The State ex rel. Abel v. Gates

• Decision Date: 25 October 1905
• Citation: 89 S.W. 881,190 Mo. 540
• Parties: THE STATE ex rel. ABEL et al. v. GATES, Judge
• Court: Missouri Supreme Court

89 S.W. 881

190 Mo. 540

THE STATE ex rel. ABEL et al. v. GATES, Judge

Supreme Court of Missouri

October 25, 1905

Writ denied.

Gage Ladd & Small, Rozzelle, Vineyard & Thacher, Scarritt Griffith & Jones, Evans & Finley and W. C. Culbertson for relators.

(1) The attempt of respondent to restrain or coerce the action of the common council upon the ordinances in question is a plain usurpation of the legislative functions of government contrary to the provisions of the Constitution. A clear line of demarcation between the several departments of government has been drawn by numerous decisions of our Supreme Court and any attempt of one to impinge upon another has been readily and severely denounced. Albright v. Fisher, 164 Mo. 56; State ex rel. v. Allen, 180 Mo. 31; State ex rel. v. Meier, 143 Mo. 439; Taylor v Carondelet, 22 Mo. 105; St. Louis v. McCoy, 18 Mo. 238; McQuillin on Municipal Ordinances, p. 260, sec. 163. (2) The passage of these ordinances granting natural gas franchises is a legislative act. Albright v. Fisher, 164 Mo. 56; State ex rel. v. Superior Court, 105 Wis. 651; Kittinger v. Traction Co., 160 N.Y. 377; Alpers v. San Francisco, 32 F. 503; Hayes v. Railroad, 111 U.S. 237; Gas Co. v. Des Moines, 44 Iowa 505; Waterworks v. New Orleans, 164 U.S. 481; Wright v. Nagle, 101 U.S. 791; Kadderly v. City of Portland, 74 P. 710; Conery v. Waterworks Co., 41 La. Ann. 901; State ex rel. v. Railroad, 140 Mo. 539; Gas Co. v. Gas Co., 115 U.S. 650. (3) There are no allegations of fraud in the petition that would confer jurisdiction on the circuit court. Nagel v. Railroad, 167 Mo. 89; Barber Asph. Pav. Co. v. Field, 188 Mo. 182. (4) Even if the allegations of fraud in the passage of these natural gas ordinances were sufficient to raise the issue, still they would be immaterial. Fletcher v. Peck, 6 Cranch 128; Ex parte McCardle, 7 Wall. 514; United States v. Old Settlers, 148 U.S. 466; Soon Hing v. Crowley, 113 U.S. 710; United States v. Railroad, 142 U.S. 544; Angle v. Railroad, 151 U.S. 18; State ex rel. v. Hays, 49 Mo. 607; Brown v. Cape Girardeau, 90 Mo. 383; New Orleans v. Warner, 175 U.S. 145; Dreyfus v. Lonergan, 73 Mo.App. 345; Mayor v. Randolph, 4 Watts & S. 514; Kittinger v. Traction Co., 160 N.Y. 387. (5) The rule must be made absolute as to all defendants. Railroad v. Mayor, 39 La. Ann. 127; Albright v. Fisher, 164 Mo. 66; State ex rel. v. Botts, 151 Mo. 362; New Orleans Waterworks Co. v. New Orleans, 164 U.S. 479. (6) Kansas City has full authority under its general power of control over the streets to grant a natural gas franchise and to insert therein any provisions germane to that purpose, including the surrender by the city of its option to buy existing manufactured gas plants, as reserved in the Payne & Snyder ordinances. It is the settled law in this State that in order to grant a franchise for the use of the streets for a public purpose, for which the streets were dedicated, or acquired by condemnation or otherwise, such as the distribution of gas, or laying of a street railway or subway of any kind for public use, it is not necessary that the city charter contain an express provision, authorizing the city to do so, but the provisions of the charter giving the city general control over its streets are sufficient to authorize such grant. State ex rel. v. Corrigan, 85 Mo. 263; State ex rel. v. Murphy (Subway case), 134 Mo. 548; Julia Bldg. Assn. Case, 88 Mo. 258; Schopp v. St. Louis, 117 Mo. 136; St. Louis v. Tel. Co., 96 Mo. 629; Farrenbach v. Turner, 86 Mo. 416; Railroad v. Railroad, 31 Kan. 660. (7) The city has full power to release its option to purchase the property of the Kansas City, Missouri, Gas Co., as reserved in the Payne & Snyder ordinances. This option is not property held in trust.

Isaac B. Kimbrell, Frank Hagerman, Cowherd & Ingraham, and Reed, Yates, Mastin & Howell for respondent.

