State ex Inf. Wilkerson v. Mo. Utils. Co.
| Decision Date | 21 February 1940 |
| Docket Number | No. 36121.,36121. |
| Court | Missouri Supreme Court |
| Parties | STATE OF MISSOURI on the information of W.P. WILKERSON, Prosecuting Attorney, at the relation of the CITY OF SIKESTON, Appellant, v. MISSOURI UTILITIES COMPANY, a Corporation, BOATMEN'S NATIONAL BANK, a Corporation, and COMMUNITY POWER & LIGHT COMPANY, a Corporation. |
Appeal from Scott Circuit Court. — Hon. Frank Kelly, Judge.
AFFIRMED.
Roger A. Bailey for appellant.
(1) Where the court sustains a demurrer to plaintiff's petition, the point is saved for review on appeal, and no bill of exceptions is necessary. Clark v. Grand Lodge of B.R.T., 328 Mo. 1084, 43 S.W. (2d) 404. (2) An estoppel does not of itself create new franchise rights but preserves rights already acquired. State ex rel. Sikeston v. Mo. Utilities, Co., 331 Mo. 337, 53 S.W. (2d) 399; State ex rel. Sikeston v. Pub. Serv. Comm., 336 Mo. 985, 82 S.W. (2d) 108. (3) All rights of franchise which respondent may have had by reason of estoppel in State ex inf. Shartel v. Missouri Utilities Co., 331 Mo. 337, 53 S.W. (2d) 394, have expired. (4) Right of franchise having expired, ouster will be granted unless municipal consent for further operation is acquired. State ex rel. California v. Mo. Utilities Co., 339 Mo. 385, 96 S.W. (2d) 607; State ex rel. Campbell v. Ark.-Mo. Power Co., 339 Mo. 15, 93 S.W. (2d) 887; State ex rel. Lebanon v. Mo. Standard Tel. Co., 337 Mo. 642, 85 S.W. (2d) 613; State ex rel. Sikeston v. Pub. Serv. Comm., 336 Mo. 985, 82 S.W. (2d) 105; State ex rel. Sikeston v. Mo. Utilities Co., 331 Mo. 337, 53 S.W. (2d) 394. (5) A holder of bonds and securities secured by the properties of a person, firm or corporation holding franchise rights, together with trustee in the instrument securing said indebtedness, may have some right, title or interest in and to the franchise rights of the person, firm or corporation issuing the securities in any city where properties are located. Chase Natl. Bank v. City of Norwalk, 291 U.S. 431, 78 L. Ed. 894; Old Colony Trust Co. v. City of Omaha, 230 U.S. 100.
S.W. Fordyce, N.W. Hartman and Fordyce, White, Mayne, Williams & Hartman for Missouri Utilities Company and Community Power & Light Company; Charles Claflin Allen, Jr., for Boatmen's National Bank.
(1) The defense of res adjudicata may be raised by demurrer where the facts and the nature of the prior objections appear on the face of the pleadings. 34 C.J., sec. 1494, p. 1058; Lemon v. Garden of Eden Drain. Dist., 310 Mo. 171, 275 S.W. 44; Natl. Casket Co. v. Stoltz, 174 Fed. 413; Givens v. Thompson, 110 Mo. 432; Kilpatrick v. Roberts, 278 Mo. 257; Donnell v. Wright, 147 Mo. 647; Spratt v. Early, 199 Mo. 501; Potamitis v. Pittsburgh Plate Glass Co., 82 Fed. (2d) 472. (2) Appellant's petition stated no different facts than were decided by the Missouri Supreme Court in two previous decisions concerning the same parties and the same facts and, therefore, appellant is not entitled to any relief. State ex rel. Sikeston v. Mo. Utilities Co., 331 Mo. 337, 53 S.W. (2d) 394; State ex rel. Sikeston v. Pub. Serv. Comm., 336 Mo. 985, 82 S.W. (2d) 105; North St. Louis Gymnastic Society v. Hagerman, 232 Mo. 693, 135 S.W. 45. (3) Respondent Missouri Utilities Company's franchise by estoppel has not expired. State ex rel. Sikeston v. Mo. Utilities Co., 331 Mo. 337, 53 S.W. (2d) 394; State ex rel. Sikeston v. Pub. Serv. Comm., 336 Mo. 985, 82 S.W. (2d) 105. (4) The United States District Court for the Southeastern Division of the Eastern District of the State of Missouri has taken jurisdiction in the suit instituted by Community Power & Light Company v. Wilkerson et al., and the City of Sikeston cannot defeat the jurisdiction of the United States District Court by the institution of subsequent quo warranto proceedings in the Circuit Court of Scott County. Knickerbocker Trust Co. v. Kalamazoo, 182 Fed. 865; Adams v. New York Trust Co., 37 Fed. (2d) 826.
