State v. West Missouri Power Co.

• Decision Date: 12 March 1926
• Docket Number: No. 25128.,25128.
• Citation: 281 S.W. 709
• Parties: STATE ex inf. CHANEY, Pros. Atty., v. WEST M1SSOURI POWER CO. et al.
• Court: Missouri Supreme Court

281 S.W. 709

STATE ex inf. CHANEY, Pros. Atty., v. WEST M1SSOURI POWER CO. et al.

No. 25128.

Supreme Court of Missouri, Division No. 1.

March 12, 1926.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Proceeding in quo warranto by the State, ex informatione W. L. Chaney, Prosecuting Attorney for Johnson County, against the West Missouri Power Company and others. From a judgment of ouster, respondents appeal. Reversed.

W. E. Suddath, of Warrensburg, H. O. Maxey and De Armond & Maxey, all of Butler, and Busby, Sparrow & Patterson, of Kansas City, for appellants.

H. J. Salisbury, of Brownington, Walter L. Chaney, M. D. Aber, and S. J. Caudle, all of Warrensburg, and Charles E. Morrow, of St. Louis, for respondent.

RAGLAND, P. J.

This is a proceeding in quo warranto. The respondent West Missouri Power Company is a public service corporation, engaged, among other things, in maintaining and operating an electric power and lighting system in the city of Warrensburg. The information challenges its right to occupy the streets and alleys of that city with its poles, transmission lines, and other structures and appliances incident to and necessary for the conveyance and proper distribution of electric current which it furnishes the public. The cause was instituted in Johnson county, but was tried in the circuit court of Jackson county, to which it was sent on change of venue. The trial resulted in a judgment of ouster. From that judgment this appeal is prosecuted by respondent, who, unless designated by its proper corporate name, will hereinafter be referred to as appellant.

There were a number of other corporations named as respondents in the information, but, as their interests, if any, are merely incidental or subordinate to that claimed by West Missouri Power Company, no further notice will be taken of them.

As appellant has fairly set forth, in respect to completeness and accuracy, the facts which its evidence on the trial tended to show, we adopt its statement with some slight additions:

"On September 20, 1889, the city of Warrensburg, then and now a city of the third class, by ordinance enacted by its council, granted a franchise to Walter K. Freeman, his heirs or assigns, authorizing the erection, maintenance, and operation of an electric plant and system in said city, and the placing of poles and wires in the streets and alleys thereof."

That ordinance (deleting portions not pertinent to this controversy) was as follows:

"Section 1. That Walter K. Freeman, his heirs or assigns, be and he is hereby authorized to erect, maintain and operate electric lights and electric motors within the city of Warrensburg, as also the right to construct and maintain necessary buildings, steam power plant, and such other fixtures as may be necessary for operating electric lights and power, and for the purpose of operating and maintaining the aforesaid, the grantee, his heirs and assigns, may enter upon all streets, avenues, alleys, bridges, or public grounds belonging to or under the control of the city for the purpose of setting poles and stretching wires for conducting the electricity, provided, however, the location of such poles is approved by the street and alley committee of the council.

"Sec. 2. The rights and privileges herein granted shall be for the purpose of operating electric lights and electric motors only, and for that purpose it shall be continuous and perpetual. * * *

"Sec. 3. The grantee, his heirs or assigns, in accepting the rights and privileges herein granted, agrees to erect and maintain such are light apparatus as may be necessary for the purpose of lighting the streets of Warrensburg and to extend its line to such points along the streets or alleys of the city as may be necessary for the operation of arc lamps of standard 2,000 candle power, for the use of which the city agrees to pay the grantee his heirs or assigns, one hundred dollars ($100.00) per annum for each lamp ordered by the council and operated on the Philadelphia schedule until twelve o'clock at night, and one hundred and twenty-five dollars ($125.00) 00) per annum for each lamp operated on the Philadelphia schedule all night.

