State v. Light & Development Co. of St. Louis

• Decision Date: 10 December 1912
• Citation: 152 S.W. 67,246 Mo. 618
• Court: Missouri Supreme Court
• Parties: STATE, on Inf. of JONES, Circuit Atty., ex rel. CITY OF ST. LOUIS, v. LIGHT & DEVELOPMENT CO. OF ST. LOUIS.

152 S.W. 67

246 Mo. 618

STATE, on Inf. of JONES, Circuit Atty., ex rel. CITY OF ST. LOUIS, v. LIGHT & DEVELOPMENT CO. OF ST. LOUIS.

Supreme Court of Missouri.

December 10, 1912.

Rehearing Denied December 21, 1912.

1. QUO WARRANTO (§ 31) — PROCEEDINGS — MUNICIPALITY.

A municipality may appear as relator in quo warranto proceedings to oust a light company from its franchise to use the city streets.

2. ELECTRICITY (§ 4) — FORFEITURE OF FRANCHISE — NONUSER.

A franchise to use the streets of a municipality for the erection of poles and wires for the transmission of electricity carries with it an implied condition of the furnishing of such services, and the continued nonuser of the grantee of the franchise for a long period of time will forfeit his rights.

3. ELECTRICITY (§ 4) — FORFEITURE OF FRANCHISE — NONUSER — INTENTION TO RESUME.

An intention to resume at some indefinite future time the furnishing of electricity for light and power will not avoid the forfeiture of a franchise to use the city streets for nonuser.

4. ELECTRICITY (§ 4) — FORFEITURE OF FRANCHISE — ABILITY TO RESUME.

Where a franchise to use the city streets to furnish electric power and light has been lost by over 20 years' nonuser, the right of the state to forfeit the franchise on quo warranto cannot be barred because the holder is then able and desirous of resuming, there being no occasion for the state to assert the forfeiture until there is an attempt to resume.

5. MUNICIPAL CORPORATIONS (§ 690) — FRANCHISE TO USE STREETS — FORFEITURE — WAIVER — MINISTERIAL OFFICERS.

Ministerial officers of a city who are authorized to pass on the sufficiency of a public service corporation's bond and the like cannot waive as against the city a ground for the forfeiture of such corporation's franchise to use the streets.

6. MUNICIPAL CORPORATIONS (§ 690) — FRANCHISE IN STREETS — FORFEITURE — WAIVER — OPINION OF CITY COUNSELOR.

The opinion of the city counselor that a franchise of a public service corporation to use the streets is valid is not binding on the city, so as to work an estoppel to declare a forfeiture.

7. ESTOPPEL (§ 62) — MUNICIPAL CORPORATIONS (§ 690) — FORFEITURE OF FRANCHISE — WAIVER.

A municipal corporation cannot be subjected to the doctrine of estoppel in pais except when acting in its proprietary as distinguished from its governmental capacity; hence grounds for the forfeiture of the franchise of a public service corporation authorized to use the city streets cannot be waived by the municipality or barred by its estoppel in pais, unless the franchise was granted in its proprietary capacity.

8. MUNICIPAL CORPORATIONS (§ 690) — GOVERNMENTAL POWER — MUNICIPAL "FRANCHISE" TO USE STREETS — FORFEITURE — "CONTRACT" — "LICENSE."

The grant by a municipality of a franchise to use its streets is the exercise by delegation of a power which resides in the state, and which is by its nature governmental; hence, if grounds for forfeiture arise, the state may alone enforce it, and may alone waive it; for a franchise may be said to be a grant from the state to a corporation of authority to occupy the city streets, "licenses" to be the designation by the city council of the streets to be occupied, and "contracts" the stipulated arrangements between the companies and the city as to the manner of occupancy.

For other definitions, see Words and Phrases, vol. 2, pp. 1513-1534; vol. 8, pp. 7615-7616; vol. 3, pp. 2929-2942; vol. 8, p. 7666; vol. 5, pp. 4137-4141; vol. 8, p. 7706.]

9. ESTOPPEL (§ 56) — EQUITABLE ESTOPPEL — ESTOPPEL IN PAIS.

The right of a municipality to enforce a forfeiture of a franchise to use the city streets for the conducting of electricity cannot be barred by equitable estoppel, where the holder of the franchise has not changed his position in reliance on the acts of the officers of the municipality.

