276 Mo. 509 | Mo. | 1918
Lead Opinion
At all the times hereinafter mentioned, the United Eaiiways Company of St. Louis was operating its system of street railways in that city under and by authority of Ordinance No. 19,352, approved April 12, 1898. Said ordinance after authorizing the construction and operation of street railways upon and over certain streets of the city, provided that:
“A fare of five cents shall be charged for passengers of twelve years of age and over, and one-half of said fare for -persons under twelve and over five years of age. Children’s tickets shall be sold by conductors on the car at the rate of two tickets for five cents. Transfers shall be given so as to transport passengers by a continuous trim from one point on the system to any other point on the system.”
This ordinance was duly accepted in writing- by said Eailwavs Company, and was properly filed in the
Thereafter, in February of 1918, the United Railways Company filed with the Public Service Commission a petition asking that it be allowed to charge a reasonable compensation for the .service it rendered the public in operating its street railways in the City of St. Louis.
The City of St. Louis was allowed to intervene. It filed an “answer and protest” in which it challenged the jurisdiction and power of the Public Service Commission to annul, change or impair any terms made in said ordinance enacted by the Municipal Assembly of the City of St. Louis granting the Railways Company the right to construct and operate its railways in the streets of the city.
The answer interposed as a defense Section 20 of Article 12 of the Constitution of 1875, which reads: “No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchise so granted shall not be transferred without similar assent first obtained.”
The public Service Commission granted the petition of the Railways Company and authorized it to collect from adult passengers a fare of six cents instead of five cents, as provided for by said ordinance.
The City of St. Louis obtained from the Circuit Court of Cole County a writ of certiorari, ordering the Commission to sent up the record in the cause so that it might review the rulings of said Commission in the cause, and upon proper hearing and after due consideration, that court reversed the finding and rulings of the Commission. From that judgment of the Circuit Court, an appeal was duly taken to this court, both by the Commission and the Railways Company.
The second proposition before referred to will be stated and discussed in another part of this opinion.
Counsel for appellants contend that the judgment of the circuit court is erroneous for the reason that the making of rates to be charged for the transportation of passengers by common carriers is the province of the State in the exercise of its police power: that this power is inherent in the State as a part of its sovereignty, and unabridgable by virtue of Section 5 of Article 12 of the Constitution, and that under this power the franchise ordinance before mentioned, whether it be considered a contract or regulation, must give way when it conflicts wth legislation of the State in the exercise of its power. That when the State acts in that regard, the power of the city ceases.
It must be conceded, as contended for by counsel for respondent, that the Legislature has no power to grant to a street railway company the authority to construct and operate street railways upon and over the street of any city in this State without the consent of the duly constituted authorities thereof. Such is the express inhibition of Section 20 of Article 12 of the Constitution of this State for the year 1875; and the rulings of this court have been uniform in upholding that provision of the Constitution. [State ex inf. v. Lindell Ry. Co., 151 Mo. l. c. 185; St. Louis and Mera
This court has also uniformly held that the city in giving its consent as provided for by said Section 20 of Article 12- of the Constitution may impose such conditions as it may deem necessary and proper; but whether that power is derived from the constitutional provision, the charter of the city, or derived from the public policy of the State, has not been decided.
The following’ cases hold that the city may impose such conditions: Union Depot Ry. Co. v. The Southern Ry. Co., 105 Mo. 562, l. c. 573 and 574; St. Louis and Meramec River Ry. Co. v. City of Kirkwood, 159 Mo. 239; City of St. Louis v. United Railways Co., 263 Mo. 387.
