97 Mo. App. 20 | Mo. Ct. App. | 1902
— The plaintiff is a city of the third class and the defendant is a business corporation organized in 1897 under the provisions of article 9, chapter 12, Revised Statutes 1889. The plaintiff was organized under the Act of March 15, 1873 (Sess. Acts 1873, p. 221), and the amendatory Act'of February 27, 1875, and continued to thus exist until 1890 when it became and ever since has remained a city of the third class under the statute (Sess. Acts 1893, p. 65).
In 1885 the plaintiff by ordinance granted the Sperry Electric Light and ^Power Company and its assigns permission to erect, maintain and operate electric light works and to transmit power by means of poles and,wires for a period of twenty years. In 1894 the plaintiff by a further ordinance granted to F. H. Fitch and assigns the privilege to construct, maintain and operate over certain of its streets and alleys; an electric railway, and also the further 'permission to erect poles and wires for electric lighting purposes. It stands admitted' by the pleadings that the plaintiff while it existed under its special charter (the said Act of 1875) the privilege was granted by it to the assignors of the defendant to use 'its streets and alleys for the erection of poles and the swinging of wires thereon, and that the defendant had succeeded to the ownership of the said privileges so granted to its assignors, and as such assignee was occupying said streets and alleys thereunder.
The Sperry privilege was granted in 1885 while the plaintiff was governed by the Charter Act of 1875, so that whether that act authorized the passage of the ordinance granting that privilege is one of the decisive questions we are required to determine. Sections 19 and 26 of article 5 of that act provides that the city council shall have the power by ordinance “to provide the city with, water und light” and to provide for lighting the streets and erecting lamps thereon; and section 49 of the same article provides that the said council shall also have power to erect, maintain and operate waterworks or gasworks and to regulate the same; to-acquire grounds on which to erect such works, etc.; “provided (1) the mayor and council may in their discretion grant the right to any person or persons to erect waterworks or gasworks and lay down pipes, mains, etc., for the use of the city and its inhabitants as the council may by ordinance prescribe; provided (2) that such right shall not be granted for a longer time than thirty years and shall not be granted unless the consent of a majority of the qualified voters of the city voting at an election for that purpose shall so determine. ” ‘
These three sections of the act are in pari materi’a and must be treated as if one section and that construe
But if this construction is considered too narrow, and if the cohtention be upheld that the power to erect an electric plant or to confer that power upon one or more persons is implied in the terms of the act, still the
Turning to the other question, that is to say,' whether or not the passage of the said ordinance relating to the grant to Fitch and assigns was an authorized exercise of its charter power, it is to be observed that this ordinance was passed in 1894, after the plaintiff -had become a city of the third class under the .statute. So that the question is to be determined by reference to the Act of April 19, 1893 (Sess. Acts 1893, p. 85). By section 95 of that act the council were authorized to provide for the lighting of streets and the erection of lampposts, poles and lights therefor, and to make contracts with any person for lighting the streets with gas, electricity or otherwise, provided (1) that no contract should be for a longer period than ten years and provided (2) that no such contract should obtain any validity until ratified by a two-thirds majority of the qualified voters, etc. The section further provides that the council, should have the right to erect and operate gasworks, electric light works or works of. any other kind or name, and to erect lampposts, electric wire poles or. any other apparatus or appliances necessary to light the streets, alleys, etc.; and in the third proviso of the section the council are authorized to grant the right to any person to erect such works, lay the pipe, wires -and erect the posts, poles, etc., therefor, and in the fouidh proviso of the section it is further provided that such right to any such person shall not extend for a longer period than thirty years, nor be
The second and fourth proviso above referred to render a concession by the council, like that to Pitch, nugatory unless consented to by the qualified voters of the city. No such consent to the Pitch concession was ever obtained. While the ordinance in so far as it is intended to furnish authority to Pitch and his assigns to erect upon the streets and alleys poles and wires for the transmission of electricity for heating, lighting and power purposes is invalid and inefficacious, except that it is sufficient to authorize Pitch and his assigns as a part of the equipment of said street railway provided for in other sections of the ordinance, to erect and maintain poles and wires in the streets and alleys of the city incidental to and in connection with the operation of the said street railway, but such right can not be disconnected with the operation of said street railway and transferred to one who does not own the said street railway franchise nor operate the same under it. This ordinance not having been consented to by the qualified voters of the city, as required by the statute, which was the charter of plaintiff, was without legal validity in so far as it authorized the grantee therein to erect posts and wires in the streets of the city to light the same; and to that extent the right ‘conferred by it was not the subject of transfer and, therefore, defendant can base no right on that ordinance.
Some reference is made in briefs of counsel to Waterworks v. Webb City, 78 Mo. App. 422, but that case is not in point here. The city was not there as here restricted in the exercise of the power, that was in question, to a particular mode. Where such a' restriction in a charter power exists, that power can not b$ exercised in a manner that is inconsistent with such restrictions. It seems quite clear to us that the power' conferred on the plaintiff city'by said several legislative enactments was exercised in a manner inconsistent with the restrictions therein imposed and, therefore, they are invalid and did not confer upon the grantees therein
Defendant finally argues that even if the poles and wires of defendant were a continuing public nuisance, the plaintiff by reason of its long acquiescence therein is estopped to claim injunctive relief. One of the difficulties about this contention is that no estoppel or acquiescence was pleaded or relied on in the trial, and, hence, there is no issue of that kind before us for consideration. In no case wherein pleadings are required can an estoppel in pais be made available unless it is pleaded. Railway v. Curtis, 154 Mo. l. c. 20; Avery v. Railway, 113 Mo. l. c. 568; Hammerslough v. Cheatham, 84 Mo. l. c. 21; Noble v. Blount, 77 Mo. l. c. 242; Ferneau v. Whitford, 39 Mo. App. l. c. 316; Webb v. Allington, 27 Mo. App. l. c. 571.
Accordingly, we shall reverse the decree and remand the cause.