State ex inf. McKittrick ex rel. City of Springfield v. Springfield City Water Co.

• Decision Date: 05 September 1939
• Docket Number: 35344
• Parties: State of Missouri upon the information of Roy McKittrick, Attorney General, at the relation of the City of Springfield, a Municipal Corporation, Relator, v. Springfield City Water Company, a Corporation
• Court: Missouri Supreme Court

131 S.W.2d 525

345 Mo. 6

State of Missouri upon the information of Roy McKittrick, Attorney General, at the relation of the City of Springfield, a Municipal Corporation, Relator, v. Springfield City Water Company, a Corporation

No. 35344

Supreme Court of Missouri

September 5, 1939

Ouster denied and proceeding dismissed.

Roy McKittrick, Attorney General, James L. HornBostel Kirby W. Patterson, Frank C. Mann and Fred A Moon for relator.

(1) The granting of a franchise is a governmental function, and the power to grant a franchise is vested in the State. (a) The Legislature, subject to constitutional limitations, may grant franchises. State ex inf. Shartel v. Mo. Utilities Co., 331 Mo. 337, 53 S.W.2d 394. (b) Legislature may delegate to cities the power to grant franchises. State ex inf. McKittrick v. Mo. Standard Tel. Co., 85 S.W.2d 613; Water Co. v. Hutchinson, 207 U.S. 385, 52 U.S 257; Port of Mobile v. Louisville, 84 Ala. 115, 4 So. 106; Milhan v. Sharp, 27 N.Y. 611. (c) "The granting of a franchise is not the same thing as a contract and the exercise of such a power cannot be upheld or vindicated as falling within the same rule as the power to make contracts." Peoples Railway Co. v. Memphis Ry. Co., 10 Wall, 38, 19 U.S. 849. (2) Respondent contends, and relator concedes, that a city in granting a franchise acts as the agent of the State. State ex inf. Shartel v. Mo. Utilities Co., 331 Mo. 337, 53 S.W.2d 394; State ex inf. McKittrick v. Arkansas-Mo. Power Co., 93 S.W.2d 892. (3) A city is a government of delegated powers. Its charter and other applicable statutes constitute its constitution on organic law as it were. Evans v. McFarland, 186 Mo. 722. But they "constitute a grant and not a limitation of power subject to strict construction, with doubtful powers resolved against the city." Taylor v. Dimmitt, 78 S.W.2d 843. (4) A municipality's powers exist by virtue of express legislative grant or by implication, that is, are implied because incidental or necessary -- not merely convenient -- to carry out an express power. Taylor v. Dimmitt, 78 S.W.2d 843. (5) Where the city charter or general statute expressly enumerates certain powers with reference to a given subject, there is no room for holding, as contended by respondent, that the grant in the charter of 1874 "to provide the city with water," carries the implied power to contract therefor with an individual. The exercise of a power under a general grant cannot be extended beyond limitations contained in an express grant. "The mode in such cases constitutes the measure of the power." State ex rel. v. McWilliams, 74 S.W.2d 364; St. Louis v. Kainie, 180 Mo. 309; State v. Butler, 178 Mo. 272; State ex rel. v. Berryman, 142 Mo.App. 373, 127 S.W. 129; State ex rel. Clifford, 128 S.W. 755. Where a statute expressly enumerates certain parties to whom franchise may be granted, it impliedly excludes all others. Allen v. Clausen, 114 Wis. 244, 90 N.W. 184. (6) Grant of power to a city by charter or other statute must be strictly construed. Exter v. Kramer, 316 Mo. 762, 291 S.W. 469; State ex rel. v. Power Co., 313 Mo. 283, 281 S.W. 709. (7) Doubt as to the power of a city to do a certain thing must be resolved against the existence of such power. City ex rel. v. Henry, 136 Mo.App. 468, 118 S.W. 486; St. Louis v. Phone Co., 96 Mo. 623; Pierce v. Hentchel, 180 S.W. 1027; State ex rel. v. McWilliams, 74 S.W.2d 364.

