Public Service Commission of Missouri v. City of Kirkwood

• Citation: 4 S.W.2d 773,319 Mo. 562
• Decision Date: 24 March 1928
• Docket Number: 28253
• Parties: Public Service Commission of State of Missouri v. City of Kirkwood, Appellant
• Court: Missouri Supreme Court

4 S.W.2d 773

319 Mo. 562

Public Service Commission of State of Missouri v. City of Kirkwood, Appellant

No. 28253

Supreme Court of Missouri

March 24, 1928

Appeal from Circuit Court of St. Louis County; Hon. John W McElhinney, Judge.

Reversed and remanded (with directions).

Brackman Hausner & Versen for appellant;

Charles M. Polk and Ralph & Baxter, amici curiae.

(1) Municipalities are not required by the Public Service Commission Act to obtain a certificate of public convenience and necessity before installing or beginning the construction of their water systems. Secs. 9038, 10481, R. S. 1919; Childs v. City of Columbia, 87 S.C. 566. (2) The Public Service Commission can only exercise such powers as are expressly conferred upon it. Nothing is left to inference or implication or the exercise of a discretion. State ex rel. United Rys. Co. v. Pub. Serv. Comm., 270 Mo. 442. (3) Municipalities are expressly authorized by law to acquire land or other property beyond their limits to the extent of five miles for use as a water system, and to supply water to other cities, persons and places outside of their corporate limits. Secs. 8474, 9083, R. S. 1919. (4) The term "water corporation" in the statute requiring "water corporations, etc.," to secure a certificate of public convenience and necessity before beginning construction of a plant, when considered in the light of other sections of the Public Service Act, does not include municipalities. Sec. 10481, pars. 3, 16 and 21, Sec. 10411, R. S. 1919. (5) That the Legislature differentiated between the terms "water corporation" and "municipalities" is evidenced by the fact that one was used in contradistinction of the other in various sections of the Public Service Act. Secs. 10481, 10477, subds. 1, 2 and 3; Secs. 10478, 10479, 10480, R. S. 1919.

D. D. McDonald and J. P. Painter for respondent;

Charles M. Polk and Ralph & Baxter, amici curiae.

(1) No water corporation shall begin the construction of a water system, or exercise any right or privilege under any franchise hereafter granted, or under any franchise heretofore granted but not heretofore actually exercised, or the exercise of which shall have been suspended for more than one year, without first having obtained the permission and approval of the commission. Sec. 10481, R. S. 1919. (2) The statute is very broad as to the meaning of "water corporation," "water system," and as to the meaning of "service." Sec. 10411, pars. 21, 26, R. S. 1919. (3) The city, in operating its water system without its corporate limits, does so in a private capacity and is subject in all respects to the laws applicable to a private individual or corporation. Bullmaster v. St. Joseph, 70 Mo.App. 60; Hitchcock St. Louis, 49 Mo. 484; South Carolina v. United States, 199 U.S. 462; Dillon, Mun. Corps., pars. 116, 1303; McQuillan, Mun. Corps., par. 2680; Pond on Public Utilities, par. 6; State ex rel. v. Telephone Co., 189 Mo. 83; 3 Dillon, Mun. Corps., p. 2121; Normal School v. City of Charleston, 271 Ill. 602; St. Louis v. Bell Tel. Co., 96 Mo. 623; U.S. Ship. Board v. W. U. Tel. Co., 13 F.2d 308; Riley v. Independence, 258 Mo. 681. (4) The Commission Law recognizes that a public utility, such as gas, water, car service, etc., is in its nature a monopoly; that state regulation takes the place of and stands for competition. State ex inf. v. Kansas City Gas Co., 254 Mo. 515; State ex rel. v. Public Serv. Comm., 259 Mo. 704. (5) The provisions of the Public Service Commission Act shall be liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities. Secs. 10538, 10412, 10425, par. 1, R. S. 1919; Public Service Comm. v. Frisco Ry., 301 Mo. 157.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

Davis, C.

