The State ex inf. Chaney v. West Missouri Power Company

• Decision Date: 12 March 1926
• Citation: 281 S.W. 709,313 Mo. 283
• Parties: THE STATE ex inf. W. L. CHANEY, Prosecuting Attorney of Johnson County, v. WEST MISSOURI POWER COMPANY et al., Appellants
• Court: Missouri Supreme Court

281 S.W. 709

313 Mo. 283

THE STATE ex inf. W. L. CHANEY, Prosecuting Attorney of Johnson County, v. WEST MISSOURI POWER COMPANY et al., Appellants

Supreme Court of Missouri

March 12, 1926

Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.

Reversed.

W E. Suddath, DeArmond & Maxey and Busby, Sparrow & Patterson for appellants.

(1) A grant of a franchise to a person or corporation, "its successors or assigns," is assignable. Owensboro v Tel. Co., 230 U.S. 58; Louisville v. Tel. Co., 224 U.S. 649; Old Colony Trust Co. v. Wichita, 123 F. 762; 26 C. J. 1038; Ft. Smith L. & Tr. Co. v. Kelley, 94 Ark. 461; Commercial E. & L. Co. v. Tacoma, 17 Wash. 661; Wheeling v. Ry Co., 82 W.Va. 308; McCue v. Rommel, 148 Cal. 539; Leonard v. Baylen St. Wharf Co., 59 Fla. 547; San Lino Water Co. v. Estrada, 117 Cal. 168; State v. Western Canal Co., 40 Kan. 96; Detroit v. Mutual Gaslight Co., 43 Mich. 594; Joy v. Jackson Road Co., 11 Mich. 155; Threadgill v. Pumphrey, 87 Tex. 573, 9 Tex. Civ. App. 184; Michigan Tel. Co. v. St. Joseph, 121 Mich. 502, 47 L. R. A. 87; State v. Topeka Water Co., 61 Kan. 547; Kavanaugh v. St. Louis, 220 Mo. 496; Hovelman v. Railroad, 79 Mo. 643; East Tennessee Tel. Co. v. Frankfort, 141 Ky. 588. (2) In September, 1889, the statutes authorized the grant by a third-class city of an electric franchise without ratification by the voters and without limitation as to the term thereof. Lawrence v. Hennessy, 167 Mo. 671; Laws 1887, p. 74, sec. 52, now Sec. 8302, R. S. 1919. (3) Section 15 of Article 2 of the Missouri Constitution does not prohibit the granting of a non-exclusive franchise without limit as to term. Plattsmouth v. Nebraska Tel. Co., 80 Nebr. 460; Omaha Water Co. v. Omaha, 147 F. 1, 12 L. R. A. (N. S.) 736; Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 43 L.Ed. 341; Old Colony Trust Co. v. Omaha, 230 U.S. 100; Louisville v. Tel. Co., 224 U.S. 649; Collins v. Campbell, 110 Mo. 557; River Rendering Co. v. Behr, 7 Mo.App. 345; State ex rel. v. Schweickhart, 109 Mo. 496.

