Union Electric Light & Power Co. v. City of St. Louis

• Decision Date: 24 December 1913
• Citation: 253 Mo. 592,161 S.W. 1166
• Parties: UNION ELECTRIC LIGHT & POWER CO. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

161 S.W. 1166

253 Mo. 592

UNION ELECTRIC LIGHT & POWER CO. v. CITY OF ST. LOUIS.

Supreme Court of Missouri.

December 24, 1913.

1. ELECTRICITY (§ 1)—POWER RATES—ORDINANCE —NULLIFICATION.

Repeal of Rev. St. 1909, §§ 9568, 9569, 9570, conferring on the city of St. Louis authority to fix rates for service of public utilities operating under franchises within the city, by Acts 1913, p. 651, § 139, vesting such power in the public service commission, operated to nullify St. Louis city ordinance No. 24196, approved February 24, 1909, prescribing a maximum electric rate, and regulating the measurement of the service and furnishing of new lamps, etc.

2. APPEAL AND ERROR (§ 781)—SUBJECT-MATTER —TERMINATION PENDING APPEAL— EFFECT.

Where, pending appeal in a suit to enjoin the enforcement of a city ordinance fixing maximum electric rates and regulating the furnishing of electric light and power, the ordinance was nullified by the repeal of the statute under which the city derived power to pass it, the appeal thereafter involved but a mere moot question, and would be dismissed.

En Banc. Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Suit by the Union Electric Light & Power Company against the City of St. Louis. Judgment for plaintiff, and defendant appeals. On motion to dismiss. Granted.

The Legislature of this state in 1907 passed an act approved by the Governor May 8, 1907, which required the owners or operators of certain public utilities, under franchises granted by the state of any of its cities, to conform their charges for service of utilities to the amount "fixed" by the ordinances in the respective cities where they were conducted. The words of the act granting this power to the cities are as follows: "Are hereby granted power or authority to fix, by ordinance, the rates of the charge for the service of such utilities within their corporate limits, and to provide and enforce fines and penalties for the violation thereof, and to change such rates, by ordinance from time to time, as often as may be deemed necessary; provided, however, that such rates must be reasonable, and shall not be changed oftener than once every two years." Session Acts 1907, p. 120, § 1. The act also afforded a right of attack in the circuit court, within 20 days after the passage of such ordinance, to test its validity and the reasonableness of such rates, with a further right of appeal by either party as in other cases. The act further provided that any such city or town might create a commission to investigate all facts and matters touching the establishing of a just and reasonable rate of charge, and report its findings and recommendations to the city council. The provisions of this act were carried into the Revised Statutes of 1909, where they now appear as sections 9568-9570.

In pursuance of the above delegation of authority, the city of St. Louis, by ordinance No. 24196, approved February 24, 1909, created a public service commission and, upon a report from that body bearing on the business and property and rates charged by the Union Electric Light & Power Company, adopted a further ordinance, which is No. 25812, approved April 12, 1911. This ordinance by its terms went into effect six months after its approval. Section 1 of said ordinance prescribed a maximum rate of 9½ cents per kilowatt hour for the services of electric current. Said ordinance by section 3 provided that all owners or proprietors engaged in supplying electric current, "such be subject and bound by the following regulations." It then provided that such persons shall furnish to the consumer of electric current meters free of cost, and under certain circumstances to supply them lamp renewals upon the return of burnt-out lamps, and forbade them to contract with consumers not to use other means than electricity for light or power, or to require any consumer to contract for a longer period of service than one month, and prohibited them from charging any rental for service connection or meters, or to require the customer to agree to use a fixed amount of electric current, or to pay any fixed sum for services rendered him, prohibited them from requiring any customer to make a deposit to secure payment of services in excess of two months' average business, and requiring them to pay interest at 5 per cent. per annum on all deposits, and requiring them to furnish free service connections to the extent of 100 feet from the street to the inside walls of the premises of such consumer. Immediately after the passage of this ordinance, to wit, April 28, 1911, the Union Electric Light & Power Company, a corporation engaged in the city of St. Louis in the business of furnishing and selling electricity for lighting, heating, and power, brought this suit, praying that said ordinance, setting it out in hæc verba, be declared unconstitutional and void as to said plaintiff and that its enforcement be perpetually enjoined.

The grounds upon which the ordinance was sought to be annulled were: That its enactment by the city was in excess of the power delegated to it by the act of the Legislature of Missouri (R. S. 1909, §§ 9568, 9569, 9570), in that the only power purported to be given to the city by the terms of said act of the Legislature, was the power "to fix, by ordinance, the rates of charge for the services of such utilities within their corporate limits," and that from these words the city could not exercise the broader power of establishing a maximum rate and regulating the business of complainant as it had attempted to do by the ordinance in question; that said ordinance was unreasonable and confiscatory, and attempted to impair the right of contract and the freedom of contract guaranteed to plaintiff by the Constitution of Missouri (section 4, art. 2).

The defendant city filed its amended answer, admitting that plaintiff is engaged in the city of St. Louis in the business stated in its petition, admitting the passage by defendant of the ordinance referred to in the petition, and that it was correctly copied therein, and admitting, further, that "unless restrained by this or other court of competent jurisdiction it will proceed to enforce the ordinance against the plaintiff." Defendant further answered, denying that the maximum rate of charge for electricity established by said ordinance is unreasonable as concerns the business of plaintiff, denying that, if enforced, it would require plaintiff to furnish electric current for a sum which will not yield a fair and reasonable return upon the cost and value of its property, and denying that said ordinance is therefore unreasonable, oppressive, or confiscatory. Upon the filing of said answer plaintiff filed a written motion for judgment upon said answer on the ground of the admission in the answer as to the passage of the ordinance and the purpose of the city to enforce it against the plaintiff. Said motion for judgment concludes to wit: "Whereupon this plaintiff states that defendant by said answer admits that it has passed, and upon the filing of the petition herein threatened, and now still threatens, to enforce said ordinance, under an act of the General Assembly authorizing it merely to fix, but not to regulate the rates which may be charged by this plaintiff. And plaintiff states that it thus appears by the admissions of defendant that the ordinance aforesaid, the enforcement of which is sought by this plaintiff to be restrained, is null, void, and of no effect, because, among other grounds assigned in its petition it does not come within the exercise of the power conferred upon defendant by said act of the General Assembly. Wherefore plaintiff now moves the court for a judgment and decree upon said answer as is prayed by it in its petition." Upon the consideration of this motion the court on the 12th of February, 1912, entered a decree sustaining the prayer for judgment and perpetually enjoining the enforcement of said ordinance against plaintiff. After the overruling of a motion for new trial defendant appealed to this court.

During the pendency of said appeal the respondent filed in this court a motion to dismiss...