The State ex rel. McAllister v. Cupples Station Light, Heat & Power Company

• Decision Date: 19 June 1920
• Citation: 223 S.W. 75,283 Mo. 115
• Parties: THE STATE ex rel. FRANK W. McALLISTER, Attorney-General, v. CUPPLES STATION LIGHT, HEAT & POWER COMPANY
• Court: Missouri Supreme Court

223 S.W. 75

283 Mo. 115

THE STATE ex rel. FRANK W. McALLISTER, Attorney-General, v. CUPPLES STATION LIGHT, HEAT & POWER COMPANY

Supreme Court of Missouri

June 19, 1920

Writ Denied.

Frank W. McAllister, Attorney-General, S. P. Howell, Assistant Attorney-General, and Leahy & Saunders, of counsel, for relator.

(1) The streets of St. Louis are dedicated to public uses only, and they are held by that municipality in trust for such uses. State ex rel. Underground Service Co. v. Murphy, 134 Mo. 564; Glasgow v. St. Louis, 87 Mo. 682. (2) The laws under which respondent is and was incorporated conditioned its right to lay conductors for conveying electricity through the streets, lanes, alleys and squares of any city (including St. Louis) upon the consent of such city. State ex inf. v. Light & Power Co., 246 Mo. 666; R. S. 1909 ch. 33, art. 7, sec. 3367; Joyce on Franchises, sec. 6; People ex rel. v. Tax Commrs., 174 N.Y. 435, 199 U.S. 38; State v. Topeka Water Co., 61 Kan. 558. (3) This consent by the city can be expressed only by ordinance duly exacted by its legislative body. State ex inf. Jones v. Light & Power Co., 246 Mo. 667. (4) Franchise privileges to be exercised by respondent upon the streets of St. Louis will not be presumed to be granted as against public rights unless conferred in plain and explicit terms nothing passes by implication. And the Keyes ordinance confers no privileges outside of the underground district nor within said territory, not applied for in the manner and within the time, therein specified clearly, in connection with the previously enacted ordinances of said city. State ex rel. Laclede Gas. Co. v. Murphy, 130 Mo 24; Blair v. Chicago, 201 U.S. 463; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L.Ed. 824; Joyce on Franchises (1 Ed.), sec. 254, p. 391; 4 Thomp. Corp (1 Ed.) sec. 5345; 7 Thomp. Corp. (1 Ed.) sec. 8298. (5) By reason of respondent's failure to render service to the public from the time of its pretended acceptance of the Keyes Ordinance in 1896, until about the year 1913, no grant of franchise privileges which said ordinance might have operated to confer ever became effective; any rights which respondent might have acquired thereunder were voluntarily disused and abandoned, entitling the public to an order of ouster as for disaffirmance, non-user and usurpation. State ex inf. Jones v. Light & Dev. Co., 246 Mo. 640; State ex inf. Jones v. Light & Power Co., 246 Mo. 673; People v. Bank of Hudson, 6 Cow. (N.Y.) 219; State v. Seneca Bank, 5 Ohio St. 175; People v. Northern R. Co., 53 Barb. (N.Y.) 121. (6) Official action of state or municipal officers who had no authority in the matter of granting franchises, cannot be invoked as against the public's right of ouster. State ex inf. Jones v. L & P. Co., 246 Mo. 645, 667; State ex rel. Kansas City v. Ry. Co., 140 Mo. 558; People v. Phoenix Bank, 24 Wend. 433; Wright v. City of Doniphan, 169 Mo. 613; Elliott on Roads and Streets (2 Ed.), sec. 884; McCarter v. Light & Power Co., 72 N.J.Eq. 767. (7) And the principles of estoppel do not apply as against the public to reclaim a license or other special privileges, as distinguished from the franchise to exist as a corporation. State ex rel. v. Lincoln Trust Co., 144 Mo. 576; People v. Pullman Car Co., 175 Ill. 160; 4 Thomp. Corp. (1 Ed.) sec. 5338; Joyce on Franchises, sec. 6; People ex rel. v. Tax Commrs., 174 N.Y. 435, 199 U.S. 1, 150 L.Ed. 75. (8) The city had no authority to grant its streets for a private use, and private gain alone. St. Louis Ry. Co. v. Southern Ry. Co., 105 Mo. 580; State ex rel. Underground Service Co. v. Murphy, 134 Mo. 563; State ex rel. Kansas City v. East Fifth Street Ry., 140 Mo. 556. (9) The condition of the alleged grant being rendition of service to the general public, a refusal to render such service from 1901 to 1907, and only an incidental and slight service to the general public during all other times from 1896 to 1913, was not a substantial compliance with the franchise claimed to have been conferred: and unless there was substantial compliance respondent failed to carry out and use the alleged franchise in a matter of the essence of the contract. Beach on Private Corporations (2 Ed.), sec. 1294; Morawetz on Private Corporations (2 Ed.), sec. 1018; State ex rel. v. Wood, 13 Mo.App. 143, 84 Mo. 381; Harris v. Railroad Co., 51 Miss. 602; State ex rel. Kansas City v. Railway Co., 140 Mo. 554.