H. J. Salbury, Walter L. Chaney, M. D. Aber, S. J. Caudle and Charles E. Morrow for respondent.

(1) The grant in the franchise in question by its terms is continuous, perpetual, irrevocable and exclusive and is void. (a) Because a perpetual grant is void at common law unless expressly authorized by the State. Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa 234; City of Joseph v. Joseph Waterworks Co., 171 U.S. 48; Logansport Ry. Co. v. City of Logansport, 114 F. 688; Boise City Waterworks Co. v. Boise City, 123 F. 232; Boise City v. Water Co., 186 F. 705; State v. Railroad Co., 140 N.W. 437; Newson v. Rainer, 185 P. 296; Horkin v. City of Moultrie, 136 Ga. 561; Omaha Electric Light Co. v. Omaha, 179 F. 455; State v. Des Moines Ry. Co., 140 N.W. 443; 4 McQuillan on Municipal Corp., sec. 1624; Birmingham Co. v. Birmingham St. Ry. Co., 79 Ala. 456; Pettis v. Johnson, 56 Ind. 139; Detroit v. Detroit Railroad Co., 56 F. 867; Milhau v. Sharp, 17 Barb. (N. Y.) 435; 28 Cyc. 874-875; 26 C. J. 1034, sec. 76. (b) It is void because by its terms it is an exclusive grant and violates Section 15, Article II, of the Constitution of Missouri which provides that no law making any irrevocable grant of special privilege or immunities shall be passed. Carroll v. Campbell, 110 Mo. 557, 108 Mo. 550; Birmingham Ry. Co. v. Birmingham St. Ry. Co., 79 Ala. 465. (c) The above provision of the Constitution applies as well to ordinances passed by a city as to laws enacted by the Legislature. St. Louis v. Const. Co., 244 Mo. 479. (d) It is void because by its terms it is perpetual and if perpetual necessarily irrevocable. State ex rel. v. Road Co., 207 Mo. 54. A franchise when granted and accepted becomes irrevocable and cannot be revoked, amended or diminished. Westport v. Mulholland, 159 Mo. 86; Boise Artesian Water Co. v. Boise City, 230 U.S. 84; Shreveport Traction Co. v. Shreveport, 122 La. Law, 1; Michigan Tel. Co. v. St. Joseph, 121 Mich. 502. (2) Even if the granting of a perpetual or exclusive franchise is not prohibited by the Constitution, the city had no power to grant a perpetual or an exclusive franchise unless expressly authorized by the Legislature. The council had no authority to invade the legislative power of their successors by conferring a perpetual or exclusive privilege on anyone. Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa 234; City of Joseph v. Joseph Waterworks Co., 171 U.S. 48; Logansport Ry. Co. v. Logansport, 114 F. 688; Boise City Water Works Co. v. Boise City, 123 F. 232; Boise City Water Co. v. Water Co., 187 F. 705; State v. Railroad, 140 N.W. 437; Newson v. Rainer, 185 P. 296; Horkin v. City of Moultrie, 136 Ga. 561; Omaha Elec. Co. v. Omaha 17 F. 455. (3) The Legislature had not only not authorized the city to make a perpetual grant, but to the contrary had limited all such grants to a length of time not exceeding twenty years. R. S. 1889, sec. 1519; Laws 1887, p. 74, sec. 52; R. S. 1919, secs. 10172-10173. (4) The statute did not expressly confer power upon the city to grant a perpetual franchise. If it had such power it must be, by necessary and inevitable implication, and any doubt must be resolved against such an implication. State v. Butler, 178 Mo. 272; Carroll v. Campbell, 108 Mo. 550; Citizens St. Ry. v. Detroit Ry., 171 U.S. 48; Water Co. v. Hutchinson, 207 U.S. 385. (5) The laws in force at the time of the passage of the ordinance in question limited the grant to a term not exceeding twenty years. It grants by plain language a perpetual franchise and privilege and openly and purposely defies the constitutional provision prohibiting the passage of any law making an irrevocable grant of special privileges and also the statutes then in force limiting the term of such a grant to a period not exceeding twenty years and is void for that reason. Manhattan Trust Co. v. City of Dayton, 59 F. 327; Boise Water Co. v. Boise City, 230 U.S. 92. (6) The consent to use the city's public ways by an individual or corporation for the purpose of constructing and operating an electric light plant, could be obtained only from the council and mayor on September 20, 1889, the date of the alleged ordinance; R. S. 1889, sec. 1519; and by a corporation not later than November 1, 1889. R. S. 1889, sec. 2794. On and after November 1, 1889, a grant to a corporation was required to be submitted to and approved by a vote of the people. R. S. 1889, sec. 2794. After June 21, 1893, a grant either to persons or corporations had also to be submitted to a vote of the people. Laws 1893, p. 85. At all the times of the acts of the council and administrative officers of the city, relied upon as a waiver or as an estoppel, it was necessary to such a grant or renewal, that it be passed by the council and submitted to a vote of the people in the particular mode prescribed by statute, and the administrative officers of the city could not waive the necessity of procuring the same in the prescribed manner. R. S. 1889, secs. 1519, 2794; Laws 1893, p. 85, sec. 95; State ex inf. v. Light & Power Co., 246 Mo. 653; Realty & Power Co. v. St. Louis, 282 Mo. 180. The city council had no authority to make the periodical contracts for lighting because there was in existence at the time no franchise. The statute only authorizes such contracts where there was an existing franchise for such purposes. R. S. 1919, sec. 8303. (7) This action is brought by the State itself through its proper officers to enforce the rights of the State. It is not brought by the city or at its relation, and the State is not estopped by the acts of the city officers. State ex inf. v. Light & Power Co., 246 Mo. 653. (8) The franchise if valid is not assignable without the consent of the State. Kavanaugh v. St. Louis, 230 Mo. 496; State ex rel. v. Ry. Co., 140 Mo. 539; 12 R. C. L. sec. 43, p. 217; Oregon Ry. Co. v. Oregonian Ry. Co., 130 U.S. 1; New Albany Water-works v. Louisville Banking Co., 122 F. 776; 26 C. J. 1037, sec. 87. Sec. 1519, R. S. 1889, under which appellants claim the grant was made, provides "that the city may make contracts with and authorize any person, company or association to erect gas works or electric light works in said city." This language must be strictly construed against the grantee and in favor of the public. It did not authorize the city to make a grant to Freeman and his heirs and assigns. The statute restricts the grant to any person, company or association. Oregon Ry. Co. v. Oregonian Ry. Co., 130 U.S. 1; New Albany Waterworks v. Louisville Banking Co., 122 F. 776.

OPINION

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 funishes 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...