State v. Cupples Station Light, Heat & Power Co.

• Citation: 283 Mo. 115,223 S.W. 75
• Decision Date: 18 May 1920
• Docket Number: No. 20330.,20330.
• Court: United States State Supreme Court of Missouri
• Parties: STATE ex rel. McALLISTER, Atty. Gen., v. CUPPLES STATION LIGHT, HEAT & POWER CO.

223 S.W. 75

283 Mo. 115

STATE ex rel. McALLISTER, Atty. Gen., v. CUPPLES STATION LIGHT, HEAT & POWER CO.

No. 20330.

Supreme Court of Missouri, in Banc.

May 18, 1920.

Rehearing Denied June 19, 1920.

Quo warranto by the State of Missouri, on the relation of Frank W. McAllister, Attorney General, against the Cupples Station

Light, Heat & Power Company. Writ of ouster denied, and proceeding dismissed.

This is a proceeding by quo warranto, in which the state, at the relation of the Attorney General, seeks to have this court determine by what authority the respondent claims to have the right to occupy certain of the public ways of the city of St. Louis in the prosecution of its business of furnishing the public with electric light, heat, and power. Upon the filing of the petition, an order to show cause was duly issued and respondent made its return thereto, making certain issues of law and of fact. Thereupon, Hon. Charles G. Revelle was appointed a commissioner to hear the evidence and report upon the facts and the law involved. Much evidence was heard, and the Commissioner has filed his report, to which both parties have filed numerous exceptions. The cause is now submitted for judgment.

The petition, after proper formal allegations, in substance avers that by ordinances duly enacted the city of St. Louis has provided that the right to use the public ways of that city in the business in which respondent is engaged shall be granted only by ordinances duly enacted by the lawfully constituted authorities of that city, and that any corporation to which such rights shall be so granted shall also procure a permit from the board of public service of St. Louis, authorizing it to use the public ways of the city in its business; that no such right has been granted to respondent as by law required, but that respondent, nevertheless, has been granted a permit by the board of public service so to use said ways of said city; that by Ordinance No. 18680, duly adopted by the city of St. Louis, the placing of means of conveying electricity above ground within certain designated portions of said city was prohibited after December 31, 1898; that it was further provided by said Ordinance No. 18680 that any corporation which was at the date of the adoption of said ordinance, to wit, September 8, 1896, or which within 90 days thereafter should be authorized to transmit electricity for public use, and which desired to place tubes, wires, conduits, or cables under the surface of the public ways of said city, would be authorized so to do after receiving a permit therefor from the Board of Public Service aforesaid, and by said Ordinance 18680 said board was directed to fix a day, not more than 90 days after the adoption of said ordinance, upon which any corporation desiring such permit should apply therefor to said board, in writing, specifying "its requirements," and providing that a failure so to apply should operate to exclude such corporation so in default from obtaining "conduit facilities" in the streets in said territory, and providing further that said board should issue such permits to corporations duly applying therefor upon the filing with the city register of said city of bonds conditioned as by said ordinance required, and an acceptance of the provisions of said Ordinance No. 18680; that respondent filed the required bonds and acceptance; that there was then in force in said city an ordinance providing for the filing by such corporation, on certain named dates, of a statement of gross receipts and the payment of a five per centum tax thereon; that compliance with said ordinance was one of the conditions of the bonds and acceptance required as above set out; that respondent duly filed said statements until January 1, 1901, but rendered no public service; that on February 8, 1901, respondent notified the comptroller of said city that it would file such statements and pay such tax no more, and that it would thenceforth permit "Washington University [an incorporated educational institution] to use its conduits free of charge to supply electric light and power to the tenants of Washington University only." Relator avers that respondent has by these acts forfeited its franchise, if any it had, and prays a judgment of ouster against it.