(1) The circuit court has jurisdiction of the subject-matter in controversy. We maintain: (a) If the members of a city council, in managing the business affairs of a city corruptly conspire with the seekers for a valuable contract, and for the actual payment to them of bribe money, are in the act of making such contract, a court of equity is not without jurisdiction and power to enjoin them from consummating the fraud and delivering to their co-conspirators a valuable property right of the municipality, even if the business transacted takes the form of a resolution or ordinance. (b) If a municipality holds valuable property rights for the benefit of its inhabitants, and the charter nowhere authorizes the members of the council as the agents of the city to sell or dispose of the same, and such councilmen are about to do so for the joint enrichment of themselves and the corrupt grantees, a court of equity is not without jurisdiction to enjoin either the councilmen or the grantees, although the act be accomplished by means of an ordinance or resolution. (c) There being a large number of competitors desiring to furnish natural gas, if these individuals enter into a combination, conspiracy and pool to withdraw their competition in favor of one special applicant, and the members of the council have become partners in the proposed trust, pool and conspiracy and are to be financially benefited thereby, and have by agreement ceased to represent the city and become the corrupt representatives of themselves and their fellow conspirators, a court of equity is not without power to enjoin the members of such pool and conspiracy from consummating its corrupt object. (d) The law has not inoculated the members of a city council with any legal vaccine so that they may practice corruption, barter away the rights of the people, become secret grantees in a contract they are making, flagrantly violate the duty of the agent to the principal as well as the charter which constitutes their power of attorney, and be immune from restraint by a court of equity. A city and the people of the city are as much entitled to the protection of the courts in enforcing proper performance of duty by its business agents as is an individual or a private corporation. (e) Beyond question those who have corruptly conspired with the agents of a city may be restrained from consummating the fraud and taking to themselves the fruit of their iniquitous practices. (2) The council, in passing the McGowan ordinances, was exercising its business, not its legislative functions. A city possesses a dual capacity: one, business or proprietary, the other, governmental or legislative. In providing for water, gas and other public utilities for itself and its inhabitants, it is exercising its business capacity. Because of this and for the further reason that ordinances passed for such purpose do not rise to the dignity of enactments of the Legislature, courts of equity will inquire into the motives which enter into the passage of such ordinances and the making of such contracts. Wolcott v. Lawrence Co., 26 Mo. 272; Crutchfield v. Warrensburg, 30 Mo.App. 402; Woolfolk v. Randolph Co., 83 Mo. 506; Book v. Earl, 87 Mo. 246; State ex rel. v. Clark Co., 41 Mo. 42; Schmidt v. Densmore, 42 Mo. 230; Saline Co. v. Wilson, 61 Mo. 237; Sturgeon v. Hampton, 88 Mo. 203; State ex rel. v. Harris, 96 Mo. 29; State ex rel. v. St. Louis, 145 Mo. 572; Steppen v. Fox, 56 Mo.App. 20; Donahoe v. Kansas City, 136 Mo. 665; Dillon, Mun. Corp. (4 Ed.), sec. 66; Whitfield v. Carrollton, 50 Mo.App. 98; Hannon v. St. Louis County, 62 Mo. 313; Barber Asph. Pav. Co. v. French, 158 Mo. 547; City of Valparaiso v. Gardner, 97 Ind. 1; City of Indianapolis v. Indianapolis, 66 Ind. 316; Dillon on Municipal Corporations (4 Ed.), 473-474; Crowder v. Sullivan, 128 Ind. 486; New Orleans Gas Light Co. v. City of New Orleans, 42 La. Ann. 188; Oliver v. Worcester, 102 Mass. 489; 21 Am. and Eng. Ency. Law, 951; McQuillin on Mun. Ord., sec. 163; Milhan v. Sharp, 15 Barb. 212; Negus v. Brooklyn, 52 How. Pr. 293; Colson v. Portland, Deady 481; People v. Canal Board, 55 N.Y. 390; Green v. Mumford, 5 R.I. 417; Walla Walla City v. Walla Walla Waterworks, 172 U.S. 8; Pike's Peak Co. v. Colorado Springs, 105 F. 11; Electric Co. v. City, 102 F. 663; State ex rel. v. Rodgers, 107 Ala. 456. (3) The officers of a municipality, as to the property of a city, are trustees in the management of such property, and their acts, if ultra vires or fraudulent, may be enjoined even if they be in the form of resolutions or ordinances. Roberts v. Louisville, 92 Ky. 95; Davis v. Mayor, 1 Duer 451; People v. Sturtevant, 5 Seldon 263; People v. Dwyer, 90 N.Y. 402; Trading Stamp Co. v. Memphis, 101 Tenn. 181; Lewis v. Waterworks, 19 Col. 236; Spring Valley Water Works v. Bartlett, 8 Sawyer 555; Milhau v. Sharp, 15 Barb. 194; Sherlock v. Village of Winnetka, 59 Ill. 398; Stevens v. St. Mary's Training School, 144 Ill. 336; Negus v. Brooklyn, 52 How. Pr. 293; Calson v. Portland, Deady 481; People v. Canal Board, 55 N.Y. 390; Railroad v. Smith, 29 Ohio St. 291; Davis v. Society, 75 N.Y. 369; 20 Am. and Eng. Ency. Law, 1231; 21 Ib. 951; Blaschko v. Mayor, 156 N.Y. 437; Electric Co. v. City of Wymore, 60 Neb. 199; McQuillin on Mun. Ord., secs. 163, 178; Spelling on Injunctions, sec. 18 (note), also sec. 712; Beach on Injunctions, secs. 1290, 1299, 1300; Dillon on Mun. Corp. (4 Ed.), secs. 94, 95, 908, 909, 910, 914, 915, 924; Tiedeman on Mun. Corp., sec. 394; State v. Saline County, 51 Mo. 350; Newmeyer v. Railroad, 52 Mo. 81; Matthis v. Cameron, 62 Mo. 504; Milhau v. Sharp, 15 Barb. 212. The transaction with McGowan relinquishes important property rights of the municipality and its inhabitants. Gas Co. v. Covington, 58 S.W. 805; Power v. Harlow, 57 Mich. 111; 19 Am. and Eng. Ency. Law (1 Ed.), pp. 285, 286; Solard v. United States, 4 Pet. 512; Delassus v. United...