State Ex Inf. Jones v. West End Light & Power Co.

• Decision Date: 21 December 1912
• Parties: THE STATE ex inf. SEEBERT G. JONES, Circuit Attorney, Appellant, v. WEST END LIGHT & POWER COMPANY
• Court: Missouri Supreme Court

152 S.W. 76

246 Mo. 653

THE STATE ex inf. SEEBERT G. JONES, Circuit Attorney, Appellant, v. WEST END LIGHT & POWER COMPANY

Supreme Court of Missouri

December 21, 1912

Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.

Reversed and remanded (with directions).

Elliott W. Major, Attorney-General, Seebert G. Jones and Forrest G Ferriss, for appellant; Lon O. Hocker and B. Schnurmacher of counsel.

(1) Even assuming a franchise was acquired and that the franchise was assignable, the West End Light & Power Company acquired nothing by the assignment, since Browning, King & Co. had failed to "accept and comply with ordinance 12723," and were therefore not within the exception created by ordinance 16894. Pearsall v. Railroad, 161 U.S. 659; Grand Lodge v. New Orleans, 166 U.S. 146; Railroad v. Railroad, 166 U.S. 567. (2) Under any aspect of the case the franchise, if any there was, has been lost by long nonuser amounting to abandonment, and should be declared forfeited. State ex rel. v. Railroad, 140 Mo. 539; Morawetz on Priv. Corp., Sec. 1018; State ex inf. v Jockey Club, 200 Mo. 34; Kavanaugh v. St. Louis, 220 Mo. 496; State ex inf. v. Loan & Inv. Co., 142 Mo. 341; 2 Spelling on Extraordinary Relief, Sec. 1814; Given v. Wright, 117 U.S. 658; Henderson v. Passenger Co., 21 F. 358; Trust Co. v. Cincinnati, 76 F. 296; People v. Railroad, 126 N.Y. 29; Railroad v. Oswego, 92 N.Y. App. 551; Bridge Co. v. East Hartford, 16 Conn. 149; People v. Railroad, 117 Cal. 604; State v. Railroad, 40 Ohio St. 504; Railroad v. E. St. Louis, 182 Ill. 433; 3 Blackstone Comm., 362; 3 Cruise Dig., 267; 2 Cook Corp., Sec. 634; 27 Am. & Eng. Ency. Law, 55; Terrett v. Taylor, 9 Cranch. 43; Note to 8 Am. St. Rep. 179; McCutcheon v. Capsule Co., 71 F. 787; State v. Water Co., 98 Me. 214.

Lyon & Swarts and W. M. Williams for respondent.

