State v. Murphy

• Decision Date: 18 June 1895
• Citation: 130 Mo. 10,31 S.W. 594
• Parties: STATE ex rel. LACLEDE GAS LIGHT CO. v. MURPHY, Street Commissioner.
• Court: Missouri Supreme Court

31 S.W. 594

130 Mo. 10

STATE ex rel. LACLEDE GAS LIGHT CO. v. MURPHY, Street Commissioner.

Supreme Court of Missouri.

June 18, 1895.

ILLUMINATING COMPANIES — REGULATION BY CITIES — USE OF ELECTRICITY.

1. A grant by the legislature to an illuminating company of the right to use electricity is subject to reasonable regulations by the state as to its use, and, the power to regulate the use of its streets and general police power having thereafter been granted to the city, such right must be exercised subject to the ordinances of the city relating to electric wires in its streets.

2. A grant to an illuminating company of the right to make and distribute gas and any substance that might thereafter be used as a substitute therefor, and to lay down any fixtures required

therefor, having been made when electric lighting was unknown, does not include the right to adopt any method for distributing electricity for lighting, but such right must be exercised according to the regulations of the city, the power to regulate the use of the streets having been delegated to the city before the company adopted electricity for lighting purposes.

In banc. Mandamus on the relation of the Laclede Gas Light Company against Michael J. Murphy, street commissioner of St. Louis. Writ denied.

Henry Hitchcock, G. A. Finkelnburg, and Lionberger & Shepley, for relator. W. C. Marshall, for respondent.

MACFARLANE, J.

On the petition of relator an alternative writ of mandamus was issued by this court, directed to respondent, Murphy, as street commissioner of the city of St. Louis, commanding him to show cause why he should not be required to issue a permit to relator to make an excavation along the east side of Broadway, as near the curb as practicable, and extending from Mound street to Olive street in the city of St. Louis, in so far as such excavation should be necessary for the purpose of laying relator's electric wires underground. By its petition, relator represents that it is a corporation created under an act of the legislature of the state approved March 2, 1857, and a supplementary and amendatory act approved March 3, 1857, and an amendatory act approved March 26, 1868. These acts are set out in full in the petition. The first, approved March 2, 1857, is entitled "An act to incorporate the Laclede Gas Light Company." The first section of the act creates James M. Hughes and seven others a body politic and corporate by the style of "The Laclede Gas Light Company, and by that name they and their successors and assigns are given perpetual succession," etc. The second section fixed the capital stock at $50,000, and authorized it to be increased to $2,000,000. The third section directs that the affairs of the company shall be managed by a board of not less than five directors, etc. The fourth section authorized books of subscription for the capital stock to be opened in St. Louis, and, upon the sum of $50,000 being subscribed, provides that the company may organize under this charter. Section 5 provides that said company, its successors and assigns, should, within the corporate limits of said city, not embraced within the limits as established by act of 1839, "have and enjoy, during the continuance of this act, the sole and exclusive privilege and right of lighting the same, and of making and vending gas, gas lights, gas fixtures, and of any substance or material that may now or hereafter be used as a substitute therefor, and to that end may establish and lay down, in said portion of said corporate limits, all pipes, fixtures or other things properly required, in order to do the same (the same to be done with as much dispatch and as little inconvenience to the public as possible), and shall also have all other powers necessary to execute and carry out the privileges and powers hereby granted to said company." Section 6 authorized the city of St. Louis and the company to make any contracts that they may deem to their mutual advantage in regard to the lighting of any parts of said portion of said corporate limits, or any other thing relating to the business and affairs of said company. It provides that "the said city shall have the right, at the expiration of twenty years from the time of the organization of said company, under this charter, to purchase all the property and effects of the same, paying therefor to the same the value of such property and effects, with twenty per cent. added thereto," and the manner of ascertaining the value by appraisers is provided. Said section has this further provision: "If said city so fail to purchase said property and effects, then this charter shall be and the same is hereby renewed and extended for the further period of thirty years after the expiration thereof." Section 7 punishes any person or body corporate who interferes with the privileges granted to said company or exercises like acts or privileges, by a forfeit and fine to said company of $1,000 for every such offense, and makes each day's continuance of such offense a new offense. Section 8 exempts the company from the operation of sections 6, 7, 13, 14, 15, 18, and 20 of article 1 of "An act concerning corporations," approved November 23, 1855. The sections of the act of November 23, 1855, here referred to, are contained in chapter 34, Rev. St. 1855, pp. 371-374. Section 9 is as follows: "This act shall take effect from its passage, and shall continue in force for thirty years." The act of March 3, 1857, is as follows:

