State v. West End Light & Power Co.

• Decision Date: 10 December 1912
• Parties: STATE, on Inf. of JONES, Circuit Attorney, v. WEST END LIGHT & POWER CO.
• Court: Missouri Supreme Court

152 S.W. 76

246 Mo. 653

STATE, on Inf. of JONES, Circuit Attorney, v. WEST END LIGHT & POWER CO.

Supreme Court of Missouri.

December 10, 1912.

Rehearing Denied December 21, 1912.

1. APPEAL AND ERROR (§ 194) — THEORY OF PARTIES BELOW.

As a party cannot change his theory on appeal, he cannot there first object that the reply in a proceeding in the nature of quo warranto was a departure from the information.

2. QUO WARRANTO (§ 7) — SCOPE OF REMEDY.

A municipal corporation in granting a franchise to use its streets acts as agent of the state, and, in case of a forfeiture or usurpation of such franchise, the state may proceed by quo warranto to determine the want of authority in the party exercising the franchise.

3. ELECTRICITY (§ 4) — FRANCHISES — NONUSER — FORFEITURE.

Twenty years' nonuser of a franchise to use the streets of a municipality in any way necessary to carry on the business of furnishing electric light forfeits the franchise which may be declared void upon quo warranto.

4. MUNICIPAL CORPORATIONS (§ 690) — STREETS — FRANCHISE TO USE — FORFEITURE — WAIVER.

Under Rev. St. 1909, § 3367, providing for the creation of corporations authorized to use municipal streets, and St. Louis Charter, art. 3, § 26, providing that the mayor and assembly may, by ordinance, provide for grading, cleaning, and improving the streets, regulations for the use of such streets can be made only by an ordinance duly enacted by the legislative assembly of the city, which includes the assembly and council, and hence a corporation whose franchise to use the city streets had been forfeited by nonuser cannot defeat ouster on the claim of waiver by the mayor and the council or other executive officers, for, as the legislative assembly alone could grant a franchise, it alone can waive a forfeiture.

5. MUNICIPAL CORPORATIONS (§ 690) — FRANCHISE TO USE STREET — FORFEITURE — ESTOPPEL.

Estoppel of the state to claim a forfeiture of a franchise to use streets cannot be bottomed on the acts of administrative officials of the municipality who had no authority to grant such franchise.

6. ELECTRICITY (§ 4) — FRANCHISES — AMENDMENT — RESERVATION OF POWER.

Where a light company obtained a franchise to use the city streets under St. Louis Ordinance No. 12723, section 13 of which reserved to the city the power to alter, amend, and repeal it, the reservation became part of the franchise contract, and leaves the city free to amend or repeal its terms or withdraw it altogether in its discretion.

7. ELECTRICITY (§ 4) — FRANCHISES — COMPLIANCE WITH CHARTER.

A compliance with St. Louis Ordinance No. 12723, enacted in 1884, providing for the use of the city streets by persons desiring to furnish electric light or power, and binding them to pay a gross income tax, makes the rendition of service and the payment of the tax an implied condition of the grant, and hence persons who did not previous to the enactment of Ordinance No. 16894, providing that no one shall be entitled to use the streets for the erection of electric light wires except those who have complied with the former ordinance, furnish light and power, cannot subsequently use the city streets under a franchise obtained under the first ordinance.

In Banc. Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Information by the State of Missouri, on the relation of Seebert G. Jones, Circuit Attorney, in the nature of quo warranto, against the West End Light & Power Company. From a judgment for respondent, plaintiff appeals. Reversed and remanded, with directions that judgment of ouster be entered.

Seebert G. Jones and Jones, Jones, Hocker & Davis, Jeptha D. Howe, and Forrest G. Ferriss, all of St. Louis, Elliott W. Major, of Jefferson City (Lon O. Hocker and B. Schnurmacher, both of St. Lopis, of counsel), for appellant. Watts, Williams & Dines and Lyon & Swarts, all of St. Louis, for respondent.

KENNISH, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis in favor of respondent in a proceeding by information in the nature of quo warranto. The information was filed in said court at the June term, 1909, by the circuit attorney of said city against the respondent corporation, the West End Light & Power Company. The purpose of the suit was to oust the respondent from exercising the franchise of using the streets of said city for the erection of poles and stringing of wires thereon, to be used in conducting the business of supplying electricity to the public for lighting and other purposes. An amended information was afterwards filed, to which the respondent in due time filed an answer and return. Thereupon plaintiff filed a reply and the respondent filed a supplemental answer and return, and, upon the issues thus framed, a trial was had and judgment entered as above. Plaintiff appealed to this court.

The pleadings cover 47 pages of the printed record, and are of too great length to be set out in this statement. In the view we take of the case, the material facts, as gathered from the pleadings are, briefly, as follows:

The information charges the respondent with claiming and exercising the franchise of using the streets and public places of the city of St. Louis for the erection of poles and stringing of wires thereon, for the purpose of supplying the public with electricity, without first having obtained authority by ordinance from the city so to do, and prays the court to cause the defendant to answer and state by what warrant of authority it claims to have, use and enjoy such franchise; that a judgment of ouster be rendered against respondent, ousting it from the exercise of such franchise. In its return to the information the respondent alleges that the city of St. Louis on the 15th day of March, 1884, being authorized by its charter, duly enacted Ordinance No. 12723. That ordinance, which is filed as an exhibit and made a part of the return, is in part as follows:

"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.

* * * * * *

"Section 1. That no wires, tubes or cables conveying electricity for the production of light or power shall be placed along or across any of the streets, alleys or public places in the city of St. Louis, except as hereinafter provided.

"Sec. 2. That all such wires, tubes or cables, along or across any of the streets, alleys or public places of the city of St. Louis, shall be placed at such distances above or below the surface of the ground and secured in such manner as shall be prescribed by the board of public improvements.

"Sec. 3. That any person or persons, corporation or association desiring to place along or across any of the streets, alleys or public places of the city of St. Louis such wires, tubes or cables, shall file in the office of the board of public improvements an application therefor, stating in detail the streets, alleys or public places which said wires, tubes or cables are to occupy, and the manner in which said wires, tubes or cables are to be secured or supported and insulated, together with a plat showing the route of such wires, tubes or cables.

"Sec. 4. The board of public improvements is hereby authorized, upon the filing of the application and plat required by the preceding section, to grant a permit for such named, of the streets, alleys and public places therein named, with such restrictions, regulations and qualifications as may be prescribed by said board.

* * * * * *

"Sec. 10. 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 the statement with the comptroller, pay into the city treasury 2½ per cent. on the amount of such gross receipts up to the year 1890, and 5 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 damage 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.

* * * * * *

"Sec. 13. The city reserves the right to alter, amend or repeal this ordinance at any time."

It is further alleged: That on the 14th day of February, 1885, while the said ordinance was in full force and effect, Browning, King & Co., a...