State v. Gates

• Citation: 190 Mo. 540,89 S.W. 881
• Parties: STATE ex rel. ABEL et al. v. GATES, Judge.
• Decision Date: 25 October 1905
• Court: United States State Supreme Court of Missouri

89 S.W. 881

190 Mo. 540

STATE ex rel. ABEL et al. v. GATES, Judge.

Supreme Court of Missouri.

October 25, 1905.

1. PROHIBITION—PETITION—HEARING IN SUPREME COURT.

The Supreme Court, on the hearing of an application for a writ to prohibit a circuit court from entertaining jurisdiction of a suit, will not determine the sufficiency of the petition in the suit in the circuit court within the jurisdiction of the court and issue the writ on the ground that it is feared that the circuit court will erroneously decide that the petition is sufficient.

2. SAME—JURISDICTION OF LOWER COURT.

Where a suit is within the jurisdiction of the circuit court, it has jurisdiction to decide whether the petition states a cause of action and to determine the issues arising in the suit, without interference by the Supreme Court, by writ of prohibition.

3. CONSTITUTIONAL LAW—JUDICIAL POWER— ENCROACHMENT ON LEGISLATIVE DEPARTMENT.

Const. art. 3, providing for three departments of government and declaring that no person charged with the exercise of powers belonging to one department shall exercise any power belonging to either of the others, prohibits the judiciary from enjoining the General Assembly from passing a proposed statute or compelling it by mandamus to do so.

4. SAME.

The common council of a city is not a part of the legislative department of the state, within Const. art. 3, providing for the legislative, executive, and judicial departments, and is not free from judicial control, except when exercising legislative power conferred by law, and an ordinance may be assailed on the ground that its passage was obtained by fraud.

5. MUNICIPAL CORPORATIONS—ORDINANCES— JUDICIAL CONTROL.

A common council is, when exercising its ministerial or administrative powers, though in the form of ordinances, subject to judicial control.

6. SAME.

A municipality, granting by ordinance to individuals named and their assigns the right to use the streets in which to lay pipes and erect necessary works to supply natural gas to the inhabitants thereof for 30 years, etc., exercises ministerial or administrative powers; and the action of the municipality is subject to judicial review, when the scheme is the result of fraud, whereby property rights of the municipality are disposed of without authority.

Marshall, J., dissenting.

In Banc. Application for writ of prohibition by the state, on the relation of Wm. Abel and others, against Edward P. Gates, judge of the circuit court of Jackson county, to prohibit respondent from entertaining jurisdiction of a cause. Writ denied.

Gage, Ladd & Small, Rozzelle, Vineyard & Thacher, Scarritt, Griffith & Jones, Evans & Finley, and W. C. Gulbertson, for relator. Isaac Kimbrell, Frank Hagerman, Cowherd & Ingraham, and Reed, Yates, Mastin & Howell, for respondent.

VALLIANT, J.

The relators pray that a writ of prohibition issue, addressed to the respondent, a judge of the circuit court of Jackson county, to prohibit him from entertaining jurisdiction of a cause pending in that court. The cause in question is a suit in equity instituted in the name of the state of Missouri, on the information and at the relation of the prosecuting attorney of Jackson county, plaintiff, against Kansas City and certain individuals, named, as members of the common council of that city, the city clerk, city comptroller, city treasurer, city auditor, the Kansas City Missouri Gas Company, a corporation, and four unofficial individuals named as promoters of the project or scheme therein assailed. The defendants in the suit in equity are the relators in this proceeding. The statements in the petition in the equity suit are substantially to the following effect:

