The State ex rel. St. Louis Underground Service Company v. Murphy

• Decision Date: 02 June 1896
• Parties: The State ex rel. St. Louis Underground Service Company v. Murphy, Street Commissioner
• Court: Missouri Supreme Court

31 S.W. 784

134 Mo. 548

The State ex rel. St. Louis Underground Service Company v. Murphy, Street Commissioner

Supreme Court of Missouri, First Division

June 2, 1896

Peremptory writ denied.

John G Chandler, Robt. L. McLaran, and E. A. Noonan for relator.

(1) The return is false in fact, known to respondent to be false, was not authorized by him, or made under any instructions from him, and is a contempt of this court. State v Railroad, 41 N. J. L. 250; Bac. Abr., Mandamus; Merrill on Mandamus, sec. 282. (2) The traverses in the return are not positive averments of fact, but allegations on information, or vague and undefined denials, which nowise show a right to refuse obedience to the alternative writ. High on Ex. Rem., secs. 460, 464, 469, 479, 481; State v Lean, 9 Miss. 279; Levi v. English, 4 Ark. 65; Springfield v. County Commissioners, 10 Pick. 59; People v. Morton, 12 Abb. Pr. (N. S.) 47; State v. Sumter Co., 22 Fla. 1; People v. American Inst., 2 N. Y. Leg. Obs. 170; King v. Bank Com'rs, 3 Ad. & El. 540. (3) All that part of the return demurred to is but exception in matter of law to the alternative writ, and at most a mere demurrer thereto. High on Ex. Rem., sec. 492; People v. Salmon, 46 Ill. 336; People v. Miner, 46 Ill. 387. (4) Notwithstanding the insufficiency of the pleading, every allegation of fact in the return has been proven false, and every averment of the writ shown to be true. See evidence. (5) The respondent and the city of St. Louis are estopped from denying relator's title and right under ordinances 14798 and 15953 to the remedy herein sought. Railroad v. Marion Co., 36 Mo. 294; Barrett v. Schuyler Co., 44 Mo. 197; Union Depot Co. v. St. Louis, 76 Mo. 293; Green v. Railroad, 82 Mo. 653; Pendleton v. Amy, 13 Wall. (U.S.) 297; Swain v. Seaman, 9 Wall. (U.S.) 254; County, etc., v. Am. Em. Co., 93 U.S. 124; Moore v. Mayor, 73 N.Y. 238; 29 Am. Rep. 135; Green's Brice's Ultra Vires [1 Am. Ed.], 41, 42; Taylor v. Railroad, 4 H. of L. Cas. 628; Railroad v. Hawkes, 5 H. of L. Cas. 381; State ex rel. v. L. G. L. Co., 102 Mo. 472; Broadwell v. Merritt, 87 Mo. 95. (6) Unless the ordinances in question are prohibited by the charter of the city, or the law of the state, they are valid. Charter, art. 3, sec. 26, clause 14; 2 R. S. 1889, p. 2100; Green's Brice's Ultra Vires [1 Am. Ed.], 41, 42; Taylor v. Railroad, 4 H. of L. Cas. 628; Railroad v. Hawkes, 5 H. of L. Cas. 381. (7) The city had full power to enact the ordinances in question. Charter, art. 3, sec. 26, clauses 2, 5, 14; R. S. 1889, pp. 2096, 2097, 2100; Charter, art. 6, secs. 2, 4, 5; R. S. 1889, pp. 2119, 2120; Scheme, sec. 10; R. S. 1889, p. 2078; Const. of Mo. 1875, art. 9, secs. 20, 21; St. Louis v. West. U. T. Co., 149 U.S. 465; State v. Clarke, 54 Mo. 17; Gibbons v. Ogden, 9 Wheat. (U.S.) 1, 197. (8) For the purposes involved in this case, relator is a public corporation; the use of the streets for conduits to be occupied by wire-using companies generally, is a public use, and not a private use, notwithstanding relator may charge and receive tolls or rent for the use of the ducts. Knapp, Stout & Co. Company v. Railroad, 126 Mo. 26; Belcher Sug. R. Co. v. El. Co., 101 Mo. 192; Johnston's Appeal, 17 A. 167; Lewis, Em. Dom., sec. 172. (9) The title of ordinance 14798, "To Provide for the Laying of Electric Wires Underground," shows its public character and purpose. Darst v. Bagley, 110 Mo. 53. (10) It is no objection to the ordinance that it delegates the power to build subways, to relator. McCartney v. Railroad, 112 Ill. 611; Le Clair v. Davenport, 13 Iowa 310; Belcher Sug. Ref. Co. v. El. Co., 101 Mo. 192. (11) By enacting these ordinances the city in no way parted with its control over the streets or the structures to be built therein. Railroad v. Springfield, 85 Mo. 674; Belcher Sug. Ref. Co. v. El. Co., 101 Mo. 192; LeClair v. Davenport, 13 Iowa 310; Munn v. Ill., 94 U.S. 113; King v. Mayor, Doug. 149. (12) The title of ordinance 15953 is sufficient. St. Louis v. Tifel, 42 Mo. 578, 590; St. Louis v. Green, 7 Mo.App. 468; 70 Mo. 562. (13) The corporate powers of the relator, or of its assignors, can not be inquired into in this proceeding. Broadwell v. Merritt, 87 Mo. 95; Shewalter v. Pirner, 55 Mo. 218.