To the same general effect are the following authorities: Kansas City v. Kansas City Belt Ry. Co., 187 Mo. 146; In re Kansas City Ry. Co., 3 Mo. P. S. C. 593; In re Southwest Missouri Ry. Co., 4 Mo. P. S. C. 13; People v. Barnard, 110 N. Y. 548; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Gaedeke v. Staten Island, etc., R. R. Co., 43 App. Div. 514; People ex rel. v. North Tonawanda, 70 Misc. Rep. 91; Allegheny v. Millville, etc., R. R. Co., 159 Pa. St. 411; Plymouth Tp. v. Chestnut Hill, etc. R. R. Co., 168 Pa. St. 181; West Chester Boro. v. Postal T. C. Co., 227 Pa. St. 384; Ashworth v. Pittsburg Ry. Co., 231 Pa. 539; Point Bridge Co. v. Pittsburgh Ry. Co., 240 Pa. 105; McKeesport v. McKeesport, etc. Ry. Co., 252 Pa. St. 142; 3 Elliott on Railroads (2 Ed.), sec. 1081; Detroit v. Detroit, etc., Railroad Co., 184 U. S. 368.
From this premise it is contended by counsel for respondent that since the Leaislature could not under the inhibition of said constitutional provisions in the first instance have granted the Railways Company the authority to construct and operate its railways upon and over the streets of the Citv of St. Louis; and that since the city alone possessed the absolute' and exelu
It must be conceded that, under the adjudications of this court, the City of St. Louis had the absolute and exclusive authority to grant to or withhold its c'onsent from the Railways Company to construct and operate its railways over the streets of the city. Union Depot Ry. Co. v. Southern Ry. Co., 105 Mo. 562, l. c. 573; St. Louis and Meramec River Ry. Co. v. City of Kirk-wood, 159 Mo. 239; Kansas City v. Belt Ry. Co., 187 Mo. 146; City of St. Louis v. United Railways Co., 263 Mo. 387, l. c. 439.
If it were not for this constitutional provision there would be no doubt as to the power of the Legislature in the exercise of its police power to increase or authorize the Commission to increase the rates of fares stipulated for in the franchise ordinance; as I understand it, this is practically conceded by counsel for the respondent. But in the presence of that provision, it is contended that the Legislature is shorn of that power. Their position is thus stated: “The police power is always subject to the rule that the Legislature may not exercise any power that is expressly or impliedly forbidden by the Constitution;” and in support of this
The correctness of the proposition just stated is fully supported by the authorities cited, and counsel for appellants do not question its soundness; but insist that said Section 20 of Article 12 of the Constitution has no application to the facts of this case.
This brings us to the crucial point presented by this record, and I am of the opinion that said Section 20 of the Constitution has no application whatever to this case.
It will be observed by reading said section that it expressly prohibits the Legislature from “granting the right to construct and' operate a street railroad within any city, . . . without first acquiring the consent of the local authorities,” etc. This court, as previously stated, has repeatedly held that this language of the Constitution not only prohibits the Legislarure’from granting that right to a street car company, but has affirmatively conferred the absolute and exclusive power upon the city to grant that right, or to absolutely deny it; but no authority whatever is thereby conferred upon the city to prescribe the terms and conditions upon which the street railroad may be constructed and operated upon the streets of the city, much less the power to fix or prescribe the fares the company may or may not charge for the transportation of passengers. But it>is stated by counsel for respondent that this court has repeatedly held that the city in giving such consent may prescribe the fares it may charge. Counsel are mistaken in that assertion. Insofar as I have been able to ascertain, no such question has even been before this court, much less decided by it. As I understand the decisions, the furthest this court has gone in that direction was to hold that because the city could altogether deny a street car company the right to operate its roads within the corporate limits, the city had the right to dictate the terms and
But it should be observed that this court, in deciding that the city might dictate the terms and conditions upon which the road might be admitted into the city, did not hold that the power to so. do was conferred upon it hy said Section 20 of the Constitution, but placed its ruling squarely upon the ground that because the city had the absolute and exclusive right to exclude the roads from the city entirely^ it might admit them upon such terms and conditions as it deemed proper; that the greater power to exclude them included the incidental right to admit them upon such terms and conditions as it might deem best. [St. Louis & Meramec Ry. Co. v. City of Kirkwood, 159 Mo. 239 l. c. 253.]