In 1865 a corporation was organized under the laws of this state to manufacture and furnish gas to Kansas City and its inhabitants, and a contract was entered into between that corporation and the city in which the use of the streets was granted for that purpose, and the corporation was to furnish gas to the people for $1.75 per 1,000 cubic feet for a period of 30 years. In 1895 the life of that corporation expired by its own charter limitation. In January, 1895, a new gas corporation, called in the brief the Snyder Company, was organized and entered into a contract with the city to furnish gas to the people until 1925 at the price of $1 per 1,000 feet. In August, 1895, a similar corporation was organized, called in the brief the Payne Company, with which the city made a like contract for the same period. The Payne Company was practically the old 1865 company and succeeded to its tangible property. The Snyder Company built its works and laid its pipes. The effect of the two companies competing for trade was that the price of gas was reduced to 50 cents per 1,000 feet. In 1897 the two companies by agreement with the city were allowed to consolidate and operate as one, under the name of the Kansas City Missouri Gas Company, which is one of the defendants in the equity suit. Immediately after the consolidation the price of gas went up to $1 per 1,000 feet. Under the contracts of 1895 with the Snyder and Payne Companies certain obligations were imposed on them and certain rights acquired by the city, among which were: First, the obligation of the companies each, to furnish manufactured gas for the term of 30 years—that is, until 1925—for $1 per 1,000 feet; second, to sell their plants to the city at any time after 1907 at a valuation to be ascertained in a manner therein specified; third, to hold their franchises subject to the provisions of the city charter, among which was that they should not be renewed or extended before the last two years of their existence—that is, not before 1923. These obligations of the companies and rights of the city were continued in the contract with the consolidated company, wherein it was also stipulated that the basis of the valuation of the property, when the city should elect to purchase it, should be the then actual value of the physical property "exclusive of the value of the stock, unexpired franchise, earning capacity," etc., or, as construed by the counsel for the respondent, the value of old iron and material. The consolidated company, the Kansas City Missouri Gas Company, was in the field operating under that contract and subject to those conditions in 1904, when natural gas in great quantities was discovered to exist in the vicinity of Kansas City. After this discovery five different companies or associations were formed, each for the purpose of engaging in the business of furnishing natural gas to the inhabitants of Kansas City, and each made application to the common council for authority to construct works, lay pipes and mains in the streets, etc., for this purpose. Thereupon the Kansas City Missouri Gas Company, with the unofficial individual defendants above referred to, conspired with certain others, including members of the five proposed competing companies above mentioned, to shut off the threatened competition and obtain for themselves and their co-conspirators a monopoly of the business, besides the annulment of the city's rights and the consolidated company's obligations above mentioned, and that by the means presently mentioned did, on December 7, 1904, obtain the passage through the common council of an ordinance numbered 27,459, the nature of which will be presently mentioned. That ordinance was vetoed by the mayor on December 9, 1904. On April 27, 1904, an ordinance numbered 28,549, identical in title and of similar purport, except in points of minor detail, was passed by the common council, and was, at the time of filing the original petition in the equity case, pending before the mayor for his approval or veto. The mayor has since vetoed that ordinance also, and the defendants, who are members of the council, are now threatening to, and will unless restrained, pass it over the veto. Upon the filing of the petition in the equity suit, the respondent, the judge of the circuit court, issued a temporary restraining order enjoining the members of the common council and other city officers from passing, signing, or giving effect to either of the proposed ordinances and enjoining the grantees from accepting the same. Thereupon the defendants in that suit filed their petition in this court for a writ of prohibition. It is unnecessary to set forth in full the first ordinance, No. 27,459, or the second one, No. 28,549, now pending before the common council on a proposition to pass it over the mayor's veto.

For the purpose of determining whether a writ of prohibition shall issue as prayed, it is sufficient to say of the contents of the last-named ordinance, as stated in substance in the petition in the equity suit, that it proposes to grant to the unofficial individuals named therein as defendants and their assigns the right to use the streets in which to lay pipes and erect necessary works to supply natural gas to the inhabitants of the city for a period of 30 years, authorizes them to acquire the property of the Kansas City Missouri Gas Company and exercise the rights now possessed by that company, and when they shall have taken over the property and rights of the company they are relieved of the obligation to furnish manufactured gas (which the petition says is superior and safer than natural gas) on the terms and at the price in the existing contract required, yet extends the rights that the present gas company has under existing contracts for a period of 10 years beyond its present contract limit, contrary to the charter provision that it should not be extended or renewed until within two years of the expiration of its limit, and annuls the city's right to purchase the property on the advantageous terms mentioned. Counsel for relators, in their brief, contend that the proposed ordinance does not relieve the grantees therein of the obligation to furnish manufactured gas at the stated price, and in support of their...