I. R. Kelso and C. W. Bates for respondent.

(1) Respondent predicates its rights upon Ordinance No. 12723 and its amendments, including Ordinance No. 16894, approved October 26, 1892, and Ordinance No. 18680, approved September 8, 1896, known as the Keyes Ordinance. Frolichstein v. Cupples Station L., H. & P. Co., 210 S.W. 90. (2) Respondent complied with all the requirements of amendatory Ordinance No. 18680, known as the Keyes Ordinance, and in pursuance of the terms and provisions of said amendatory ordinance, amending Ordinance No. 12723, filed acceptances and bonds, and fully complied with all the requirements of said Ordinance No. 12723. Frolichstein v. Cupples Station L., H. & P. Co., 210 S.W. 90. (3) Respondent affirmatively contends that it has the lawful right, under the laws and the ordinances and particularly Ordinance numbered 12723, and its amendments, including the Keyes Ordinance, to engage in public service electric business in the city, and use its streets and highways for that purpose, and that it has complied with all the provisions and conditions of said ordinances, entitling it to construct the works which it has constructed, and which it proposes to construct, and to conduct the business which it has been conducting and which it proposes to conduct in the future. (4) The filing of acceptances and bonds by the respondent, under the provisions of Ordinance No. 12723, as amended by Ordinance 18680, conpleted the contract between respondent and the city. State ex rel. Subway Company v. St. Louis, 145 Mo. 590; St. Louis v. Western Union Tel. Co., 148 U.S. 102; State ex rel. v. Ry. Co., 140 Mo. 539; State v. Miller, 66 Mo. 328; City of Minn. v. Ry. Co., 215 U.S. 417. (a) There is no legal requirement that respondent should occupy any particular length of streets or highways, or serve any particular portion of the public in order to be a public utility. Wiggins Ferry Company case, 208 Mo. 641. (b) When the respondent company complied with the law and ordinances within the time fixed, "all the franchises or privileges conferred by the ordinance attached to be exercised when the exigency of the business appeared to demand such exercise." Ransome v. Ry. Co., 104 Mo. 380. (5) As bearing upon the construction of these ordinance provisions, we call attention to the following suggestions in the light of which we believe said provisions should be construed: (a) After the adoption of an amendatory ordinance, the amendment forms part of the ordinance amended, and the two form one complete ordinance, and must be read as one in its application to future transactions. (b) In construing an ordinance or statute, if of doubtful meaning, the Court will consider, among other things, the whole and every part thereof, taken and compared together, including the title; also ordinances or statutes in pari materiae and prior ordinances or statutes. Dart v. Bagley, 110 Mo. 53; Sedalia v. Smith, 206 Mo. 364. (c) In construing an ordinance granting the use of streets for public purposes, a fair and reasonable meaning should be accorded, giving full effect to all the language, discarding none of it as meaningless. Ransome v. Ry. Co., 104 Mo. 380. (d) In construing an act granting the right to construct a bridge for public purposes, over a navigable stream, courts must look to its spirit and reason and purpose. Missouri River Packet Co. v. Ry. Co., 79 Mo. 492; (e) Acts granting franchise rights in streets should be so construed as to prevent monopolies. State ex rel. Laclede Gas Light Co. v. Murphy, 130 Mo. 26. (6) The practical construction of statutes and ordinances by the departments and officials charged with the duty of acting under them, is of great persuasive force and efficacy. Sedalia v. Smith, 206 Mo. 364; Construction Co. v. Ice Rink Co., 242 Mo. 262; State ex rel. v. Railroad, 135 Mo. 648; Orthwein v. St. Louis, 265 Mo. 577; Ross v. Railroad, 111 Mo. 25; State ex rel. v. Sevrance, 49 Mo. 404; Ewing v. Vernon Co., 216 Mo. 689; State v. Gordon, 266 Mo. 412; Folk v. St. Louis, 250 Mo. 141; Smoot v. Bankers' Life Assn., 138 Mo.App. 466; Bloxan v. Electric Light & St. Ry. Co., 36 Fla. 519, 29 L. R. A. 509; United States v. Hammers, 221 U.S. 228; Laroque v. United States, 239 U.S. 64; Kindred v. Union Pac. Railroad, 225 U.S. 596; Logan v. Davis, 233 U.S. 627; United States v. Finnell, 185 U.S. 244; Bank v. United States, 206 F. 374; Ah Kow v. Neuman, 5 Sawyer (U.S.), 560; Smith v. Bryan, 100 Va. 204; Daniel v. Simms, 49 W.Va. 566. (7) Furnishing electricity to the public or such of the public as is reached by transmission lines is a public service. State ex rel. v. Allen, 178 Mo. 577. Neither the amount of business done, nor the number of persons who have occasion to use the service determines the question whether the business is a public service business. Kettle River Co. v. Eastern R. Co., 6 L. R. A. 117; Bridal Veil Lumbering Co. v. Johnson, 34 L. R. A. 369. The uses for which a utility was desired are not the less public because the motive which dictated the location of its works at the particular place was to reach a private industry or because the proprietor of that industry contributed in any way to the cost. Ry. Co. v. Northwestern Co., 161 Mo. 308; Dietrich v. Murdock, 42 Mo. 284; Hairston v. Ry. Co., 208 U.S. 608; Union Lime Co. v. Ry. Co., 233 U.S. 222; Tap Line Cases, 234 U.S....