State ex Inf. McKittrick v. Telephone Co.

• Decision Date: 30 July 1935
• Docket Number: No. 33817.,33817.
• Court: Missouri Supreme Court
• Parties: STATE OF MISSOURI on the Information of ROY McKITTRICK, Attorney General, at the Relation of the CITY OF LEBANON, a Municipal Corporation, Relator, v. THE MISSOURI STANDARD TELEPHONE COMPANY, a Corporation.

85 S.W.2d 613

STATE OF MISSOURI on the Information of ROY McKITTRICK, Attorney General, at the Relation of the CITY OF LEBANON, a Municipal Corporation, Relator, v. THE MISSOURI STANDARD TELEPHONE COMPANY, a Corporation.

No. 33817.

Supreme Court of Missouri.

Court en Banc, July 30, 1935.

Quo Warranto.

WRIT OF OUSTER GRANTED.

Roy McKittrick, Attorney General, J. Victor Jeffries, Robert C. Fields and Jean Paul Bradshaw for relator; Ragland, Otto & Potter of counsel.

(1) Quo warranto is the appropriate remedy for obtaining the relief sought in this case, and the proceeding was properly brought at the relation of the city of Lebanon. State ex inf. v. Light & Power Co., 246 Mo. 653, 152 S.W. 76; Kavanaugh v. St. Louis, 220 Mo. 496; State ex rel. v. Ry. Co., 140 Mo. 539; State ex inf. v. Mo. Utilities Co., 53 S.W. (2d) 394. (2) The Legislature has delegated to the cities of the State respectively the power to grant, or in their discretion to refuse to grant, telephone companies the privilege of placing their poles, wires and other equipment in the streets and alleys of such cities. Sec. 4921, R.S. 1929; Castilo v. State Highway Comm., 279 S.W. 673. On construction of said Section 4921 with reference to proviso. Holland Realty Power Co. v. St. Louis, 282 Mo. 180, 221 S.W. 51; Southern Bell Tel. & Tel. Co. v. Richmond, 103 Fed. 37; City of Mitchell v. Tel. Co., 25 S.D. 409; 4 McQuillin, Mun. Corp. (2 Ed.), sec. 1754; State ex inf. v. Light & Power Co., 246 Mo. 653, 152 S.W. 76; Kavanaugh v. St. Louis, 220 Mo. 496; State ex rel. v. Rys. Co., 140 Mo. 539; State ex inf. v. Mo. Utilities Co., 53 S.W. (2d) 394. (3) "Municipal Authorities," as used in the phrase "With the consent of the municipal authorities thereof," means the legislative authorities acting by ordinance. State ex inf. v. Light & Power Co., 246 Mo. 653; Holland Realty Power Co. v. St. Louis, 282 Mo. 180, 221 S.W. 51; State ex inf. v. Mo. Utilities Co., 53 S.W. (2d) 394; 4 McQuillin, Mun. Corp. (2 Ed.). 1767. (4) Ordinance No. 583a, granting a street franchise to the Laclede County Telephone Company, when accepted and acted upon by the grantee, became as to all of its terms and conditions a binding contract, binding not only the city of Lebanon, but the Laclede County Telephone Company, its successors and assigns as well. 3 Dillon, Mun. Corp. (5 Ed.), sec. 1229; 19 R.C.L. 1156, sec. 429; 26 C.J. 1022, sec. 32. (5) A condition limiting the duration of the right or privilege granted is valid, and when the term for which the franchise or privilege is granted expires, the grantee's right to the use and occupancy of the streets and alleys ceases. 3 Dillon, Mun. Corp. (5 Ed.), sec. 1230; 4 McQuillin (2 Ed.), secs. 1784-1785; Laighton v. Carthage, 175 Fed. 145; Louisville Trust Co. v. Cincinnati, 73 Fed. 716; Mut. Union Tel. Co. v. Chicago, 16 Fed. 309. (6) Public Service Commission law did not repeal, modify or amend statutes requiring public service corporations to obtain the consent of the municipal authorities as a condition precedent to placing their fixtures and equipment in the streets of the city. State ex inf. v. Mo. Utilities Co., 53 S.W. (2d) 394. (7) On the facts of this case there is no estoppel. State ex inf. v. Light & Power Co., 246 Mo. 653; State ex rel. v. Ry. Co., 140 Mo. 539; City of Mountain View v. Tel. Co., 243 S.W. 153; State ex inf. v. Mo. Utilities Co., 53 S.W. (2d) 394; Laughlin v. Wells, 283 S.W. 990, 314 Mo. 474. (8) Respondent, not being able to deraign its title to the system of telephone now operated by it in the city of Lebanon from any corporation organized under Article VI, Chapter 12, Revised Statutes 1899, prior to June 21, 1903, is not in a position to assert franchise rights conferred by Section 1251, Revised Statutes 1899, prior to its amendment in 1903, and not thereafter. Sec. 1251, R.S. 1899; Laws 1903, p. 137; City of Plattsburg v. People's Tel. Co., 88 Mo. App. 312; Owen v. Railroad Co., 83 Mo. 455; St. Louis v. Railroad Co., 114 Mo. 25; Lockwood v. Ry. Co., 122 Mo. 96. (9) To deny the writ in this case would in effect nullify the statute which says that telephone companies must have the consent of municipal authorities.