(1) The informant cannot in quo warranto, any more than in other forms of action, set up in the reply facts inconsistent with the theory and facts pleaded in the information. Where specific grounds for ouster are pleaded in the information, other and inconsistent matters cannot be relied upon in the reply. State ex rel. v. Weatherby, 45 Mo. 1; Chitty v. Railroad, 148 Mo. 74; 32 Ency. Law and Proc., 1452d; State ex rel. v. Talbot, 123 Mo. 69; 2 Spelling on Extraordinary Relief, Secs. 1850, 1851, 1860; 17 Cyc. 457. (2) The city being competent to make the grant, and Browning, King & Co. being competent to accept it, the acceptance of the grant, and the giving of the bond by Browning, King & Co. constituted a contract which is protected by the Federal Constitution, as well as by the Constitution of this State. Bank v. Arkansas City, 76 F. 271; State ex rel. v. Gas Light Co., 102 Mo. 487; State ex rel. v. St. Louis, 145 Mo. 551; Cable Co. v. Baltimore, 66 F. 140; State ex rel. v. Railroad, 85 Mo. 263; Railroad v. Springfield, 85 Mo. 674; Knight v. Railroad, 70 Mo. 231; St. Louis v. Railroad, 85 Mo. 151; Railroad v. Railroad, 105 Mo. 577; State ex rel. v. Milling Co., 156 Mo. 620; Hovelman v. Railroad, 79 Mo. 632; Gas Light Co. v. Louisiana Gas Co., 115 U.S. 660; State ex rel. v. Railroad, 116 Wis. 142; Wright v. Light Co., 69 N.W. 793; Light Co. v. Monett, 186 F. 360; Electric Co. v. Little Falls, 102 F. 664; Wilcox v. Gas Co., 212 U.S. 219. (3) The parties in 1884 having made a contract, vested property rights were thereby conferred, and the franchise being property, was assignable. Kavanaugh v. St. Louis, 220 Mo. 511; State ex rel. v. Railroad, 140 Mo. 548; Hovelman v. Railroad, 79 Mo. 643; State ex rel. v. St. Louis, 161 Mo. 383; Lawrence v. Hennessy, 169 Mo. 67; Mayor v. Africa, 77 F. 507; Trust Co. v. Cincinnati, 76 F. 99; Louisville v. Tel. Co., 224 U.S. 661; Railroad v. Delamore, 114 U.S. 508; Railroad v. Commissioners, 112 U.S. 619; Electric Power Co. v. Tacoma, 17 Wash. 661; Carter v. Menle, 122 Cal. 367; State ex rel. v. Railroad, 85 Mo. 263. (4) Browning, King & Co. accepted and complied with ordinance 12723. Ordinance 16894, amending ordinance 12723, in 1892, did not take away or attempt to take away any rights of Browning, King & Co. It recognized that certain persons, associations and corporations prior to that time had availed themselves of its provisions, and had secured rights thereunder, and provided that from and after that date no one else could obtain such rights except by ordinance. If the 1892 ordinance be construed to mean that the rights granted under the 1884 ordinance were taken away because of the nonuser by the grantees of such rights, then the 1892 ordinance is void, because: (a) It deprived Browning, King & Co. of property without due process of law in violation of the Constitution of the United States and of the State of Missouri. (b) The State has reserved to itself, under Sec. 2631, R.S. 1909, the exclusive right and power to declare a forfeiture of franchises by proceeding directly for that purpose. A forfeiture of a franchise cannot be enforced or brought about collaterally or incidentally, or in any other manner than by a direct proceeding by the State of Missouri. Therefore, the city could not, by ordinance, forfeit the franchise. Kavanaugh v. St. Louis, 220 Mo. 517; State ex rel. v. Jockey Club, 200 Mo. 66; State ex rel. v. Railroad, 140 Mo. 546; Electric Power Co. v. Tacoma, 17 Wash. 670; Gas Light Co. v. Consumers Co., 40 N.J.Eq. 431; Railroad v. Commissioners, 39 N.J.L. 35; Light Co. v. Milwaukee, 36 L.R.A. 46; Indianapolis v. Gas Trust Co., 27 L.R.A. 514; Turnpike Road v. State, 19 Md. 291; Utah v. Railroad, 110 F. 890; Railroad v. McGee, 115 U.S. 473; Lewis v. Newton, 75 F. 897. (5) Abandonment of a property right can never be inferred from evidence of nonuser alone. 1 Cyc. 4, 5; State ex rel. v. Railroad, 140 Mo. 349; Investment Co. v. Railroad, 108 Mo. 62; Curran v. Louisville, 83 Ky. 628; Dyer v. Stanford, 9 Metc. 395; Hayford v. Spokesfield, 100 Mass. 491; Barlow v. Railroad, 29 Iowa 276. (6) The right of the State to prosecute for a forfeiture of franchise ceases with the cause on which the information is based. High on Extraordinary Remedies, Sec. 667; People v. Bank, 6 Cow. 196; People v. Bank, 6 Cow. 217; Dern v. Railroad, 19 Utah 46. (7) The city, with respect to a contract within its express powers, acting in its private as distinguished from its governmental capacity, may waive a breach of the contract, and be estopped by its conduct as to the contract, to the same extent as individuals or private corporations. Knight v. Kansas City, 70 Mo. 237; Railroad v. Marion County, 36 Mo. 306; Subway Co. v. St. Louis, 169 Mo. 331; Depot Co. v. St. Louis, 76 Mo. 396; Hook v. Bowden, 144 Mo.App. 331; Dillon on Municipal Corp., Sec. 237; Herman on Estoppel, Sec. 1222; High on Extraordinary Remedies, Sec. 621; Louisville v. Tel. Co., 224 U.S. 662; United States v. Wagon Road Co., 54 F. 881; Safety Insulated W. C. Co. v. Mayor, 66 F. 44; Railroad v. Triadelphia, 46 L.R.A. (N.S.) 337; State ex rel. v. Water Power Co., 32 L.R.A. 391; People v. Halliday, 29 P. 54; Carter v. Menli, 122 Cal. 367; Dern v. Railroad, 19 Utah 46; State v. Turnpike Co., 15 N.H. 165; Gregston v. Chicago, 145 Ill. 451. (8) The court, in considering the question of forfeiture, will exercise a wise judicial discretion, having in mind the effect of a decree of forfeiture on the grantee of the franchise, and the injury, if any, to public interests. A forfeiture has never yet been declared when its only result will be damage, both to the one exercising the franchise and to the public. State ex inf. v. Taylor, 208 Mo. 454; State ex rel. v. Weatherby, 45 Mo. 21; State ex rel. v. Mansfield, 99 Mo.App. 152; State ex inf. v. Railroad, 151 Mo. 179; Walker v. United States, 139 F. 412; State v. Morris, 73 Tex. 435; People v. Railroad, 50 N.E. 158; State ex inf. v. Club, 200 Mo. 68.

KENNISH J. Woodson, J., not sitting.

OPINION

In Banc.

KENNISH, J.

-- This is an appeal from the judgment of the circuit court of the city of St. Louis, in favor of respondent, in a proceeding by information in the nature of quo warranto. The information was filed in said court at the June term, 1909, by the circuit attorney of said city, against the respondent corporation, the West End Light & Power Company. The purpose of the suit was to oust the respondent from exercising the franchise of using the streets of said city for the erection of poles and stringing of wires thereon, to be used in conducting the business of supplying electricity to the public for lighting and other purposes. An amended information was afterwards filed, to which the respondent in due time filed an answer and return. Thereupon plaintiff filed a reply and the respondent filed a supplemental answer and return, and upon the issues thus framed, a trial was had and judgment entered as above. Plaintiff appealed to this court.

The pleadings covered forty-seven pages of the printed record and are of too great length to be set out in this statement. In the view we take of the case, the material facts, as gathered from the pleadings are, briefly, as follows:

The information charges the respondent with claiming and exercising the franchise of using the streets and public places of the city of St. Louis for the erection of poles and the stringing of wires thereon, for the purpose of supplying the public with electricity, without first having obtained authority by ordinance from the city so to do, and prays the court to cause the defendant to answer and state by what warrant of authority it claims to have, use and enjoy such franchise; that a judgment of ouster be rendered against respondent, ousting it from the exercise of such franchise.

In its return to the information the respondent alleges that the city of St. Louis, on the 15th day of March, 1884, being...