State ex rel. Garner v. Missouri & Kansas Telephone Co.

• Decision Date: 01 June 1905
• Parties: THE STATE ex rel. GARNER, Relator, v. MISSOURI & KANSAS TELEPHONE COMPANY
• Court: Missouri Supreme Court

88 S.W. 41

189 Mo. 83

THE STATE ex rel. GARNER, Relator, v. MISSOURI & KANSAS TELEPHONE COMPANY

Supreme Court of Missouri

June 1, 1905

Rehearing Denied 189 Mo. 83 at 103.

Writ denied.

R. J Ingraham, O. H. Dean, E. E. Yates, Garland M. Jones and James W. Garner for relator.

(1) Prima facie the ordinance is reasonable and enforceable. The burden is upon respondent, at every point, to establish the proposition that it should not be enforced. Tel. Co. v Phila., 23 S.Ct. 817; Railroad v. State, 186 U.S. 257. And relator, by having the survey of the assets of respondent made, and by the introduction of the evidence, did not change this rule as to the burden of proof. Bolan v Co., 127 Mo. 525. (2) Respondent being engaged in a business of a public nature, enjoying by grant from the State the sovereign power of eminent domain, is subject, as to business within the State, to reasonable regulation by the State, unless it has, by proper legal constitutional measures, secured immunity therefrom. Munn v. State, 94 U.S. 113; Railroad v. State, 94 U.S. 155; Peik v. Railroad, 94 U.S. 165; State ex rel. v Murphy, 145 Mo. 573; Stone v. Loan and Trust Co., 116 U.S. 307; State v. Tel. Co., 61 S.C. 83; Hockett v. State, 105 Ind. 250; Tel. Co. v. Bradbury, 106 Ind. 1; Tel. Co. v. State, 118 Ind. 194; State v. Tel. Co., 17 Neb. 126; Granger Cases, 94 U.S. 179; Ruggles v. State, 108 U.S. 526; Water Works v. Schloter, 110 U.S. 347; Railroad Commission Cases, 116 U.S. 347; Ouachita Packet Co. v. Aiken, 121 U.S. 444; Dow v. Beidelman, 125 U.S. 680; Railroad v. State, 118 U.S. 568; State v. Smith, 128 U.S. 174; Ferry Co. v. State, 114 U.S. 217; Chicago v. State, 134 U.S. 418; Chicago v. Wellman, 143 U.S. 339; Minneapolis v. State, 134 U.S. 467; Budd v. State, 143 U.S. 517; Budd v. State, 117 N.Y. 19; Brass v. Stoesor, 153 U.S. 391; Reagan v. F.C.T. Co., 154 U.S. 362; St. Louis, etc., v. Gill, 156 U.S. 649; Cov. T. Pike v. Sanford, 164 U.S. 578; Smyth v. Ames, 169 U.S. 466; Water Co. v. Fergus, 180 U.S. 587; State v. Tel. Co., 47 F. 636; Paterson v. State, 97 U.S. 501; State ex rel. v. Associated Press, 159 Mo. 410; State ex rel. v. Water Works, 52 Mo.App. 312; Matthews v. Railroad, 121 Mo. 298; Haugen v. Co., 21 Ore. 418; People v. Railroad, 130 Ill. 175; Leavel v. Tel. Co., 116 N.C. 29; State v. Gas Co., 34 Ohio 572; Zanesville v. Gas Co., 47 Ohio St. 1; Hudson v. State, 24 N.J.L. 718; Johnson v. State, 113 Ind. 143; State v. Tel. Co., 36 Ohio St. 296; Tel. Co. v. Tel. Co., 66 Md. 399; St. Louis v. Tel. Co., 96 Mo. 623; State v. Tel. Co., 61 S.C. 83. In considering the question of whether or not it has been released from the