State v. Missouri & K. Telephone Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPer Curiam
Citation189 Mo. 83,88 S.W. 41
PartiesSTATE ex rel. GARNER v. MISSOURI & K. TELEPHONE CO.
Decision Date01 June 1905
88 S.W. 41
189 Mo. 83
STATE ex rel. GARNER
v.
MISSOURI & K. TELEPHONE CO.
Supreme Court of Missouri.
June 1, 1905.

1. MUNICIPAL CORPORATIONS — CHARTER— TELEPHONE COMPANIES — REGULATION OF TOLLS—DELEGATION OF AUTHORITY.

Const. Mo. art. 9, § 16, provides that any city having a population of more than 100,000 may frame a charter for its own government, "consistent with and subject to the Constitution and laws of this state," etc. The so-called "Enabling Act" of 1887, providing the means for cities to avail themselves of that constitutional privilege, provides (Acts 1887, p. 51, § 50; Rev. St. 1899, § 6408) that such city shall have exclusive control over its public highways, streets, etc. Section 51 (Rev. St. 1899, § 6409) declares that it shall be lawful for any such city in such charter, or by amendment thereof, to provide for regulating and controlling the exercise by any person or corporation of any public franchise or privilege in any of the streets or public places of such city, whether such franchises or privileges have been granted by said city, or by or under the state or any other authority. Under such act and constitutional provision, Kansas City in 1889 adopted its charter, literally embodying therein said two sections. Article 3, § 1, of the charter provides that the city shall have power by ordinance to regulate the prices to be charged by telephone companies, and to compel them and all persons and corporations using, controlling, or managing electric wires for any purpose to put and keep their wires under ground, and to regulate the manner of doing the same. The "general welfare" clause of the charter authorizes the city to pass any ordinance that "may be expedient in maintaining the peace, order, good government, health and welfare of the city * * * or that may be necessary and proper for carrying into effect the provisions of this charter." Held that, while the enactment by the city of an ordinance fixing the maximum rate to be charged by telephone companies for telephone service in the city was expressly authorized by the charter, the state had not delegated to the city the power to exercise such authority in framing its charter, and the ordinance was void.

2. SAME.

The regulation of prices to be charged by a corporation intrusted with a franchise of a public utility character is within the sovereign power of the state granting the franchise or suffering it to be exercised within its borders, which power may be conferred on a municipal corporation; but it is not a power appertaining to the government of the city, and does not follow as an incident to a grant of power to frame a charter for a city government.

3. SAME—GRANT OF RIGHTS IN STREET—POWER OF LEGISLATURE.

The General Assembly, except as limited in the Constitution, has jurisdiction to grant franchises to be exercised in the streets of the cities and other public highways in the state.

Brace, C. J., dissenting.

[88 S.W. 42]

In Banc. Original proceeding by the state, on the relation of James W. Garner, for a writ of mandamus against the Missouri & Kansas Telephone Company. Peremptory writ denied.

R. J. Ingraham, O. H. Dean, E. E. Yates, Garland M. Jones, and Jas. W. Garner, for relator. Rozzelle, Vineyard & Thatcher, Jno. C. Tarsney and W. M. Williams, for respondent.

PER CURIAM.


On a rehearing, the following opinion by VALLIANT, J., is adopted as the opinion of the court in banc. GANTT, FOX, BURGESS, and VALLIANT, JJ., concur. MARSHALL, J., concurs in the result, for reasons given in his separate opinion. LAMM, J., dubitante. BRACE, C. J., dissents.

VALLIANT, J.

This is an original proceeding in this court to obtain a writ of mandamus. Respondent is a telephone company, incorporated under the laws of this state, engaged in furnishing telephone service in Kansas City and adjacent territory. It was incorporated in 1882 under article 5, c. 21, Rev. St. 1879 (now article 6, c. 12, Rev. St. 1899), and has ever since the date of its incorporation owned and operated a system of telephones in Kansas City. In September, 1902, Kansas City adopted an ordinance fixing the maximum rate to be charged by telephone companies for their service in that city. The relator requested the respondent to furnish him a telephone and telephone service in his office at the maximum rate fixed by the ordinance, which he tendered, but the respondent refused to furnish it at that rate, whereupon relator instituted this suit to compel respondent to do so. Respondent in its return pleads several defenses. The one which is of first importance is that the city had no authority to enact the ordinance. If respondent is correct in that proposition, there will be no necessity for looking into the other defenses pleaded.

Prior to the adoption of what is called the "Freeholders' Charter," which was in 1889, Kansas City had a special charter, first granted in 1853, and afterwards several times amended, but there was nothing in it authorizing the city to regulate telephone companies or fix the rates to be charged for telephone service. Section 16, art. 9, of our Constitution adopted in 1875 ordains: "Any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state," etc. In 1887 (Acts 1887, p. 42) the General Assembly passed an act which in the briefs is called an "Enabling Act," the object of which was to provide the means for cities to avail themselves of that constitutional privilege and form their own charters. In that act were the following two sections:

"Sec. 50. Such city shall have exclusive control over its public highways, streets, avenues, alleys and public places, and shall have exclusive power, by ordinance, to vacate or abandon any public highway, street, avenue, alley or public place, or part thereof, any law of this state to the contrary notwithstanding.