D. D. Fisher and Edward C. Kehr for respondent.

(1) The charter directs that "no bill shall contain more than one subject, which shall be clearly expressed in its title." Sec. 13, art. 3. This is the precise phraseology of section 28, article 4, of the constitution of Missouri, and must receive the same construction. The title does not express or indicate the subject of either ordinance, and they are therefore void. City of Kansas v. Payne, 71 Mo. 159; Bergman v. Railroad, 88 Mo. 678. (2) A municipal corporation possesses, and can exercise only such powers as are conferred by its charter. All acts beyond the scope of the powers granted are void. Under the present charter the city has no power to lay conduits and pipes for the transmission of electricity, and, therefore, no power to grant to others a franchise to use the streets for that purpose. 1 Dillon on Mun. Corp. [4 Ed.], sec. 89; Charter of St. Louis, art. 3, sec. 26; R. S. 1889, pp. 2085-2100; Spaulding v. Peabody, 153 Mass. 129. (3) If the power is claimed to exist, it can only be derived from the power of the city to regulate the use of its streets. But a street can be devoted only to public use, and an ordinance which diverts it to private use, or curtails the right of the city to control it at all times, for public use, is ultra vires and void. Dillon on Mun. Corp., secs. 97 and 656, also, secs. 383, 716; Belcher Sugar R. Co. v. Elevator Co., 82 Mo. 121; Belcher Sugar R. Co. v. Elevator Co., 101 Mo. 192; Glaessner v. Ass'n, 100 Mo. 508; Schopp v. St. Louis, 117 Mo. 131; Glasgow v. St. Louis, 87 Mo. 678; Cummings v. St. Louis, 90 Mo. 259; Matthews v. Alexandria, 68 Mo. 115; Railroad v. St. Louis, 2 Dillon, C. C. R. 70. (4) The franchises granted by the ordinances in question are not for a public use, but for the private use, gain and emolument of the subway company, its successors or assigns, and such franchises so granted are utterly void. Lowell v. Boston, 111 Mass. 454; Opinion of the Justices, 150 Mass. 592; Belcher Sugar R. Co. v. Elevator Co., 82 Mo. 121; Savannah v. Hancock, 91 Mo. 54; City of Kansas v. Baird, 98 Mo. 215; Co. Ct. of St. L. Co. v. Griswold, 58 Mo. 175. (5) The ordinance is an irrevocable grant for fifty years of so much of the public streets, alleys and highways of the city, as the conduits, pipes, and manholes of the subway company may occupy, without the reservation of power on the part of the city, either: First, to repeal the ordinance; or, second, to resume possession of the space occupied by said conduits, pipes, and manholes, or to remove them or change their location; or, third, to secure said conduits, pipes, etc., or the space they occupy, for public use; or, fourth, to fix or regulate the price or charges for their use; or, fifth, to supervise or control such use; or, sixth, to prevent the assignment or transfer of such use to private purposes. Such grant is void, because if valid, it will deprive the city of the control and regulation of its streets, and prevent it from discharging its public duties. Dillon on Mun. Corp., sec. 716; cases above cited under point 3, and, City v. Bell Telephone Co., 96 Mo. 623. (6) The sole purpose for which the conduits are constructed and used by the subway company, is to rent or lease them to others for its private gain and emolument, and upon its own terms. The city is not authorized to rent or lease any portion of its streets for private use, and hence can not confer any such right on the subway company. Glasgow v. City, 87 Mo. 678; Schopp v. City, 117 Mo. 131; Glaessner v. Ass'n, 100 Mo. 508. (7) The ordinance does not prescribe the size, dimensions, kind, or character of the structure which it authorizes the subway company to place and maintain in the streets, alleys, and public highways of the city, nor the plan of such structure, nor the route or routes to be followed, nor does it specify or limit the number of conduits and pipes which the company may lay, nor does it prescribe the dimensions or location of the space in the streets to be occupied by the conduits, pipes, and manholes of the company, but delegates the legislative power, judgment, and discretion of the municipal assembly upon these subjects to the board of public improvements. Hence the ordinance is void. 1 Dillon, Mun. Corp. [4 Ed.], sec. 96; Ruggles v. Collier, 43 Mo. 353; St. Louis v. Clemens, 43 Mo. 395; St. Louis v. Clemens, 52 Mo. 133. (8) Where the act undertaken is ultra vires of the corporation, there can be no estoppel. Power can not be created by estoppel. Bigelow on Estoppel [5 Ed.], pp. 466, 467, also p. 349; Cababe on Estoppel, 125, 126; Scoville v. Thayer, 105 U.S. 143; Winters v. Armstrong, 37 F. 508. The ordinance being executory as to the portion of the term yet to come, it is not only the right, but the duty, of the city to disaffirm and abandon it. Thomas v. Railroad, 101 U.S. 71; Penn. Co. v. Railroad, 118 U.S. 290; Railroad v. Railroad, 130 U.S. 1-37; Mallory v. Oil Works, 86 Tenn. (2 Pickle), 598; St. Louis v. Davidson, 102 Mo. 149; Dairy Co. v. Mooney, 41 Mo.App. 665. (9) The relator has not acquired title to the franchise in question, nor has it legal capacity to assume or perform public duties under it. Central Trans. Co. v. Pullman Car Co., 139 U.S. 24; 1 R. S. 1889, secs. 4915, 4918; McPheeters v. Bridge Co., 28 Mo. 465; Stewart v. Jones, 40 Mo. 140.

Macfarlane J. Brace, C. J., and Robinson, J., concur. Barclay, J., concurs in the result. Brace, C. J., and Barclay, J., concur. Robinson, J., dissents. Brace, C. J., and Barclay, Gantt, Sher...