visitorial power of the State, courts have always construed measures strictly against the corporation. The State will never be presumed, upon a doubtful construction, to have parted with so important a right. Stone v. Loan and Trust Co., 116 U.S. 325; Ruggles v. State, 108 U.S. 526; Railroad v. State, 183 U.S. 503; Newton v. Com., 100 U.S. 548; State v. Gas Co., 34 Ohio St. 572; Zanesville v. Gas Co., 47 Ohio St. 1; Railroad v. Miller, 132 U.S. 75; Matthews v. Railroad, 121 Mo. 324; R. R. Comrs. v. Railroad, 61 Me. 279; Railroad v. State, 134 U.S. 454; Covington v. Sanford, 164 U.S. 578. (3) If the State has not parted with its rights of regulation as between it and respondent, it follows that the city has become possessed of this right, as to local regulation, by transmission from the people of the State under the Constitution of 1875, and by the Enabling Act, passed by the Legislature in 1887, and by the adoption into its charter of the express provision, relating to regulating telephone rates. The matter of telephone rates is one of "local concern." Who would question the right of the city to regulate hackmen, street railway fares, wharfage, drayage, or any similar matter, if it were not limited by some prior contract, or by some lack of power in its charter? Sec. 16, art. 9, Const. Mo. (1875); Laws 1887, pp. 42 to 51; sec. 20, art. 17, charter of Kansas City (1889); sec. 1, art. 3, par. 28, charter (1889). The State has clearly transmitted this power to the city, and the city, therefore, has a clear right to regulate respondent's business. St. Louis v. Bell Tel. Co., 96 Mo. 623. (4) The city, therefore, had the power to pass the ordinance in question. It created a legal right in relator, and places a legal duty upon respondent. The ordinance, supported as it is by express charter power, is of the same force, as to a local matter, as an act of the Legislature would be. The Legislature, since the adoption of the charter by the city, could not legislate on this matter so as to affect Kansas City. Sanders v. Railroad, 147 Mo. 411; Jackson v. Railroad, 157 Mo. 621; Hutchinson v. Railroad, 161 Mo. 246; Weller v. Railroad, 164 Mo. 180; Cox v. Railroad, 74 S.W. 854. (5) Mandamus is a proper remedy. Cumberland L. and T. Co. v. Railroad, 51 La. Ann. 29; R.S. Comrs. v. Railroad, 61 Me. 279; People v. Railroad, 28 Hun 543; Railroad v. Hall, 91 U.S. 343; Ouachita Packet Co. v. Aiken, 121 U.S. 444; State ex rel. v. Railroad, 79 Wis. 262; State ex rel. v. Railroad, 87 Wis. 79; State ex rel. v. Tel. Co., 23 F. 540; State ex rel. v. Tel. Co., 47 F. 636; State ex rel. v. Railroad, 83 F. 284; U. S. v. Railroad, 3 Dill. (U.S.) 524; Water Co. v. Fergus, 178 Ill. 571; State ex rel. v. Joplin Water Works, 52 Mo.App. 317; State v. Tel. Co., 61 S.C. 83; State ex rel. v. St. Louis, 145 Mo. 593; State v. Tel. Co., 17 Neb. 136.

