Speas v. Kansas City

• Court: Missouri Supreme Court
• Writing for the Court: Henwood
• Citation: Speas v. Kansas City, 44 S.W.2d 108, 329 Mo. 184 (Mo. 1931)
• Decision Date: 01 December 1931
• Docket Number: No. 29350.,29350.
• Parties: JOHN H. SPEAS and THOMAS J. CLARK, Appellants, v. KANSAS CITY and H.F. McELROY and WILLIAM F. FLEMING.

44 S.W.2d 108

JOHN H. SPEAS and THOMAS J. CLARK, Appellants, v. KANSAS CITY and H.F. McELROY and WILLIAM F. FLEMING.

No. 29350.

Supreme Court of Missouri.

Division Two, December 1, 1931.

Appeal from Jackson Circuit Court. — Hon. T.J. Seehorn, Judge.

AFFIRMED.

Halbert H. McCluer and Wm. H. Wilson for appellants.

The court erred in sustaining defendants' demurrer to the petition. State ex rel. Kansas City v. Orear, 277 Mo. 303; State ex rel. v. Switzler, 143 Mo. 287; Simmons Medicine Co. v. Ziegenhein, 145 Mo. 368; Deal v. Mississippi Co., 107 Mo. 464; State ex rel. Chouteau v. Leffingwell, 54 Mo. 475; State v. Kelley, 71 Kan. 811; Re Municipal Fuel Plants, 155 Mass. 601; Leesburg v. Putnam, 103 Ga. 110; Baker v. Grand Rapids, 142 Mich. 687; Hayward v. Redcliff, 20 Colo. 33; Bloomsburg Imp. Co. v. Bloomsburg, 215, Pa. 452; Loan Assn. v. Topeka, 20 Wall. 655; State ex rel. v. Thompson, 149 Wis. 488; People ex rel. v. Salem, 20 Mich. 452; State v. Butler, 178 Mo. 272; Farwell v. Seattle (Wash.), 86 Pac. 217; Manning v. City of Devils Lake, 13 N.D. 47, 99 N.W. 51, 65 L.R.A. 187; Jacksonport v. Watson, 33 Ark. 704; Quinby v. Consumers' Gas Trust Co., 140 Fed. 362; East Newark v. N.Y. & N.J. Water Supply Co., 67 N.J. Eq. 265, 57 Atl. 1051; Haupts' Appeal, 125 Pa. 211; Crofut v. Danbury, 65 Conn. 294, 32 Atl. 365; Joplin v. Leckie, 78 Mo. App. 8; City of Independence v. Cleveland, 167 Mo. 388; St. Louis v. Dreisoerner, 243 Mo. 223; Huesing v. City of Rock Island, 128 Ill. 465; Fallbrook Irrigation District v. Maria King Bradley, 164 U.S. 112; Becker v. La Crosse, 99 Wis. 414, 67 Am. St. 874.

George Kingsley and Marcy K. Brown, Jr., for respondents.

(1) Kansas City has power and authority to acquire, construct and operate a waterworks system located out of the State of Missouri and has power to sell water to its own citizens, to consumers outside the city limits in the State of Missouri and to consumers outside the limits of the State of Missouri. Sec. 16, Art. IX, Constitution of Missouri; Sec. 12, Art. X, Constitution of Missouri; Sec. 8854, Laws (Ex. Sess.) 1921, p. 110; State ex rel. Otto v. Kansas City, 310 Mo. 542; Pars. 8, 11, 12 and 54, Sec. 1, Art. 1, Kansas City Charter; Sec. 20, Art. 3, K.C. Charter; Sec. 21, Art. 3, K.C. Charter; Sec. 25, Art. 3, K.C. Charter; Sec. 44, Art. 3, K.C. Charter; Secs. 9079, 9083, R.S. 1919; St. Louis v. Liessing, 190 Mo. 464; St. Louis v. West. Union Tel. Co., 149 U.S. 465; State ex rel. v. Field, 99 Mo. 352; McGhee v. Walsh, 249 Mo. 266; Mullins v. Kansas City, 268 Mo. 444; Kansas City v. Field, 270 Mo. 500; Sluder v. Transit Co., 189 Mo. 107; Meier v. St. Louis, 180 Mo. 391; St. Louis v. Fisher, 167 Mo. 654, affirmed, 194 U.S. 361; Siemens v. Shreeve, 296 S.W. 415; Stanton v. Thompson, 234 Mo. 7; St. Louis v. Delassus, 105 Mo. 578; St. Louis v. Klausmier, 213 Mo. 119; Kansas City v. Fairfax Drainage Dist. of Wyandotte County, 34 Fed. (2d) 357; State ex rel. v. Joslin, 116 Kan. 615; Omaha v. Omaha Water Co., 218 U.S. 180, 54 L. Ed. 991, 30 Sup. Ct. Rep. 615; Pikes Peak Power Co. v. Colorado Springs, 44 C.C.A. 333, 105 Fed. 1; Fellows v. Los Angeles, 151 Cal. 52, 90 Pac. 137; Colorado Springs v. Colorado City, 42 Colo. 75, 94 Pac. 316; Larimer County v. Ft. Collins, 68 Colo. 364, 189 Pac. 929; Henderson v. Young, 119 Ky. 224, 83 S.W. 583; Simson v. Parker, 190 N.Y. 19, 82 N.E. 732; Mayo v. Dover & F.V. Co., 96 Me. 539, 52 Atl. 62; Pub. Serv. Com. v. Kirkwood, 4 S.W. (2d) 773; Muir v. Murray City, 186 Pac. 433; Rogers v. Wickliffe, 94 S.W. 24; Hilligan v. Miles City, 51 Mont. 374, 153 Pac. 276; L.R.A. 1917, 1916C, 395; Board of Com. of Larimer County v. Ft. Collins, 189 Pac. (Colo.) 930; Langdon v. Walla Walla, 193 Pac. (Wash.) 1. (2) The court may take judicial notice of every fact necessary to the complete determination of this case. Sublett Bank v. Fitzgerald, 168 Ill. App. 240; In re Wilson, 81 Neb. 809; Vail v. McGuire, 96 Pac. (Wash.) 1042; The Apollon, 9 Wheat. (U.S.) 362; Daly v. Old, 99 Pac. (Utah) 460; In re Krauthoff, 191 Mo. App. 149.

