State Ex Inf. Jones v. Light And Development Company of St. Louis

• Citation: 152 S.W. 67,246 Mo. 618
• Parties: THE STATE ex inf. SEEBERT C. JONES, Circuit Attorney, ex rel. CITY OF ST. LOUIS, v. LIGHT AND DEVELOPMENT COMPANY OF ST. LOUIS, Appellant
• Decision Date: 21 December 1912
• Court: United States State Supreme Court of Missouri

152 S.W. 67

246 Mo. 618

THE STATE ex inf. SEEBERT C. JONES, Circuit Attorney, ex rel. CITY OF ST. LOUIS, v. LIGHT AND DEVELOPMENT COMPANY OF ST. LOUIS, Appellant

Supreme Court of Missouri

December 21, 1912

Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.

Affirmed.

O'Neill Ryan, E. C. Slevin and Charles W. Bates for appellant.

(1) This is not a State case; the city is relator and the real party in interest. (a) The city cannot, as the governmental agency of the State, maintain quo warranto proceedings. Kavanaugh v. St. Louis, 220 Mo. 518. No such power or authority is granted the city by charter, statute or otherwise, expressly or impliedly. On the contrary, those that are granted such power and invested with such functions are designated by law, namely, the Attorney-General of the State and the county prosecuting attorneys and the circuit attorney of the city of St. Louis. R.S. 1909, Secs. 970, 975 1007; R.S. 1899, Secs. 4943, 4950, 4959; State ex rel. v McMillan, 108 Mo. 157; State ex rel. v. Rose, 84 Mo. 202. The franchise sought to be forfeited was granted by the State through the medium of the city. Kavanaugh v St. Louis, 220 Mo. 496; State ex rel. v Railroad, 140 Mo. 539. And the general rule is that only the State can question the right of the grantee to exercise the franchise. Fredericktown v. Fox, 84 Mo. 65. (b) The city, as relator in its own right, and not as representative of the State, cannot maintain quo warranto proceedings unless it shows title to some right (other than that of the State) which is being interfered with by the acts complained of on the part of respondent, namely, the use of the franchise vested in it by its charter, granted by the State, and by the ordinances of the city respecting the use of the streets in conducting a public lighting business. No such right in the city is suggested, and none is established by the proof in this case. No injury is shown to the city by appellant's exercise of rights claimed by it. The municipal assembly of the city, the legislative department thereof, has by its ordinances declared the acts attempted to be performed by appellant, and complained of by the city, a public benefit, and has vested those rights in appellant through those to whom it granted the franchise. R.S. 1909, Sec. 2631; State ex rel. v. Vail, 53 Mo. 109; State ex rel. v. Boal, 46 Mo. 531. (c) If the city, on the record before this court, can maintain this action, it can do so only to the same extent and on the same terms and subject to the same rules of law and principles of right as can any other private relator, and its measure of relief, if entitled to any, which we deny, must be no other than a private relator would be entitled to on the same record. State ex rel. v. Lawrence, 38 Mo. 538; State ex rel. v. Boal, 46 Mo. 531. (2) The State law, statutory and common, and not the city ordinances, determines what are lawful uses of a public street. Glaessner v. Brewing Assn., 100 Mo. 508; State ex rel. v. St. Louis, 161 Mo. 371; Schopp v. St. Louis, 117 Mo. 131; Lackland v. Railroad, 31 Mo. 186; Lockwood v. Railroad, 122 Mo. 86; Knapp Stout & Co. v. Transfer Co., 126 Mo. 36; State ex rel. v. Murphy, 134 Mo. 548; Sherlock v. Railroad, 142 Mo. 185; St. Louis v. Gloner, 216 Mo. 502; Peters v. St. Louis, 226 Mo. 62; Coal Co. v. Scruggs Co., 62 Mo.App. 93; Realty Co. v. Crockett, 158 Mo.App. 573; Morie v. Transit Co., 116 Mo.App. 23. The use of the public streets for distribution of electricity for public use, such as is claimed by appellant, is a lawful use of the streets. This is admitted by relator's amended petition. State ex rel. v. St. Louis, 145 Mo. 551; Ferrenbach v. Turner, 86 Mo. 416; Bldg. Assn. v. Tel. Co., 88 Mo. 258; Schopp v. City, 117 Mo. 131; State ex rel. v. Murphy, 134 Mo. 548; Subway Co. v. City, 169 Mo. 331; St. Louis v. Tel. Co., 149 U.S. 465. (3) While the Legislature has paramount authority over all the highways of the State, including the streets of St. Louis, the authority to regulate the lawful uses thereof is to a large extent delegated to the city. Ferrenbach v. Turner, 86 Mo. 416, 419; Subway Co. v. St. Louis, 169 Mo. 331. (b) The city had the lawful power to enact ordinance 12723 and grant the rights therein conferred. This is admitted by relator's amended petition. Constitution 1875, Art. 9, Secs. 20, et seq.; Charter, Art. 3, Sec. 26, pars. 2, 3 and 14; Subway Co. v. St. Louis, 169 Mo. 319; State ex rel. v. St. Louis, 145 Mo. 574. (4) Ordinance 12723, its acceptance and filing of the bond required and operation thereunder by appellant's assignors, constituted a contract between them and the city, called the grant "franchise," "consent," or what you may. Subway Co. v. St. Louis, 169 