State ex rel. St. Louis Underground Service Co. v. Murphy
| Citation | 34 S.W. 51,134 Mo. 548 |
| Parties | The State ex rel. St. Louis Underground Service Company v. Murphy, Street Commissioner |
| Decision Date | 02 June 1896 |
| Court | United States State Supreme Court of Missouri |
This is an original proceeding by mandamus, the purpose of which is to require respondent Murphy, as street commissioner of the city of St. Louis, to grant relator a permit to construct conduits beneath the surface of Chestnut street in pursuance of contracts claimed to have been made with the city under ordinances.
The case was heard on a demurrer to respondent's return, and the demurrer was overruled. Relator, under a leave of court, has answered the return. Evidence was taken and the questions in issue have been argued and the case is now to be determined upon its merits.
A full statement of the pleadings will be found to accompany the former opinion. Most of the evidence was also then on file and was treated in the argument on the demurrer and in the opinion as forming a part of the record.
The answer of relator is, in substance, a denial of the allegation of the return.
The answer, by way of new matter, averred that its articles of association had been amended since the commencement of this proceeding, whereby its purposes are more distinctly set out as follows:
"This company is organized for the purposes of laying out, constructing, maintaining, and operating conduits or subways, pipes, mains, conductors, manholes, and service pipes in the streets, alleys or other public places in the cities of this state and elsewhere, to be used in distributing and maintaining a line or lines of electrical and other wires owned by this company or others, together with all necessary feeders and service wires and other electrical conductors and when used for the wires of others upon reasonable and just compensation; and to acquire and hold all necessary or useful grants, to occupy and use the streets, avenues, alleys, and other public places for the purposes aforesaid; to acquire and hold such property, real and personal, and incorporeal, as may be requisite and necessary in the premises; to make all necessary leases, contracts and other agreements as may be required to carry out the purposes of the company; to make proper by-laws, and to do and perform all such matters and things as may be necessary and usual for the effectual consummation of the purposes for which the company is formed."
The answer, also, for the purpose of showing the intention of the parties in making the contracts, and granting the franchises, evidenced by the ordinances, stated at length the situation in the city of St. Louis in respect to the manner in which electricity was then carried, the inconvenience and danger of such methods, and the necessity of providing for placing electric wires underground.
It charges that electric wires, for all the uses to which they are applied, are for the benefit of the public, as well as for the private gain of the owners, and that its subways
The new evidence introduced bore upon the character of the uses to which electric wires are applied for the purpose of showing that all such uses are public in their nature; the inconvenience and danger of overhead wires, and the necessity, convenience and economy of placing them underground, and in one subway.
I. We are unable to perceive that the answer of relator, the amendment of its charter and the supplementary evidence now before us, have so changed the situation as to require a different conclusion from that reached upon the former hearing.
On that hearing it was held that the city, under its charter rights, has the power to control and regulate the public use of its streets and public grounds, not only upon, but if public safety requires it, above and beneath its surface, and, in the exercise of its general police powers, it may require all electric wires, whose use are of a public character, to be placed underground. But it was held further that the unconditional and uncontrolled grant contained in these ordinances, was essentially for the private use of the grantee and its assigns to which the city had no power to devote its streets.
No claim was made on the first hearing, nor indeed can it be justly made now, that relator proposes to deal directly with the public. At most it only proposes for its own private gain to furnish others the instrumentalities by means of which they may subserve the public interest. Over the use, sale, assignment, or lease of these instrumentalities the city has expressly reserved no control or management. The business thus proposed can no more be denominated public than could that of manufacturing electric wires for the use of a telegraph company, or rails for use in the track of a railroad, or pipes for conducting water or gas through the streets. A single instrument, though a necessary part of a public work, is not a public instrumentality for the manufacture of which the power of eminent domain could be exercised even by the state. The use to which it may be applied is not the test of its public character. The use to which the entire work, and not parts of it, are to be applied, is the proper test.
The city of St. Louis made an unconditional lease of a portion of its public wharf to an elevator company to be used for erecting and maintaining a warehouse for the storing and handling of grain and other merchandise in connection with the use of its elevator. The power of the city to make the lease was questioned. This court held that while the city had power to lease its unused wharf for the purposes specified in the lease, it...
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