This is a suit by the Public Service Commission to enjoin defendant, city of Kirkwood, from furnishing water service to persons residing outside the corporate limits of said city unless and until it obtains and receives from the commission a certificate of public convenience and necessity. From a decree and judgment enjoining the defendant from furnishing water to any person outside its limits, except those to whom it furnished water before the Act of April 15, 1913, became effective, until it obtained a certificate of public convenience and necessity from the Public Service Commission, defendant appeals.

Defendant, city of Kirkwood, in St. Louis County, is a city of the fourth class, owning and operating its water system. From 1903 to 1923 it obtained water for its system from the West St. Louis Water & Light Company, discontinuing such purchase in 1923. During this period it supplied water from its system to its own inhabitants and to certain residents beyond the city limits, on Monroe Avenue and on Geyer Road. Such suburban residents were thus obtaining their water supply from Kirkwood when the Public Service Commission Act became effective.

This act became effective April 15, 1913. The Public Service Commission has not and does not contend that defendant was required to secure a certificate of public convenience and necessity in order to supply water to customers defendant had on Monroe Avenue and Geyer Road at the time the act became effective.

In 1923 defendant began serving water outside its city limits to the districts known as Meramec Highlands, St. Joseph's College, Woodbine Heights and Woodbine Heights Subdivision and property adjacent thereto. Since the date of the decree of the Circuit Court of St. Louis County in this case, the properties of the customers above mentioned have been annexed to and now form a part of the city of Kirkwood. Consequently, the Public Service Commission does not now claim that the defendant is required to secure a certificate of public convenience and necessity as to residents whose land has been brought within the city limits by annexation.

By the terms of a contract, dated December 11, 1924, the Lutheran Orphans' Home and other property owners along Manchester Road to the north and northwest of the city limits contributed various sums of money, aggregating $ 16,524.55, to defray the cost of laying a water main west on Manchester Road. The mains were installed by the city under contract in 1925, and became the property of the city. The city is obligated to maintain the water mains and furnish water to the contributors. Fifteen of the said contributors are now being served with water.

Thereafter, on May 22, 1925, the city of Kirkwood attempted to file with the Public Service Commission a schedule of rates and details as to service of water to suburban consumers residing beyond the city limits, but the said commission refused to receive and file the same, returning it to the city, because it had not applied for and obtained a certificate of convenience and necessity and the permission and approval of the commission to furnish water and render service to suburban residents. This controversy involves the right of the city to serve such residents along Manchester Road, beyond its limits, without obtaining the prior consent of the Public Service Commission.

Testimony was admitted over the objection of the defendant to the effect that the St. Louis County Water Company had a franchise in St. Louis County to operate a water system therein, that it had mains and was rendering water service in the territory around and adjacent to the city of Kirkwood and had had negotiations with potential buyers of water in the territory on Manchester Road, west of the city, prior to the service of water to them by said city, and that the said water company protested to the city of Kirkwood against the arrangement entered into by the city with the inhabitants of Des Peres to furnish water to such inhabitants, on the ground that the city had not obtained a certificate of public necessity and convenience to furnish water outside of its corporate limits.

The testimony of Mr. W. H. Henby, president of the St. Louis Water Company, called by the plaintiff, shows that the predecessors of that company constructed a water main on Holmes Avenue in the city of Kirkwood in 1907 or 1908; that it has mains on the Big Bend Road as far west as Geyer Road and southwardly on the Geyer Road, the date these mains were installed not being shown in the record, and that the said water company has no mains now and never had any mains in the Meramac Highlands district, in the Woodbine Heights and Woodbine Heights Addition districts or in the district on Manchester Road west of Denny Road. The territory described is the territory which was outside of the corporate limits of the city of Kirkwood and was being served with water by said city at the time the suit was instituted. The testimony shows that at the time of the institution of these proceedings the St. Louis County Water Company (successor to West St. Louis Water & Light Company) had a franchise in St. Louis County to operate a water system therein, and was supplying water throughout the county; that it had its mains around and adjacent to the city of Kirkwood, and had had negotiations with prospective buyers of water in the territory on Manchester Road, above mentioned, and prior to the beginning of service of water to them by the city of Kirkwood, the St. Louis County Water Company had protested to the city of Kirkwood against the proposed arrangement to be entered into...