"Sec. 51. It shall be lawful for any such city in such charter, or by amendment thereof, to provide for regulating and controlling the exercise by any person or corporation of any public franchise or privilege in any of the streets or public places of such city, whether such franchises or privileges have been granted by said city or by or under the state of Missouri or any other authority."

Those are now sections 6408 and 6409, Rev. St. 1899.

Under that act, and by virtue of section 16, art. 9, of our Constitution above quoted, Kansas City adopted its present charter in 1889, and in that charter the two sections of the enabling act above quoted are literally adopted. The respondent telephone company had already been planted in the city and doing business there several years before the charter was adopted. In section 1, art. 3, of the charter, it is provided that the city shall have power by ordinance "* * * to regulate the prices to be charged by telephone, telegraph, gas and electric light companies, and to compel them and all persons and corporations using, controlling or managing electric wires for any purpose whatever to put and keep their wires under ground and to regulate the manner of doing the same." There was also in the charter what is called the "general welfare" clause, which authorized the city to pass any ordinance that "may be expedient in maintaining the peace, order,...

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49 practice notes
  • State ex rel. Carpenter v. St. Louis, No. 28285.
    • United States
    • United States State Supreme Court of Missouri
    • January 18, 1928
    ...in which the state has a sovereign interest. The charter, if inconsistent, must give way to the statutes. State ex rel. v. Tel. Co., 189 Mo. 83; State ex rel. v. Owsley, 122 Mo. 78; State ex rel. v. Board of Education, 141 Mo. 45; State ex rel. v. Field, 119 Mo. 614; St. Louis v. Meyer, 185......
  • State ex rel. v. City of St. Louis, No. 28373.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...in harmony with the Constitution and laws of the State. [See cases heretofore and herein below cited; also State ex rel. v. Telephone Co., 189 Mo. 83, 88 S.W. 41; State ex rel. v. Police Commissioners, 184 Mo. 139, 71 S.W. 215, 1133. 88 S.W. 27; Ewing v. Hoblitzelle, 85 Mo. 76 (discussing t......
  • State ex rel. Zoolog. Board v. City of St. Louis, No. 28361.
    • United States
    • United States State Supreme Court of Missouri
    • January 18, 1928
    ...v. Mason, 153 Mo. 23. (b) It does not violate Sections 20 to 25 of Article 9 of the Constitution. State ex rel. v. Mo. & Kan. Tel. Co., 189 Mo. 83; State ex rel. v. Board of Education, 141 Mo. 45; St. Louis v. Meyer, 185 Mo. 583; State ex rel. v. Owsley, 122 Mo. 78; Ewing v. Hoblitzelle, 85......
  • State v. Burr
    • United States
    • United States State Supreme Court of Florida
    • March 19, 1920
    ...the general right to control and regulate the right to erect works * * * in the streets of the city. State v. Missouri & K. Telephone Co., 189 Mo. 83, 88 S.W. 41; Jacksonville v. Southern Bell & Tel. Co., 57 Fla. 374, 49 So. 509; Lewisville Natural Gas Co. v. State, 135 Ind. 49, 34 N.E. 702......
  • Request a trial to view additional results
49 cases
  • State ex rel. Carpenter v. St. Louis, No. 28285.
    • United States
    • United States State Supreme Court of Missouri
    • January 18, 1928
    ...in which the state has a sovereign interest. The charter, if inconsistent, must give way to the statutes. State ex rel. v. Tel. Co., 189 Mo. 83; State ex rel. v. Owsley, 122 Mo. 78; State ex rel. v. Board of Education, 141 Mo. 45; State ex rel. v. Field, 119 Mo. 614; St. Louis v. Meyer, 185......
  • State ex rel. v. City of St. Louis, No. 28373.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...in harmony with the Constitution and laws of the State. [See cases heretofore and herein below cited; also State ex rel. v. Telephone Co., 189 Mo. 83, 88 S.W. 41; State ex rel. v. Police Commissioners, 184 Mo. 139, 71 S.W. 215, 1133. 88 S.W. 27; Ewing v. Hoblitzelle, 85 Mo. 76 (discussing t......
  • State ex rel. Zoolog. Board v. City of St. Louis, No. 28361.
    • United States
    • United States State Supreme Court of Missouri
    • January 18, 1928
    ...v. Mason, 153 Mo. 23. (b) It does not violate Sections 20 to 25 of Article 9 of the Constitution. State ex rel. v. Mo. & Kan. Tel. Co., 189 Mo. 83; State ex rel. v. Board of Education, 141 Mo. 45; St. Louis v. Meyer, 185 Mo. 583; State ex rel. v. Owsley, 122 Mo. 78; Ewing v. Hoblitzelle......
  • State v. Burr
    • United States
    • United States State Supreme Court of Florida
    • March 19, 1920
    ...general right to control and regulate the right to erect works * * * in the streets of the city. State v. Missouri & K. Telephone Co., 189 Mo. 83, 88 S.W. 41; Jacksonville v. Southern Bell & Tel. Co., 57 Fla. 374, 49 So. 509; Lewisville Natural Gas Co. v. State, 135 Ind. 49, 34 N.E.......
  • Request a trial to view additional results

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