"Sec. 4. The grantee agrees to commence immediately and within thirty days after the passage of this ordinance, the work of erecting poles, stretching wires and building suitable buildings for the steam engine and boiler plant, as also to provide for means to operate within ninety days 12 standard lamps of 2,000 candle power each, to operate on the Philadelphia schedule until midnight for which the city agrees to pay the sum of twelve hundred dollars per annum payable monthly and the grantee in consideration of the city granting him, his heirs or assigns, the exclusive right to operate electric light and electric motors within the city which they hereby do for one year, and for one year from the date at which the last 2,000 candle power lamp is ordered by the city, agrees to furnish to and maintain for the city's use three (3) arc lamps of standard 2,000 candle power, free of cost, said lights to be operated on the Philadelphia schedule under the same rules and regulations as control the use and consideration for other lights operated for lighting the streets of the city. * * *"

"Walter K. Freeman and those associated with him thereupon erected an electric plant and system in the city of Warrensburg, and same was completed some time prior to April 1, 1890. On such date, the plant and all rights to operate same in the city of Warrensburg under said ordinance franchise were sold and conveyed to Warrensburg Electric Company. The Warrensburg Electric Company operated the plant and system until November 4, 1892, when it sold and conveyed all its property, rights, and franchises to Magnolia Light, Heat & Power Company. After operating the plant until June 19, 1907, the last-named company sold and conveyed its property and franchise to the Warrensburg Light & Power Company. The Warrensburg Light & Power Company operated the property until September 3, 1912, when it conveyed it with the franchise to Milan R. Bump, who, with his wife, conveyed in November, 1912, to Warrensburg Electric Light, Heat & Power Company.

"On May 30, 1922, Warrensburg Electric Light, Heat & Power Company contracted to sell and convey the property and franchise to Green Light & Power Company, its successors and assigns. On March 6, 1923, in accordance with the terms of said contract, and after obtaining authority from the Public Service Commission of the state of Missouri, by order of said commission duly entered of record, the Warrensburg Electric Light, Heat & Power Company conveyed all its property and the franchise above mentioned to West Missouri Power Company, assignee of the Green Light & Power Company.

"The electric plant and system so erected, owned, and conveyed is the only electric system ever operated in the city of Warrensburg as a public utility, and it has supplied the city and citizens with electric current continuously from the date of its erection until the present time. The building of the plant, adding new machinery thereto, and extending the lines and facilities of the system gradually increased the investment in the property. A certified audit of the books and accounts of the Warrensburg Electric Light, Heat & Power Company offered in evidence shows that the estimated value of the Warrensburg electric property on June 30, 1916, was $195,404.56. Subsequent additions and betterments from that date to June 30, 1922, were shown to have actually cost $122,544.03.

"Numerous ordinances were shown to have been enacted by the council of the city of Warrensburg, providing for street-lighting contracts with the successive owners of the electric property. Some of these ordinances gave authority to the mayor to contract with the electric company for street lighting, while some set forth in the body of the enactment the exact terms and provisions of the contract. Resolutions of the council were passed, requiring the electric company to install, maintain, and supply electric current for numerous additional street lights.

"On the 18th day of July, 1917, the council enacted an ordinance setting forth a contract with the Warrensburg Electric Light, Heat .& Power Company, providing for street lighting service to be rendered by the company to the city for a period of five years from August 1, 1917.

"This contract provided that the company should change the arc light street lighting system to an incandescent street lighting system, and shall install 140 60 candle power incandescent street lights and 30 Whiteway fixtures at such locations as should thereafter be designated by the representatives of the city.

"The ordinances further contained these conditions:

"`Fourth. The company agrees to furnish without charge to the city electric current for incandescent lamps for the city hall, calaboose and fire station to the extent of seventy-five (75) kilowatt hours in each month during the term of this agreement for franchise charge. * * *'

"`Eighth. The company agrees that immediately after the installation of incandescent lighting has been made, it will remove from the streets of Warrensburg the present arc lamps and fixtures and will also remove the poles in the Whiteway zone, which are now located on Holden and Pine streets, the company reserving, however, all of its rights as to using Holden and Pine streets granted to the company under its franchise from the city of Warrensburg.'

"The testimony showed that the company has fully complied with the requirements of this ordinance contract, has changed the street lighting system from arc to incandescent, has installed the Whiteway fixtures, and removed its poles from the streets mentioned, all at a cost of approximately $12,000.

"The purchase price paid by the West Missouri Power Company for the physical property and franchise of the Warrensburg Electric...