In the latter case, this court on page 253 quoted approvingly from the case of Allegheny City Railway, 159 Pa. St. 411, the following language: “The man who can give the whole, can give a part, or who can grant absolutely, can grant with a reservation of rent or other condition. He who can consent or refuse without reason does not make his consent or his refusal either better or worse by a good or bad reason.” By parity of reasoning, it must be held that a city which can grant the whole can grant a part, that is, the whole burdened with conditions and limitations, and that a city which can absolutely refuse to grant permission to a street ear company to construct and operate street railroads upon its streets may refuse the grant unless the company agrees to transport passengers for certain fares. But that does not signify that the power of the city to impose these conditions and limitations, or the right to stipulate for fares, is derived from the constitutional provision granting to the city the power to consent to the company entering
It must be borne in mind that I am not now dealing with that constitutional provision which prohibits the enactment of any law which impairs the obligaton of a contract and which will be considered later, but said Section 20 of Article 12, which it is contended has abridged the police power of the State, - and prevents the Legislature from fixing fares to be charged by street car companies in the City of St. Louis.
The same general rule is announced in Union Depot Ry. Co. v. Southern Railway Co., 105 Mo. 562, l. c. 573. In that case, while the court recognizes the
A similar question of power came before this court in the ease of State v. Parker Distilling Company, 236 Mo. 219. There it was conceded, and all of the authorities held, that the Legislature had the absolute and exclusive power to prohibit the manufacture and sale of intoxicating liquors in this State; that notwithstanding that power, counsel for the defendant contended that the act of the Legislature providing for licensing manufacturers of malt and spiritous liquors to do business in this State, was void because it made no provision for their regulation. After an exhaustive review of all the authorities, State and Federal, bearing upon the question of power, this court in that case, on page 274 used this language:
“When we bear in mind the foregoing idea, that the liquor traffic in this State has no legal rights, save and except those expressly granted by license and the statute under which it is issued, then we can more clearly see that the State may impose such conditions,
“The authorities fully support the proposition that the imposition of the license tax alone is the exercise of the police power, and that the person who desires to engage in the liquor traffic must pay, or agree to pay, that tax, before the license will issue, and the question of regulation is foreign to the subject. The manner and extent of the regulation rests exclusively in the discretion of the State. The regulations may be much, little or none, as the Legislature may deem wise, and this is the first time I ever heard the validity of such a law being questioned by those engaged in the liquor business, because it provides for slight rather than stringent regulation.”
The same is true in the case at bar. The power of the city under the constitutional provision mentioned to grant consent to the company to enter the city was absolute and rested exclusively with the former; it, therefore, might place such conditions and limitations upon such consent or none at all as it deemed proper. But the power to impose such conditions and limitations is wholly different from the power to give consent.
I, therefore, feel confident that the City of St. Louis, under the greater power to admit or deny the Railways Company the right to enter the city, was left at full liberty, not under the constitutional provision mentioned, but under its general reserved powers, to impose such terms and conditions upon the company as it deemed proper in permitting it to operate its railways upon the streets of the city; this of course included the power to fix by agreement the fares to be charged by the company for the services to be performed under its charter, yet in line with the public policy of the State, as gathered from the general trend of the laws enacted for the general welfare.'of all.