W. D. Tatlow and Neale & Newman for respondent.

(1) Under its special charter granted in 1855, the city had the undoubted power to grant to Perkins and assigns a perpetual franchise or easement to use the streets of the city for the purpose of constructing a waterworks system. Howsmon v. Trenton Water Co., 119 Mo. 331, 24 S.W. 787; Lexington v. Lafayette County Bank, 165 Mo. 679, 65 S.W. 944; State ex rel. v. Kansas City, 319 Mo. 396, 42 S.W.2d 430. (2) The Perkins ordinance did not create an indebtedness on the part of the city for the twenty-year period, but only for each separate year, conditioned upon the furnishing of the water to it under the ordinance. Saleno v. Neosho, 127 Mo. 627, 30 S.W. 190; Neosho City Water Co. v. Neosho, 136 Mo. 507, 38 S.W. 90; State ex rel. Hannibal v. Smith, 335 Mo. 835, 74 S.W.2d 372. (a) Even if the indebtedness which the Perkins ordinance purported to create was invalid for any reason it would not affect the street easement for the reason that the indebtedness was entirely separate and distinct from the street easement. Carrol v. Campbell, 108 Mo. 550, 17 S.W. 884; State v. Craven, 96 Mo. 76, 8 S.W. 788; St. Louis v. St. Louis Ry. Co., 89 Mo. 44, 1 S.W. 305; Neosho, etc., Co. v. Neosho, 136 Mo. 498, 38 S.W. 89; St. Louis v. Grafeman, 190 Mo. 503; St. Louis v. Transfer Co., 256 Mo. 492. (b) The fact that the Perkins ordinance purports to grant the "exclusive" right to use the streets renders it void only as to the "exclusive" privilege. This question has been directly decided by the Supreme Court. Carrol v. Campbell, 108 Mo. 550. (c) Even if the Perkins ordinance was invalid because not properly ratified by the voters, the city could not question its validity at this late date. Simpson v. Stoddard County, 173 Mo. 462, 73 S.W. 707. (d) The city having, for more than fifty years, recognized the Perkins ordinance, it cannot question its validity on account of any infirmity or irregularity of its passage or ratification. This is elementary law. Wiggins Ferry Co. v. Ohio Miss. Ry. Co., 142 U.S. 396, 35 L.Ed. 1055; Chicago, etc., Railway Co. v. Denver, 143 U.S. 609, 36 L.Ed. 81; Horsky v. Helena Consolidated Water Co., 13 Mont. 34, 33 P. 689. (3) This is the ordinance that was passed on the 18th day of February, 1903, referred to as the Mellette ordinance. It does not purport to grant a franchise or street easement. It recognizes, recites and finds as a fact that the Springfield Waterworks Company then had a continuing, existing franchise under which its waterworks system had been constructed and in operation for twenty years. The ordinance is a contract by which the city rented hydrants and fixed the rate to consumers for a period of ten years, to begin on the day that the hydrant rentals under the Perkins ordinance terminated. The postulate for the ordinance is the fact that the company had an existing franchise. (4) Only limitation to power of city under its special charter was with reference to grants to corporations and not to individuals. The Constitution requires that no bill shall contain more than one subject (Art. XIV, Sec. 28, Const. 1875). Under this constitutional provision Section 952, Revised Statutes 1879, could not possibly be construed as an amendment to the city charter or as applicable to individuals. The Missouri decisions are conclusive on this point. State v. Great Western Coffee & Tea Co., 171 Mo. 634, 71 S.W. 1011; Williams v. Railroad Co., 233 Mo. 676; State v. Sloan, 258 Mo. 305, 167 S.W. 500; State v. Crites, 277 Mo. 194, 209 S.W. 963; Woodward Hardware Co. v. Fisher, 269 Mo. 271, 190 S.W. 576; State v. Fulks, 207 Mo. 26, 105 S.W. 733; State v. Rys. Co., 232 Mo. 544, 134 S.W. 530. Berry v. Majestic, etc., Co., 284 Mo. 192; State v. Imhoff, 291 Mo. 628; State ex rel. Wells v. Walker, 326 Mo. 1247, 34 S.W.2d 1233; State ex rel. v. Hendrix, 294 Mo. 89; Columbia v. Pub. Serv. Comm., 329 Mo. 46, 43 S.W.2d 813; Sherrill v. Brantley, 334 Mo. 507, 66 S.W.2d 529. (5) Ambiguity removed by acts of the parties. (a) "The continuous conduct of the parties for a series of years concerning the subject matter of the contract, and in fulfillment of its conditions -- every act pointing in the same direction -- may make their understanding as clear as by the greatest precision of language." St. Louis Gaslight Co. v. St. Louis, 46 Mo. 128; Williams v. Chicago, S. F. & C. Ry. Co., 153 Mo. 534, 54 S.W. 704; Patterson v. Camden, 25 Mo. 22; Jones v. DeLassus, 84 Mo. 545; Scott v. Scott, 95 Mo. 318; White v. Herringhausen, 275 Mo. 687; City of California v. Burke, 219 Mo. 466. In Williams v. Chicago, etc., Ry. Co., supra, the court cites the St. Louis Gaslight Company and other cases, and says: "This court, in a word, has adopted the aphorism of Lord Sugden in Attorney General v. Drummond, 1 Dr. & War. 368, 'Tell me what you have done under a deed, and I will tell you what that deed means.'" (153 Mo. l. c. 534.)

OPINION

Hays, J.

This is an original proceeding in the nature of quo warranto instituted by information filed by the Attorney General on December 19, 1936, whereby it is sought to oust the respondent from the use, in connection with its water system, of the streets and public thoroughfares of the City of Springfield.

To our order to show cause, thereupon issued, the respondent filed answer and plea in abatement, to which the informant filed a reply. In response to the new matter set up therein respondent filed a rejoinder, thus joining issue. This court thereafter appointed R. B. Oliver, Jr., a member of our Bar, as Special Commissioner to take evidence and report on all issues of law and fact. On August 5, 1938, the Special Commissioner filed his full report and on August 22 the relator filed exceptions thereto. In due course and at the present term the cause was heard on oral arguments and briefs of counsel on both sides and submitted. The evidence is voluminous, covering some five hundred pages of the printed record and ranging back through a period of more than a half-century. Hence, unavoidably, the report of our learned Special Commissioner is of a length proportionate to the record. We acknowledge our indebtedness to him for its thoroughness and helpfulness.

Relator claims that respondent is occupying the streets of Springfield without franchise and illegally. On the other hand, respondent contends: (1) that it has a...