HENWOOD, J.

This case comes to the writer on reassignment.

The plaintiffs, as resident taxpayers of Kansas City, Missouri, seek to have adjudged unconstitutional all provisions of said city's charter by which it and its officers and agents are authorized to supply water to non-residents, and to perpetually enjoin said city and its officers and agents from supplying water to non-residents. The circuit court sustained the defendants' demurrers to the petition, the plaintiffs declined to plead further, judgment was entered in favor of the defendants, and the plaintiffs appealed. Thus is presented for our determination the question of whether or not a cause of action is stated in the petition.

For the purposes of this opinion, it will be assumed that the defendants McElroy and Fleming are sued as city manager and director of the water department, respectively, of Kansas City, and not as individuals. The petition is very long, and it seems necessary to quote the following portions thereof:

"These plaintiffs further state that, among other things, the said charter under which Kansas City is acting, provides for and defines its powers, and that paragraphs eight and eleven of Section One of Article One of said charter, defining the powers of said city of Kansas City, are in words and figures as follows, to-wit:

"`Sec. 8. To acquire, receive, hold, use, manage, maintain, control, improve, and to sell, lease, mortgage, pledge or otherwise dispose of property, real or personal, and any estate or interest therein, within or without the city or state, for any public or municipal use or purpose; to provide for the purchase of property levied upon under execution or process in favor of the city; and to provide for the purchase by the city of property when sold for delinquent taxes and assessments levied or imposed under the charter of the city, and to sell and convey the same; but the sum paid by the city for any piece or parcel of property so sold on execution in favor of the city or for delinquent taxes or assessments, shall not exceed the amount of such debt, tax or assessment, and the necessary cost and expenses of the proceedings for the collection of the same.'

"`Sec. 11. To acquire, construct, own, operate, maintain, sell, lease, mortgage, pledge, or otherwise dispose of public utilities or services or any estate or interest therein; or any other utility or service to the city, its inhabitants or any part thereof.'

"That the said powers so set forth in said paragraphs eight and eleven (8 and 11) set forth above, were placed in said charter, and are being acted upon by said city by virtue of such rights as may have been granted by Section Twelve (12) of Article Ten (10) of the Constitution of Missouri, which is as follows, viz.:

"`That any city which now has or may hereafter attain a population of seventy-five thousand or more inhabitants may acquire, by purchase, condemnation or construction, waterworks, gasworks, electric light works, street railways, telegraph and telephone systems, heating plants, ice or refrigeration plants, or any other plant, system or public service institution, within or outside of the limits of such city, for the use of the city or its citizens, and for the purpose of paying therefor, in whole or in part, may issue public utilities bonds, which public utilities bonds shall not be included in the liabilites or indebtedness of the city limited by the prior provisions of this Section; but the total amount of such public utilities bonds to be issued by such city shall not exceed twenty per centum of the value of the taxable property in said city, to be ascertained as above specified.'

"That except for said section of the said Constitution, the defendant city would have no right to operate any public utility or waterworks system and that said city has no such right, except such as is specifically granted, to and derived by said city, therefrom, and said section does not grant any right, nor has the city any right, to operate a public utility or waterworks system except for the use of itself and citizens, and cannot engage in the business of selling any commodity except for said uses and has no right to furnish commodities or provide water beyond the city and state limits or for use by citizens of Johnson or any other county in the State of Kansas and that any such selling or furnishing by said city is and will be in violation of said provision of such Constitution.

"That the powers and duties of said director (the director of the water department) are set forth in Section 44, Article 3, of the Charter of Kansas City, Missouri, as follows:

"`Section 44. Powers and Duties. The director of the water department shall be a person trained and experienced in the operation and management of public utilities. He shall have power to lay water pipes and equipment along streets, public highways, alleys or parts thereof, or other places, and to supply water and other services to the city, its inhabitants or to any person, firm or corporation within or without the corporate limits of the city, or within or without the State of Missouri under such terms and conditions as may be prescribed by ordinance. The council shall prescribe and the director of the water department shall enforce just and reasonable rules and regulations, methods and practices, governing the furnishing of water service and the collection of all charges therefor.'

"Plaintiffs further state and charge that Section 44, Article 3, of the said charter providing that the director of the water department shall have power `to supply water and other services to the city, its inhabitants or to any person, firm or corporation within or without the corporate limits of the city, or within or without the State of Missouri under such terms and conditions as may be prescribed by Ordinance' is absolutely null, void and of no effect as to the words `without...