Phil M. Donnelly and Robert W. Hedrick for respondent; Frank E. Atwood of counsel.

(1) Respondent, under its own charter and as the successor and assign of the Laclede County Telephone Company and the Lebanon Telephone Company, now has all rights that have been acquired by the three companies under Section 4921, Revised Statutes 1929. Sec. 4921, R.S. 1929. (2) The evidence warrants a finding of fact that the Laclede County Telephone Company lawfully acquired and lawfully exercised such rights for about two years after its incorporation in 1908. Independent of this, however, such rights undoubtedly became absolute upon the city's consent, evidenced by passage and approval of relator's Ordinance 413 on September 2, 1912, and are now vested in respondent. Sec. 4921, R.S. 1929. (3) Respondent's right to construct and maintain its telephone lines in the city of Lebanon rests on the State's direct grant which is unlimited as to duration, and the city is without power to terminate or destroy such grant. Sec. 4921, R.S. 1929. (a) The proviso in Section 4921 states a condition upon which the grant in the enacting clause is made. 50 C.J., p. 831, note 14; Webster's New International Dictionary defining "proviso;" Black's Law Dictionary defining "provided;" Appeal of City of Pittsburgh, 115 Pa. St. 4, 7 Atl. 778; State v. Mayor, etc., City of Jersey City, 8 Atl. 126; Dakota Central Tel. Co. v. Huron, 165 Fed. 231. (b) If this condition implies a grant of power to cities such grant must be strictly construed. Tulsa v. Southwestern Bell Tel. Co., 75 Fed. (2d) 352, Ann. Cas. 1915A, 292; 59 C.J., p. 1089, notes 41-44. (c) When so construed it falls short of delegating to cities power to make the grant which is exercised by the State in the enacting clause of Section 4921. (d) It follows that the city of Lebanon was without power to attach to its consent a condition not authorized by the State which would terminate or destroy the State's grant. Galveston & Western Ry. Co. v. Galveston, 39 S.W. 96, 90 Tex. 398, 39 S.W. 920, 91 Tex. 17; Appeal of City of Pittsburgh, 115 Pa. St. 4, 7 Atl. 778; State v. Mayor, etc., City of Jersey City, 8 Atl. 126; Dakota Central Tel. Co. v. City of Huron, 165 Fed. 226; Mo. River Tel. Co. v. City of Mitchell. 116 N.W. 69; New Hope Tel. Co. v. City of Concordia, 106 Pac. 36; Michigan Tel. Co. v. St. Joseph, 80 N.W. 386; Louisville v. Cumberland T. & T. Co., 224 U.S. 649. (e) Hence, the special commissioner's conclusions of law and recommendation thereon that writ of ouster issue against respondent are, and any judgment awarding ouster herein would be, violative of provisions of the Constitution of Missouri and of the Constitution of the United States. Secs. 15, 30, Art. II, Const. of Missouri; Sec. 10, Art. I, Const. of U.S.; Fifth Amend. and Sec. 1 of Fourteenth Amend., Const. of U.S. (4) The public policy of this State recognizes a