The City of Wilson v. Weber

• Decision Date: 07 July 1917
• Docket Number: 21,340
• Citation: 101 Kan. 425,166 P. 512
• Parties: THE CITY OF WILSON, Appellee, v. NICHOLAS WEBER and JOHN WEBER, Partners, doing business as WILSON ELECTRIC LIGHT COMPANY, Appellants
• Court: Kansas Supreme Court

166 P. 512

101 Kan. 425

THE CITY OF WILSON, Appellee, v. NICHOLAS WEBER and JOHN WEBER, Partners, doing business as WILSON ELECTRIC LIGHT COMPANY, Appellants

No. 21,340

Supreme Court of Kansas

July 7, 1917

Decided July, 1917.

Appeal from Ellsworth district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITIES--Second and Third Class--Control of Streets, Alleys and Public Grounds. The act creating the public utilities commission and giving it power to regulate and control public utilities and common carriers did not repeal the statute which expressly gives the mayor and council of cities of the second and third classes the control of the streets, alleys and public grounds of such cities.

2. ELECTRIC LIGHT PLANT--Franchise Expired--City May Remove Poles and Wires--No Consent of Utilities Commission Required. Where a franchise previously granted by a city to a public utility for the use of the streets, alleys and public grounds on which to erect an electric lighting plant for the distribution of electric light and power has expired and the city is taking steps to cause the removal of the poles and wires which had been placed there by the public utility, the consent of the public utilities commission for such removal or for the discontinuance of the service which is no longer authorized under the franchise is not required by law.

Ira E Lloyd, N. F. Nourse, both of Ellsworth, and E. H. Hogueland, of Topeka, for the appellants.

C. W. Burch, B. I. Litowich, and La Rue Royce, all of Salina, for the appellee.

OPINION

JOHNSTON, C. J.:

The city of Wilson brought this action to enjoin the Wilson Electric Light Company, a partnership composed of Nicholas Weber and John Weber, from the alleged illegal occupation and use of the streets of the city for the distribution of electric light and power. The injunction was granted and the defendants appeal.

In 1901 the city granted a franchise to the defendants, authorizing them to use the streets, alleys and public grounds of the city upon which to erect and place poles and wires for Wilson to the neighboring city of Dorrance and are also furnish the same to the people of the city, for a period of fifteen years. A plant was at once built in the city and in 1914 the defendants constructed a transmission line from the city of Wilson to the neighboring city or Dorrance and are also furnishing the inhabitants of that city with light and power. The franchise granted by the city of Wilson expired on December 27, 1916, and the city, having built a municipal light and power plant, did not renew nor extend the franchise of the defendants. No right to continue the occupancy of the streets and alleys of Wilson by the defendants having been granted, and they having refused to remove their poles, wires and fixtures from the streets and alleys, the present action was brought.

It is contended that their plant was built under a legal franchise and as they are operating in two cities, their system is under the exclusive jurisdiction of the public utilities commission. They claim that no change can be made, in the service or by way of abandonment of service, that has not been authorized by the commission. Wilson is a city of the third class. The mayor and council of cities of that class are authorized to grant franchises for electric lighting systems for a period of not more than twenty years with restrictions which will protect public and private property. (Gen. Stat. 1915, § 862.) The control of the streets, alleys and public grounds of a city of that class is expressly vested in the mayor and council of the city. (Gen. Stat. 1915, § 869.) Other sections provide that before a person, firm or corporation may enter upon the streets of a city to set up a lighting plant or other utility, such person, firm or corporation must first procure the passing of an ordinance by the city giving the right which shall define fully the terms upon which the right is granted, and if such person, firm or corporation shall enter upon the streets, alleys or public grounds of the city without having obtained such right from the mayor and council such person, firm or corporation shall be guilty of a misdemeanor and be subject to a fine. (Gen. Stat. 1915, §§ 870, 871.) Defendants contend that these provisions have been superseded and impliedly repealed by the provisions of the public utilities act; that the two acts are irreconcilable; and that the utilities act, being the later one, must prevail. It provides in effect that the commission shall have full power to supervise and control all public utilities within its jurisdiction, and authority is given the commission to require utilities to furnish proper service and facilities to the public and to establish just and reasonable rates. It further provides that if any rates, rules or practices are found by the commission to be unlawful, unjust, unreasonable or inadequate, other rates, practices and service may be substituted by the commission. (Gen. Stat. 1915, §§ 8337-8347.) Section 20 of the act provides in effect that...