"An act supplementary and amendatory of an act entitled `An act to incorporate the Laclede Gas Light Company.' Be it enacted by the general assembly of the state of Missouri, as follows:

"Section 1. The act to which this act is amendatory is hereby amended so that the words `sole and exclusive,' in the fifth section of the act are stricken out.

"Sec. 2. The city of St. Louis shall not be compelled, in any purchase which it may make under the sixth section of the before recited act, to pay more than the appraised value of the property and effects of the corporation created by said act, without any addition of per centage.

"This act to take effect and be in force from and after its passage."

The act of March 26, 1868, was entitled "An act to amend an act to incorporate the Laclede Gas Light Company," approved March 2, 1857, and is as follows:

"Section 1. The Laclede Gas Light Company shall and may, within the corporate limits of the city of St. Louis, as the same are now or may hereafter be established, exercise, have, hold, and enjoy forever, all the rights, privileges, and franchises granted to it by the fifth section of the act to which this act is amendatory, and may at any time lease, sell or dispose of any portion of said rights, privileges and franchises to individuals, associations or corporations, intending or desiring to exercise the same within any portion of the limits aforesaid.

"Sec. 2. The capital stock of said company may be increased from time to time to such amount as may be necessary to carry on its business.

"Sec. 3. Nothing in this act contained shall be construed as affecting the vested rights of the St. Louis Gas Light Company; and the sixth section of said act to which this act is amendatory, is hereby repealed

"Sec. 4. An act entitled an act supplementary to and amendatory of an act entitled an act to incorporate the Laclede Gas Light Company, approved March 3, 1857, is hereby repealed.

"Sec. 5. This act shall take effect from its passage."

Relator represents further that under the charter rights granted by these general acts it is, and for a long time has been, engaged in the lighting business, both by gas and electricity; that under a contract with the city of St. Louis it is lighting a part of its public streets by electricity; that it is furnishing light by means of gas or electricity to many thousand private consumers in said city, being a large part of the inhabitants thereof; that in order to fulfill its obligations to the city and the public under its charter, it has erected and maintains expensive and costly plants for the manufacture and distribution of gas, as well as for generating and distributing electric currents; that for distributing gas it has from time to time constructed and maintained, and now maintains, a system of pipes laid underground along the streets of the city of St. Louis, as it was at all times authorized to do by its said charter, nor has the city of St. Louis ever objected to its so doing, or disputed relator's right to do so; that for the distribution of electricity relator has hitherto used overhead wires, strung upon poles along the streets and alleys of said city, which poles and electric wires have been and are maintained and used by relator without objection by said city or the authorities thereof for the distribution of electricity, as well to furnish light to private consumers as for the fulfillment by relator of its said contract with said city of St. Louis for the lighting by electricity of certain public streets and alleys thereof; that to effect such distribution it is necessary to transmit through and by means of said wires electric currents of great power, which if and when accidentally diverted are dangerous to human life and property; that in order to avoid the increasing inconvenience and danger to the public necessarily incident to that method of disturbing electric currents, and in order to provide more effective and proper service, relator has made arrangements to lay its wires underground along and under the streets of said city, according to approved and practicable plans, and is now ready to do so with as much dispatch and as little inconvenience to the public as possible. Relator states further that respondent was street commissioner of said city, and under its charter and ordinances had supervision and...