distinction between the service rendered by telephone and telegraph companies and that rendered by other public utilities which makes such a direct grant from the State imperative. Texarkana v. Southwestern Tel. & Tele. Co., 48 Tex. Civ. App. 22, 106 S.W. 917; Tulsa v. Southwestern Bell Tel. Co., 75 Fed. (2d) 353; Sec. 7683, R.S. 1929, and antecedent statutes contrasted with Sec. 4921, R.S. 1929, and antecedent statutes. (5) The legislative intent that relator should be without authority to limit the duration of the State's grant to respondent is further evidenced by the Missouri Public Service Commission law, adopted in 1913. It was beyond the power of both relator and respondent to contract with each other for such limitation. Laws 1913, pp. 556-651; State ex inf. Atty. Gen. v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 858; State ex rel. Sedalia v. Pub. Serv. Comm., 275 Mo. 201, 204 S.W. 498; Southwest Mo. Railroad Co. v. Pub. Serv. Comm., 281 Mo. 52, 219 S.W. 382; Cape Girardeau v. Ry. Co., 305 Mo. 590, 267 S.W. 604; Chicago Motor Coach Co. v. Chicago, 122 N.E. 477; Public Serv. Comm. v. Railroad Co., 77 Misc. 487; Troy v. United Traction Co., 202 N.Y. 340; State ex rel. v. Flad, 23 Mo. App. 185; Tulsa v. Southwestern Bell Tel. Co., 75 Fed. (2d) 351; Dillon, Mun. Corp. (5 Ed.), sec. 1229, p. 1953. (6) Relator is in equity and in good conscience estopped by its own acts to urge ouster of respondent. Peterson v. Kansas City, 324 Mo. 454, 23 S.W. (2d) 1045; State ex rel. v. Nelson, 310 Mo. 526, 275 S.W. 927; City of Mountain View v. Farmers Exch. Tel. Co., 294 Mo. 623, 243 S.W. 153; Tulsa v. Southwestern Bell Tel. Co., 75 Fed. (2d) 343. (7) In the exercise of sound judicial discretion writ of ouster should be denied. State ex rel. Jackson v. Town of Mansfield, 99 Mo. App. 153, 72 S.W. 471; State ex rel. Atty. Gen. v. Cupples Station L., H. & P. Co., 283 Mo. 115, 223 S.W. 84; State ex inf. Atty. Gen. v. School Dist. of Lathrop, 314 Mo. 315, 284 S.W. 140; State ex rel. Worsham v. Ellis. 329 Mo. 124, 44 S.W. (2d) 131; 2 Spelling on Extraordinary Remedies (2 Ed.), sec. 1777.

Oliver & Oliver for Southeast Missouri Telephone Company, amicus curiae.

Smith B. Atwood for Southwestern Bell Telephone Company, amicus curiae; Earl H. Painter of counsel.

L.E. Durham, H.S. Conrad and C.E. Cowherd for Missouri Telephone Company, amicus curiae.

A.Z. Patterson and D.C. Chastain for United Telephone Company and Higginsville Telephone Company, amici curiae.

B.I. Litowich for Western Telephone Company, amicus curiae.

James A. Waechter and Roberts P. Elam for Ozark Central Telephone Company, amicus curiae.

COLES. J.

This is an original proceeding in the nature of quo warranto filed in this court on August 8, 1934, by the Attorney General of the State of Missouri at the relation of the city of Lebanon against The Missouri Standard Telephone Company as respondent...