Mo. 330; State ex rel. v. Miller, 66 Mo. 328; State ex rel. v. St. Louis, 145 Mo. 551, 568; State ex rel. v. Railroad, 140 Mo. 539; Detroit v. Railroad, 184 U.S. 368; St. Louis v. Tel. Co., 148 U.S. 92; Minneapolis v. Railroad, 215 U.S. 417; Louisville v. Tel. Co., 224 U.S. 649. In making this grant the city was acting in its proprietary, and not its governmental, capacity. State ex rel. v. St. Louis, 145 Mo. 551; State ex rel. v. Gates, 190 Mo. 555; Louisville v. Tel. Co., 224 U.S. 661. (5) The two ordinances, 11976 and 12723, are not in conflict or inconsistent. The latter is merely an amplification of the former. St. Louis v. Weitzel, 130 Mo. 617; Asphalt Co. v. Kuhlman, 137 Mo. 543. But in fact, ordinance 12723 expressly repeals all existing inconsistent ordinances. This is an express repeal within the meaning of the charter provision, Sec. 28, Art. 3. Delaney v. Court, 167 Mo. 675. Repeal and reinactment of ordinance 12723 is a continuation of the old ordinance, and the rights of appellant's assignors remained as before. State ex rel. v. Mason, 153 Mo. 58; State ex rel. v. Court, 53 Mo. 130; Smith v. People, 47 N.Y. 330; Ordinance 14000, secs. 581-592, 1122 and 1131. (6) The acceptance as filed of ordinance 12723 was sufficient. In express terms it states that the acceptors "hereby accept all the terms of ordinance 12723." Furthermore, the bond subsequently filed supplies the omission of which relator complains. The acceptance was complete when the bond was filed, if not before. Operation under the contract and acceptance of payments thereunder estops relator from denying its validity. (7) This franchise contract was property which could be assigned and transferred. Kavanaugh v. St. Louis, 220 Mo. 496; State ex rel. v. Railroad, 140 Mo. 539; Railroad v. Delamore, 114 U.S. 501; Louisville v. Tel. Co., 224 U.S. 449. (8) Mere nonuser does not constitute an abandonment. Inv. Co. v. Railroad, 108 Mo. 50; State ex rel. v. Railroad, 140 Mo. 552. Intention to abandon is the essence of abandonment. State ex rel. v. Railroad, 140 Mo. 539; 1 Cyc. 4, 5, 7; Hummel v. Railroad, 175 Pa. St. 537; Curran v. Louisville, 83 Ky. 628; Dyer v. Sanford, 9 Metcalf, 395; Hayford v. Spokefield, 100 Mass. 491. The nonuser must furthermore be without lawful use or explanation. State ex inf. v. Club, 200 Mo. 34. (9) (a) Courts abhor forfeitures and they will not be declared when the only effect would be damage to the grantee and injury to the public. State v. Morris, 73 Tex. 435. (b) Courts will exercise a sound, judicial discretion as to whether they will forfeit a franchise of a corporation, even though grounds for forfeiture may exist. The public good is the paramount consideration. The public good is not served by the forfeiture in the case at bar. State ex inf. v. Oil Co., 218 Mo. 464-499; State ex inf. v. Club, 200 Mo. 67; State ex inf. v. Packing Co., 173 Mo. 392; State ex rel. v. Mansfield, 99 Mo.App. 146. (c) Acquiescence by the city should be taken into consideration by the court in the exercise of sound, legal discretion in declaring or refusing to declare a forfeiture for mere nonuser of the franchise. State ex rel. v. Bridge Co., 206 Mo. 145. (10) Proceedings to forfeit franchises come too late if not brought until after the cause for forfeiture has ceased. High on Extra. Legal Remedies, Sec. 667; People v. Bank, 6 Cow. 196; People v. Bank, 6 Cow. 217. Where the fault has been abandoned (the wrong for which the law authorizes a forfeiture or a fine), a forfeiture should not be declared. State ex inf. v. Packing Co., 173 Mo. 393; Standard Oil Case, 218 Mo. 467. (11) The municipal assembly of the city so far as St. Louis is concerned may release from the effects of acts which are sufficient grounds for forfeiture of the franchise. That the municipal assembly of St. Louis, by its repeated enactments -- the last being in 1907 -- did release from the effects of nonuser, the owner of the Aloe-Hernstein franchise, appellant herein, under ordinance 12723, is clear. (12) Franchises cannot be forfeited for abandonment or nonuser by administrative officers, and until they are forfeited by judgment of court, administrative officers cannot take upon themselves the power to determine this question. Until the court declares a forfeiture, such officers are bound to recognize the franchise. Kavanaugh v. St. Louis, 220 Mo. 496. The board of public improvements is, under the charter, an administrative body, and Aloe, Hernstein & Co. had a valid franchise which was by mesne conveyances duly assigned to appellant, and it was the plain duty of the board, under the facts in this case, to have issued permits to appellant. State ex rel. v. Flad, 23 Mo.App. 185; State ex rel. v. St. Louis, 145 Mo. 568; St. Louis v. Weitzel, 130 Mo. 620. (13) Municipal corporations, when acting in their proprietary, as contradistinguished from their governmental, capacity, are subject to estoppel in pais to the same extent as private corporations. Herman on Estoppel, Sec. 1222, p. 1363; 1 Dillon, Mun. Corp., Sec. 237; High Extra. Rem., ...