State v. Missouri & K. Telephone Co.

• Decision Date: 01 June 1905
• Court: Missouri Supreme Court
• Parties: STATE ex rel. GARNER v. MISSOURI & K. TELEPHONE CO.

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.

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, good government, health and welfare of the city, its trade, commerce and manufactures, or that may be necessary and proper for carrying into effect the provisions of this charter." If the city had power to enact the ordinance fixing the maximum rate for telephone service in question, it is to be found in that clause of the Constitution, those sections of the statute, and those charter provisions above quoted. In so far as the ordinance depends upon the charter, there is no doubt of the authority; the charter expressly authorizes it. But whether the provision of the charter is backed by lawful authority is the serious question in the case.

It is not questioned that the state has power to keep telephone corporations in this state within reasonable bounds in respect of charges for their service, nor can it be questioned that the state may delegate that power to be exercised by a municipal corporation within its limits, but the question is, has the state delegated that authority to this city? Until the adoption of our Constitution in 1875 all cities in the state derived their charter powers from the General Assembly, and therefore whatever was contained in a city charter had the full force of a legislative enactment. But under that Constitution cities of certain descriptions were authorized to frame their own charters. A charter framed under that clause of the Constitution, within the limits therein contemplated, has a force and effect equal to one granted by an act of the Legislature. But it is not every power that may be essayed to be conferred on the city by such a charter that is of the same force and effect as if it were conferred by an act of the General Assembly, because the Constitution does not confer on the city the right to assume all the powers that the state may exercise within the city limits, but only powers incident to its municipality, yet the Legislature may, if it should see fit, confer on the city powers not necessary or incident to the city government. There are governmental powers, the just exercise of which is essential to the happiness and well-being of the people of a particular city, yet which are not of a character essentially appertaining to the city government. Such powers the state may reserve to be exercised by itself, or it may delegate them to the city, but until so delegated they are reserved. The words in the Constitution, "may frame a charter for its own government," mean, may frame a charter for the government of itself as a city, which includes all that is necessary or incident to the government of the...