Rozzelle, Vineyard & Thacher, John C. Tarsney and W. M. Williams for respondent.

(1) Kansas City had no power to enact the ordinance fixing telephone rates. The only claim by relator of power in the city to enact this ordinance is the 28th subdivision of section 1 of article 3 of the city charter. It is not claimed that the General Assembly ever delegated to the city power to fix the rates of telephone or telegraph companies. It is further contended by relator that the authority of the framers of the city charter to insert this provision authorizing the city to fix the rates of telephone and telegraph companies is derived (a) from the Constitution, (b) from section 51 of the Enabling Act. 1. The grant of power by the Constitution, under which Kansas City adopted its charter, authorizes any city having a population of more than one hundred thousand inhabitants to "frame a charter for its own government," but this includes only the right to provide for matters of "purely local concern," pertaining strictly to municipal government. It does not authorize the city, of its own volition, to take from the General Assembly, and confer upon itself, the sovereign power of the State to fix the charges of telephone and other public service corporations created by the State and empowered by it to make such charges. Tacoma El. L. & G. Co. v Tacoma, 44 P. 655; Kansas City v. Scarritt, 127 Mo. 650; State v. Field, 99 Mo. 356; Badgley v. St. Louis, 149 Mo. 122; State v. McKee, 69 Mo. 506; State v. Finn, 8 Mo.App. 348; State v. Dolan, 93 Mo. 473; Kansas City v. Stegmiller, 151 Mo. 205; Young v. Kansas City, 152 Mo. 662; Ewing v. Hoblitzelle, 85 Mo. 77; State ex rel. v. St. Louis, 145 Mo. 574; Murphy v. Railroad, 153 Mo. 255; St. Louis v. Tel. Co., 96 Mo. 623; St. Louis v. Tel. Co., 149 U.S. 471; State ex rel. v. City of Sheboygan, 111 Wis. 23; Mills v. Chicago, 127 F. 731; State ex rel. v. Weir, 67 P. 226. 2. The regulation of telephone rates is not a matter of local concern and strictly within the domain of purely municipal government. Respondent was incorporated under and derives its powers from and its duties are prescribed by the statutes of the State relating to the incorporation of telegraph and telephone companies. R.S. 1899, ch. 12, art. 7; St. Louis v. Tel. Co., 96 Mo. 623; State ex rel. v. St. Louis, 145 Mo. 574. Statutes of Wisconsin, Michigan, Minnesota, New York, New Jersey, Iowa, Kansas and other States, invest telephone companies with the same powers and impose upon them practically the same duties as the Missouri statutes. State ex rel. v. City of Sheboygan, 111 Wis. 23; Tel. Co. v. Benton Harbor, 121 Mich. 512; Tel. Ex. Co. v. Minneapolis, 81 Minn. 140; Duluth v. Tel. Co., 84 Minn. 486; Rochester v. Tel. Co., 64 N.Y.S. 804; Township of Summit v. Tel. Co., 57 N.J.Eq. 123; Chamberlain v. Tel. Co., 93 N.W. 596; Abbott v. Duluth, 104 F. 833. Respondent obtained its right to charge toll from the State; and the power to regulate the same is inherent in the State, in its sovereign capacity, and is not vested in Kansas City. State ex rel. v. St. Louis, 145 Mo. 574; State ex rel. v. Murphy, 134 Mo. 573 (not overruled on this point); St. Louis v. Tel. Co., 96 Mo. 623; St. Louis v. Tel. Co., 149 U.S. 471; R.S. 1899, secs. 1247, 1251, 1254, 1256; Tacoma Gas & Elec. L. Co. v. Tacoma, 44 P. 655; Africa v. Mayor & Aldermen, 70 F. 729; State ex rel. v. Weir, 67 P. 226. This power inheres in the State in its sovereign capacity, and can only be conferred upon municipal corporations by express delegation from the State Legislature. In re Pryor, 55 Kan. 724; Tacoma Gas & Elec. L. Co. v. Tacoma, 44 P. 655; Africa v. Mayor & Aldermen, 70 F. 729; State ex rel. v. City of Sheboygan, 86 N.W. 657; Noblesville v. Gas Co., 157 Ind. 162; Gas Co. v. State, 135 Ind. 49 (overruling Rushville v. Gas Co., 132 Ind. 575); Tel. Co. v. City of Benton Harbor, 121 Mich. 512. The charter of respondent received from the State granted it the power to "construct, own, operate and maintain lines of telephone between such points as it might from time to time determine, and to make such reasonable charges for the use of same as it might establish." To change this will require an amendment of the law constituting respondent's charter, which can only be done by the General Assembly. In re Pryor,...