10. ELECTRICITY (§ 4) — FRANCHISE — NONUSER — ORDINANCES.

To come within the exception of St. Louis Ordinance No. 16894, which amended Ordinance No. 12723, providing that any one might use the city streets for the furnishing of electricity by enacting that no one should use such streets except those who had previous to the passage of the last ordinance accepted and complied with the original one, one claiming a franchise under the original ordinance must show that he not only filed the required bond, but that he actually performed the public duty of furnishing electricity.

In Banc. Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Information in the nature of quo warranto by the State, upon the information of Seebert G. Jones, Circuit Attorney, at the relation of the City of St. Louis, against the Light & Development Company of St. Louis. From a judgment of ouster, respondent appeals. Affirmed.

In March, 1884, the municipal assembly of the city of St. Louis enacted an ordinance No. 12723, with the following title: "An ordinance regulating the placing of wires, tubes or cables conveying electricity for the production of light or power along the streets, alleys and public places of the city of St. Louis." The ordinance provides that all wires and poles placed be installed in such manner as may be approved by the board of public improvements, which body is authorized to grant permits for such installation. It contains some general provisions as to character and placing of poles, also as to excavations and restoration of streets. Section 10, under which appellant claims the franchise in controversy, reads as follows: "No person or persons, corporation or association, shall be entitled to any of the privileges conferred by this ordinance, except upon the following conditions: That said person or persons, corporation or association, before availing himself or itself of any of the rights or privileges granted by this ordinance, shall file with the city register his or its acceptance of all the terms of this ordinance, and agree therein that he or it will file with the comptroller of the city, on the first days of January and July of each year, a statement of his or its gross receipts from his or its business arising from supplying electricity for light or power for the six months next preceding such statement, which shall be sworn to by such person or persons, or the president or secretary of such corporation or association; and further agree that he or it will, at the time of filing said statement with the comptroller, pay into the city treasury two and one-half per cent. on the amount of such gross receipts up to the year 1890, and five per cent. on the amount of such gross receipts thereafter. And said person or persons, corporation or association shall, at the time of filing said acceptance, also file with the city register his or its penal bond in the sum of $20,000, with two or more good and sufficient securities, to be approved by the mayor and council, conditioned that he or it will comply with all the conditions of this ordinance, or any ordinance which may be hereafter passed regulating the placing of wires, tubes or cables in the streets and alleys for the purposes named therein; that he or it will comply with all the regulations made by the board of public improvements having reference to the subject embraced in this or any other ordinance for the purposes herein named; that he or it will make the statements and payments required by the provisions of this section, and will save the city of St. Louis harmless and indemnified from all loss, cost or damages by reason of the exercise of any of the privileges granted by this ordinance or any other ordinance which may be hereafter passed relating to the subject matter of this ordinance." Section 11 provides a penalty for violation of the provisions of the ordinance. In 1892 the following amendment was adopted: "That no wires, tubes or cables conveying electricity for the production of light, heat or power, shall hereafter be placed along or across any of the streets, alleys or public places in the city of St. Louis, by any person, corporation or association not having, previous to the passage of this ordinance, accepted and complied with ordinance number twelve thousand seven hundred and twenty-three, now amended, or shall be duly authorized by the Municipal Assembly, and then only as hereinafter provided." In July, 1884, Aloe, Hernstein & Co., a commercial firm dealing in optical instruments and appliances at the corner of Fourth and Olive streets, in St. Louis, filed its acceptance of ordinance No. 12723 as follows: "St. Louis, July ___, 1884. Mr. Nicholas Berg, Register, City of St. Louis. — Dear Sir: We, Aloe, Hernstein & Co., hereby accept all the terms of ordinance No. 12,723 of the city of St. Louis, entitled, `An ordinance regulating the placing of wires, tubes or cables conveying electricity for the production of light or power along the streets, alleys or public places of the city of St. Louis.' Approved March 15th, 1884. And hereby agree that we will file with the comptroller of the city of St. Louis, on the first day of January and July of each year a statement of gross receipts from the business arising from supplying electricity for light or power, for the six (6) months next preceding such statement of its gross receipts, which shall be sworn to by Aloe, Hernstein & Co. And we further agree that we will at the time of filing said statement with the comptroller pay into the city treasury two and one-half (2½) per cent. on the amount of such gross receipts thereafter. Respectfully, Aloe, Hernstein & Co."

Bond was also given as required by the ordinance. This firm had in the basement of its store an electrical generating plant. Since 1881 the firm had been lighting its own premises, and also furnishing light to a few of its neighbors. It continued to do so until 1887 mainly by wires strung over house tops. Some wires were strung on poles, but whether the poles were owned by the firm does not clearly appear. The record shows three semiannual...