This action is based upon an information in quo warranto, instituted and tried in the Circuit Court of Scott County by the prosecuting attorney thereof at the relation and to the use of the City of Sikeston, seeking to require the Missouri Utilities Company, a Missouri corporation, to show cause why it should not be ousted from the rights and privileges of franchise to use the streets and public ways of said city, and asking ouster of said Utilities Company. The Boatmen's National Bank, of St. Louis, a corporation, trustee in a mortgage or deed of trust given by said Utilities Company to secure bonds issued by the latter, and the Community Power and Light Company, a nonresident corporation, holder of some, or all, of said bonds, are also made parties (respondent) because having, or claiming "some right, title or interest" in the franchise of the Utilities Company. It is alleged the privileges and franchise involved exceed in value the sum of $7500.
The information was filed August 9, 1937. The circuit court sustained a general demurrer to plaintiff's (relator's) petition. Relator declined to plead further, whereupon the court rendered judgment dismissing the petition and relator appealed.
The petition (or information) is very long. We shall attempt to summarize it, quoting only such portions as seem to be necessary to a clear understanding of the issues presented. From it the following alleged facts appear:
The City of Sikeston was organized as a city of the fourth class in 1891. In 1925 it became a city of the third class and has since functioned as such. The Boatmen's National Bank is a Missouri corporation, its only interest being, apparently, as trustee in a "bond indenture" or deed of trust given by the Utilities Company to secure bonds issued. The Community Power and Light Company is a corporation organized under the laws of Delaware and authorized to do business in this State.
In 1902, by ordinance approved by vote of the people, the City of Sikeston granted a franchise "to use the streets, avenues, alleys and public ways of said city for an electric light and power distribution system to the Sikeston Electric Light Company, its successors and assigns" for a period of twenty years from approval of the ordinance by vote of the people, which approval was given December 16, 1902, the ordinance thereupon becoming effective and the franchise so granted expiring, therefore, December 16, 1922. It is alleged that the Missouri Utilities Company is the "last lineal successor" to said Sikeston Electric Light Company and has only such franchise rights as were granted to said original grantee.
On May 6, 1935, the city council of Sikeston passed an ordinance (set out in the petition) directing the Utilities Company to vacate the streets, etc., remove its poles and wires and discontinue furnishing light and power, within sixty days. Notice was served upon the Utilities Company. It refused to vacate.
The petition then alleges that "since the expiration of the franchise" granted to the "Sikeston Electric Light Company, its successors and assigns" (December 16, 1922), the city has installed an electric light and power plant, with distribution system, capable of supplying all needs of the city and its inhabitants and that there is now no need of two plants or of competition between the city plant and the Utilities Company.
The petition then points out that on August 27, 1931, there was filed in this court an information in quo warranto, State ex inf. Shartel, Attorney General, ex rel. City of Sikeston v. Missouri Utilities Co., wherein the relator sought to oust the Utilities Company and to exclude it from all rights, privileges and franchises of occupying the streets, etc., of said City of Sikeston, and the decision of this court in said case, handed down September 5, 1932, and reported in 331 Mo. 337, 53 S.W (2d) 394, denying ouster on the ground of estoppel. For convenience and brevity we shall refer to this case as the first Sikeston case. There was a second case, to which we may have occasion to refer (also referred to by relator herein in its petition and cited in brief) entitled, State ex rel. City of Sikeston v. Public Service Commission of Missouri, 336 Mo. 985, 82 S.W. (2d) 105. This case, if necessary to refer to it hereinafter, will be referred to as the second Sikeston case. The petition also refers to rulings and orders of the Public Service Commission in its cases No. 4225, 4226 and 4241, P.S.C. Reports, Mo., Vol. 15, p. 150, and Pub. Serv. Comm. of Mo. v. Missouri Utilities Co. et al., 19 P.S.C. Reports, p. 619.
The petition then alleges that in the first Sikeston opinion this court held the city estopped because: — Relator then states his interpretation of this court's opinion in the first Sikeston case and his conclusions in regard thereto. We shall endeavor to summarize said conclusions.
1. Because the city permitted the Utilities Company to operate without franchise from December 16, 1922, till July 15, 1931, without objection;
2. During said nine year period the city collected taxes on respondent's property, including a license tax, the latter paid to July 1st, 1932;
3. During said period the state collected from respondent a franchise tax;
4. Because the city appeared at a hearing before the Public Service Commission when the Utilities Company requested and received the Commission's orders permitting and approving its purchase of the property (at Sikeston, among other places) and its issuance of "stocks, bonds and other forms of indebtedness" and received the Commission's approval of the "right to engage in the electric business in said city;"
5. Because the city accepted said orders of the Commission and thereafter, for more than six years the Utilities Company operated in said city without objection.
The petition then alleges relator's reasons for claiming the holding in said first Sikeston case no longer applies. Again we shall attempt to summarize; —
1. Mere inaction, or "standing...
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