The same principle is announced in the case of Thrasher v. City of Kirksville et al., 204 S. W. 804. That was a suit brought by the property owners against
The following cases announce the same rule, and are cited with approval in: Thrasher v. Kirksville, supra; Galbreath v. Newton, 30 Mo. App. l. c. 394; Clapton v. Taylor, 49 Mo. App. 117; Keane v. Cushing,
The same is true of the case at bar. Section 20 of Article 12 of the Constitutional authorized the City of .St. Louis to permit street car companies to construct and operate street railroads upon the streets thereof, but did not require the city to fix the fares, nor does it prohibit the city from so doing. The council then, according to the ruling in the ease last cited, had the undoubted power to require the railways companies to carry passengers for the sums stated in the ordinance. This was clearly upon the theory that such requirement was not prohibited by the Constitution, but was in keeping with the general mode of granting to street railroads permission to enter cities, towns and villages throughout this State, if not the country at large, and was in harmony with the general well-being of the city and the inhabitants thereof, and for that reason the city council had the unquestionable authority independent of the Constitution to fix the fares to -be charged by the ordinance. When reduced to their final analysis, the foregoing-authorities in substance announce this rule: That where a person or corporation, including a city, has the absolute and exclusive legal power or authority to do or not to do a particular thing, then no additional power or authority, except mental capacity and physical force, is necessary to enable such person, corporation or city to impose such conditions or limitations as he or it may deem proper upon the mode or manner of the performance or non-performance of that thing. Possibly sound public policy of the State and the general-wel
Again, if a county court may permit a street ear company to operate its roads over the public roads of the county without conditions imposed or duties required, why may not a city do the same? Both are governed by the same constitutional provision, and, if the court should so grant its consent, may not the Legislature subsequently impose duties and burdens upon the company for the privilege of continuing to operate its cars over the public roads? Certainly it may; this has been frequently done by county courts and city councils, such asA requiring such companies to construct and maintain bridges, viaducts, etc. Or suppose the county court should, as a condition to its consent to let the company occupy a public road, require it to agree to
If I am correct in the foregoing conclusion, then the Legislature had the undoubted authority under the police power of the State to increase or decrease those fares as it deems proper or to authorize the Public Service Commission to do the same. The following cases so hold: State ex rel. v. Public Service Commission, 275 Mo. 201; City of Fulton v. Public Service Commission, 275 Mo. 67; Public Utilities Commission v. Railroad, 275 Ill. 555, 570; Chicago v. O’Connell, 278 Ill. 591; Atlantic Coast Electric Ry. Co. v. Commission, 104 Atl. 218; Collingswood Sewerage Co. v. Collingswood, 102 Atl. 901; Salt Lake v. Light & Traction Co.; 173 Pac. (Utah) 556.
And this is true whether the franchise ordinance mentioned is considered as a contract or a regulation enactment; it having been enacted and agreed to subject to the police power of the State, it must give way upon the exercise of that power by the Legislature or by its duly authorized agent, the Public Service Commission ; and it having acted the ordinance or contract, as you may deem it, must give way to the extent herein-before stated. [State ex rel. v. Public Service Commission, 275 Mo. 201; City of Fulton v. Public Service Commission, 275 Mo. 67.]
There are other cases in and out of this State announcing the same doctrine, and some in other states and possibly one in this State, State ex rel. St. Joseph Water Co. v. Easton, 192 S. W. 1006, announcing a contrary doctrine, especially in the case of Matter of Quinby v. Public Service Commission, 223 N. Y. 244. But after careful consideration of all of them, we are
This proposition must be decided in the affirmative. Section 23 of Article 9 of the Constitution in express terms provides that “the charter and amendments shall always be in harmony with and subject to the Constitution and laws of Missouri,” etc.; and Section 25 of the same article also expressly provides that “the General Assembly shall have the same power over the city and county of St. Louis that it has over other (¿ties and counties of this State.”
This is not a new question before this court. The same ruling as above announced was made in the case of Ewing v. Hoblitzelle, 85 Mo. 64, l. c. 76, and State ex rel. Garner v. Missouri and Kansas Telephone Co., 189 Mo. 83, l. c. 99.
We are, therefore, of the opinion that the judgment of the circuit court should be reversed and the cause remanded with directions to proceed with the cause as required by law.
Concurrence Opinion
(concurring). — Where not constitutionally inhibited, the power to fix rates of steam and street railroads is a legislative faculty which is dele gable to a Public Service Commission. Neither the Legislature nor its administrative agency can fix rates which are confiscatory oi the property of the carrier. If there had been a specific rate per passenger prescribed by a general statute at the time the street rail
It necessarily follows that a Public'Service Commission, clothed quod hoc with this legislative authority, might prescribe rates conformable to the preservation of an utility necessary to the public convenience anSt welfare.
This is exactly what was ruled in the Sedalia and Fulton cases, under which the conclusion is inescapable that the action of the circuit court in setting aside the finding of the Public Service Commission was error. Hence, my concurrence in the reversal of the judgment of the circuit court and the affirmance of the order of the Commission.