In its return respondent alleges that it is lawfully exercising its franchises and powers granted by its articles of incorporation under the provisions of ordinances of the city of St. Louis numbered as follows, to wit: Ordinance No. 12723, approved March 15, 1884; Ordinance No. 16894, approved October 26, 1892; and Ordinance No. 18680, known as the "Keyes Ordinance," approved September 8, 1896, and various amendments thereto—all of which, so far as may be necessary will be discussed later. It then avers that, before the expiration of the 90-day period after the passage of Ordinance No. 18680, it was duly authorized "to operate wires, tubes and cables conducting, transmitting and employing electricity for public use, and that it did; on or about the 4th day of December, 1896, file with the city register its written acceptance" as in said ordinance provided, and gave the bonds therein required, and then avers that "respondent has reported its gross receipts to the comptroller of the city of St. Louis from 1897 down to the present time and has paid to the city 5 per cent. of its said gross receipts from that time to the present time"; that within the 90-day period allowed for that purpose by Ordinance No. 18680 it applied to the proper board for a permit as by said ordinance required, and duly received such permit, and since that time it has received various similar permits from the proper authorities of said city, and, in accordance with the rights and powers thus obtained, it has installed and operated and is now operating appliances for "transmitting electricity for public use in the city of St. Louis"; and that at the time of the institution of these proceedings it had hi the underground district more than 30 miles of conduits, and in the overhead district more than 31 miles of overhead wires, and was using both for the public service; and that these conduits and wires had been installed under the various ordinances and permits above mentioned, prior to the filing of this proceeding. Respondent then sets out the amount of taxes paid by it to the city and state, aggregating several thousands of dollars, and alleges that it has been continuously in business tram the date when it first qualified as above set forth; that it has been recognized by the State Public Service Commission, by the courts of the state, and by various authorities of the city of St. Louis as a duly qualified electric light and power company; that by competition it has forced better service and cheaper rates in said city; that, the premises considered, its franchise rights ought not now to be questioned; that no public interest is affected by the grounds alleged by petitioner; that respondent's rights are attacked by a private competitor under the name of the state; and that to oust respondent, as prayed in the information, would be detrimental to the public welfare. Various other matters are alleged or denied, and these allegations and denials will be noted hereafter, if necessary. Relator thereupon filed a reply, which consisted largely of denials, but contained some affirmative allegations, which, so far as necessary, will be specified later.

Upon these issues the evidence, reported in several bulky volumes, was heard, and upon this evidence and the law applicable thereto, as he conceives it, the learned Commissioner has filed a report. He has well stated the facts as follows:

"On November 21, 1896, the respondent company was organized and duly incorporated for the purposes and with the charter powers stated in the information, and such purposes and powers embrace all the acts which the respondent is performing and proposes to perform, and authority for which is challenged by this proceeding. Its capital stock was originally $5,000 and so continued until March 17, 1913, at which time it was increased to $1,000,000.

"At the time of and for some years prior to respondent's incorporation, Robert S. Brookings and Samuel Cupples were owners and proprietors, either in their individual names or the names of corporations whose stock they owned, of large and extensive properties and buildings, about 35 in number, occupied, in part, by said Brookings and Cupples for the manufacture, storage, and sale of woodenware products. A part of these properties were occupied by other persons as tenants who were engaged in various lines of business, chiefly wholesale dealers numbering about 32, and such properties became generally known as the `Cuppies Properties.' They were located in that part of the city extending from Sixth to Eleventh streets and from Poplar to Clark.

"Prior to respondent's incorporation, these properties and the occupants thereof, including Brookings-Cupples and their tenants, were furnished with electricity from a rather small plant that had been installed by said Brookings and Cupples. Upon the organization and incorporation of respondent, it took over and began operation of this electrical plant. The said owners of said Cupples properties, who were likewise the incorporators and owners of the capital stock of the respondent, then placed in their contracts of lease and occupancy with their tenants, a clause requiring such tenants to purchase and obtain their electrical current from the respondent, and its said plant, provided the rates made by respondent were as low and the service rendered was as good as could be obtained from other concerns furnishing similar facilities and supplies. The electrical power furnished such tenants was not included in the rental of the property, but was sold and billed directly to the tenants. From the day of its incorporation until the time that its stock was acquired by the ...