The trial court entered what it designated as a Partial Summary Judgment wherein it declared that § 392.080, RSMo (as amended by Laws 1974, p. 892, § 1), was unconstitutional and ordered that said judgment be considered final for purposes of appeal; and, all parties agree that our present review is limited to those constitutional questions flowing therefrom.

The suit itself involves a dispute among the parties ¹ as to the ownership of portions of certain streets and alleys within the City.

Prior to the month of June 1978, PIE and LCRA developed a plan whereby several blocks in the City were to be razed and redeveloped under a project known as the DeSoto-Carr Urban Renewal Program. In support and furtherance thereof, the City passed three ordinances purporting to convey to PIE the following described real estate:

All the property in City Blocks 543, 544 and 545 in the City of St. Louis, including vacated portions of Seventeenth Street, between Cole Street and Dr. Martin Luther King Drive, and the east/west alleys in City Blocks 543, 544 and 545.

Bell, perhaps as early as 1897, had laid underground cables and conduits beneath some or all of the streets and alleys described in the vacating ordinances; which, as presently constructed and used, allegedly constitute a major feeder run of Bell's Chestnut Central Office at 1010 Pine Street.

PIE requested Bell to remove said facilities. Claiming a "real property public easement" in said lands under § 392.080 (as amended in 1974), Bell refused to relocate the same absent an agreement by PIE to reimburse Bell for all costs incurred. Thereafter, it was agreed that PIE would seek a declaratory judgment to resolve the dispute and advance any relocation costs upon condition that Bell would refund such payments in the event PIE obtained a favorable judgment. In an interlocutory memorandum opinion, the trial court (Judge Godfrey presiding) declared that PIE was vested with clear and unencumbered title to the "vacated land" and that § 392.080 was unconstitutional insofar as it purported to create a vested property interest in Bell without due process of law, but nevertheless did grant Bell leave to file a third party action against the City.

Bell did file its third-party petition against the City seeking a declaration that Bell indeed was possessed of a "real property public easement" in said streets and alleys and that the vacating ordinances were void. By counterclaim, the City sought a declaration that § 392.080 was unconstitutional in the following respects: (1) the statute is an ex post facto law violative of Art. I, § 13, Mo.Const.; (2) the statute violates the due process clause of Art. I, § 10, Mo.Const., as it affects a taking of private property without just compensation; (3) the 1974 amendment adding the "real property public easement" language rendered the whole section violative of Art. III, § 23, Mo.Const., because it contains more than one subject. Upon motion of the City, the trial court (Judge Geary presiding) entered what was designated as a partial summary judgment in favor of the City by accepting all of its constitutional challenges to the statute; and, as authorized, made that judgment final for purposes of appeal.

Based upon the record presented, and viewed in the light most favorable to Bell, we must determine if the trial court properly found that there was no genuine issue of fact to be resolved. Scott v. Thornton, 484 S.W.2d 312(1) (Mo.1972); E. O. Dorsch Electric Co. v. Plaza Construction Co., 413 S.W.2d 167(2) (Mo.1967). The ultimate question thus becomes whether the trial court correctly concluded that § 392.080 could not withstand the City's constitutional attacks; and resolution thereof must be made with an awareness of the long established rule that statutory enactments are accorded a presumption of validity. Prokopf v. Whaley, 592 S.W.2d 819(7) (Mo. banc 1980); McKay Buick, Inc. v. Love, 569 S.W.2d 740(1) (Mo. banc 1978).

The statute in question reads as follows:

Companies organized under the provisions of sections 392.010 to 392.170, for the purpose of constructing and maintaining telephone or magnetic telegraph lines are authorized to set their poles, piers, abutments, wires, and other fixtures along, across or under any of the public roads, streets and waters of this state, in such manner as not to incommode the public in the use of such roads, streets and waters; provided, any telegraph or telephone company desiring to place their wires, poles, and other fixtures in any city, they shall first obtain consent from said city through the municipal authorities thereof;

(The 1974 amendment added the following language:)

and provided, further, that the acceptance, use, or continued use of this right shall create a real property public easement in the public roads, streets and waters in favor of the accepting telephone or magnetic telegraph company so long as it is used for public utility purposes, subject only to public use and the rights of the cities as set out above, and such easement shall not terminate or be extinguished by any vacation, abandonment or subsequent sale by the state or any agency or commission thereof; however, nothing contained herein shall alter the authority of the state highway commission to require the alteration or removal of such facilities pursuant to section 227.240, RSMo, nor entitle the owner of the facilities to reimbursement for the cost of altering or removing such facilities pursuant to an order of state highway commission under section 227.240, RSMo.

We first consider the trial court's decision that said section contravenes the proscription against ex post facto laws found in § 13 of Article I of the Missouri Constitution, which provides: "That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted."

In Dye v. School Dist. No. 32, 355 Mo. 231, 195 S.W.2d 874, 879 (1946), we said that:

A retrospective law is one that relates back to, and gives to a previous transaction, some different legal effect from that which it had under the law when it occurred. A statute is not retrospective merely because it relates to antecedent transactions, where it does not change their legal effect.

In Willhite v. Rathburn, 332 Mo. 1208, 61 S.W.2d 708, 711 (1933), it was said that:

The constitutional inhibition against laws retrospective in operation ... does not mean that no statute relating to past transactions can be constitutionally passed, but rather that none can be allowed to operate retrospectively so as to affect such past transactions to the substantial prejudice of parties interested. A law must not give to something already done a different effect from that which it had when it transpired.

More recently in State ex rel. St. Louis-San Francisco Ry. Co. v. Buder, 515 S.W.2d 409, 410 (Mo. banc 1974), we said:

Those rights which are substantive and which therefore cannot be applied retrospectively are regularly defined as those which 'take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already passed.' Barbieri v. Morris, 315 S.W.2d 711, 714 (Mo.1958)....

The City maintains before this Court, as it did before the trial court, that § 392.080 is retrospective in its operation because it purports to convert a "permissive use" of a public street easement into a "real property public easement." Reliance is placed primarily upon this Court's decision in Franke v. Southwestern Bell Telephone Company, 479 S.W.2d 472 (Mo.1972), wherein the question was whether or not Bell was possessed of an easement for its facilities in a public highway easement after the easement grantor dispossessed itself of all ownership rights in the effected lands. Therein, at 476-77(2-3), the Court said:

Since Bell had only a license from the Highway Commission to use land under control of the Commission, it follows that Bell could have no right by virtue of such license after the Commission's relinquishment and deed of its right, title, and interest (and control) to plaintiffs. The situation is akin to that in State ex rel. State Highway Comm. v. Union Electric Co., 347 Mo. 690, 148 S.W.2d 503. Union Electric was permitted to place its lines in right of way acquired through condemnation by St. Louis Public Service Company. The right of way was later abandoned and title to it returned to the abutting owners. Thereafter the Highway Commission condemned the abandoned right of way as a right of way for highway purposes. Union Electric claimed an entitlement to the condemnation award contending that it had acquired an easement in the premises by either the original permit to place its lines on the tract or by prescription. The court denied the claim of Union Electric, holding that 'Since the railroad company had only an easement interest in the land it had no right to grant an additional easement burden * * * beyond the period of use by the railroad for right of way purposes.' 148 S.W.2d l.c. 506(6). Similarly, the judgment according Bell rights in plaintiffs' property cannot stand because it may not be said that Bell received a right from the Highway Commission which outlives the use of the property by the Commission as highway right of way. Bell's status in these circumstances is well described in Nelson v. American Tel. & Tel., 270 Mass. 471, 170...