Missouri Power & Light Co. v. City of Pattonsburg, 125 S.W.2d 20

Missouri Power & Light Co. v. City of Pattonsburg

125 S.W.2d 20

Mo.

1939

Check Treatment

Missouri Power & Light Company, a Corporation, Appellant, v. City of Pattonsburg et al.

Division Two

February 21, 1939

125 S. W. (2d) 20

1128-1133

a loss occurring in the month of November after the crops had matured, but they insist that it was incompetent as to the first and third counts of.the petition which involved losses occurring in the month of June while the crops were immature and at a time when no one could have foretold what considerations might have affected their further growth and maturity.

Again defendant is wrong in its contention. There is no controversy over the fact that the jury were instructed as to the correct measure of damages, which was the value of the crops standing in the fields at the time and place of their destruction. However, to prove such value, and to give the jury the bеnefit of the facts and circumstances from which such value could be determined, plaintiff introduced the evidence in question which tended in a general way to show the probable yield of the crop and its value at the time of its maturity and market, less, of course, what would have been the necessary cost of cultivating, harvesting, and marketing the same. Undеr the authorities having to do with similar situations all such evidence was competent upon the question of the loss sustained by plaintiff at the time and place of the several оverflows, and there was therefore no error committed by the court in allowing the same to be admitted. [

Anderson v. St. Louis, I. M. & S. Ry. Co., 129 Mo. App. 384, 108 S. W. 605; ; ; ; .]

An additional abstract of the record hаs been filed by plaintiff, which has been ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍considered by us only in the light of defendant‘s written objections to it.

The judgment rendered by the circuit court should be affirmed. It is so ordered. Westfiues and Bohling, CC., concur.

PER CURIAM:—The foregoing оpinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.

Dean H. Leopard and Anderson, Gilbert, Wolfort, Allen & Bierman for appellant.

Gillihan & Gillihan, Charles D. Brandom and R. H. Musser for respondent.

WESTHUES, C.—Appellant, Missouri Power & Light Company, filed this suit in the Circuit Court of Davies County, seeking an injunction, against the city of Pattonsburg and its officials, to restrain the letting of contracts for the construction of an electric light system, the issuance of bonds, the levying of taxes for the payment of the bonds, the operation of the plant and for such other relief as the court may deem proper.

The defendants filed a demurrer to the petition allеging that the petition did not state facts sufficient for a court of equity to grant any of the relief prayed for. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The trial court sustained the demurrer and appellant declined tо plead further. Judgment was entered dismissing the petition, whereupon the plaintiff appealed.

Appellant did not offer to give a bond or seek a temporary injunction. Pеnding a hearing of the case the city proceeded to the construction of the plant. Appellant filed a second amended petition wherein it was stated that thе bonds had been sold, the plant constructed and in operation. Appellant contends that the election at which the bonds were authorized was void. It is argued that Sectiоn 12a, Article X, of our Constitution, authorizes the city to submit to the voters the question of becoming indebted “for the purpose of purchasing or constructing . . . electric or other light рlants;” that the question submitted to the voters in this case authorized the issuance of bonds in an amount of $50,000 for the purpose of constructing an electric plant, but did not include the аlternative of purchasing a plant. It is argued that the constitutional provision “does not authorize the aldermen to decide in advance whether to purchase or сonstruct, but after the vote the city officials decide on the method of acquisition.” Our search has not revealed any case where such contention has been made. The case of

State ex rel. City of Columbia v. Allen, 183 Mo. 283, 82 S. W. 103, is cited as authority. In that case the city of Columbia submitted to the voters the question of issuing bonds for the purpose of purchasing a light and water plant and for the construction of such plant. The contention was made that the question was submitted in the alternative and therefore the election was void. But this court held that the question submitted was, whether or not to purchase the plant and improve it. The court held that this could be done. In the course of the opinion the court rеferred to the case of , where the question was submitted in the alternative, and held that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍so submitting the question did not vitiate the election. In , supra, the court said:

“A kindred contention was made in the case of
State ex rel. Town of Canton v. Allen, 77 S. W. 868, and it was held by this Court en Banc that it was competent to submit such a proposition in the alternative. We think that case disposes of this point. Here the proposition is one only; i. e., to buy the old wаterworks and electric plant and improve them.” (Italics ours.)

So the case cited by appellant seems to be an authority against its contention. Those interested in this question will find cases annotated in 5 American Law Reports, 538, where it is stated that the majority rule permits the proposition to be submitted in the alternative. The minority rule holds that to submit such a question in the alternative renders the election void. [See 5 A. L. R. 542.] The states so holding are, Kansas, New Jersey and Ohio. The case which precedes the annotations is

Albuquerque v. Water Supply Co., 24 N. M. 368, 174 Pac. 217, 5 A. L. R. 519. The latter case reasoned that to submit the question in the alternative did not render the question a dual one, but that the purpose was single, that is, the acquisition of a municipal plant. From ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a reading of those cases it seems clear that the submission of the question in the singular, as was done in this case, is fully authorized. We cannot conceive any logical argument to the contrary.

It is next contended that the city of Pattonsburg did not obtain a certificate of convenience and necessity from thе State Public Service Commission; that this was necessary before a plant could be legally constructed. The following cases definitely decide this contention against appellant:

Missouri Public Utilities Co. v. City of Poplar Bluff, 2 P. S. C. 442; ; ; . In the latter case the court said:

“The policy of our Legislature concerning the light and power business, up to the present time, has been to leave the field open to both private and public оwnership. In any case where the people are not satisfied with the results of regulation, the right of any city to build its own plant, without asking the permission of the commission, and to furnish elеctricity to its people at such rates and under such conditions as it sees fit, without being subject to any regulation except the will of its own citizens, remains as a further safeguard in thе public interest.”

Appellant makes the point that the original plan of the city was to obtain from the Federal Government a grant of $17,420 and a loan of $50,000, for the purpose of constructing a light plant; that plans and specifications were prepared with that proposition in view; that that plan was still pending at the time of the election. It was alleged that, after the election authorizing the issuing of bonds in the amount of $50,000, the Federal authorities rejected the city‘s application. It is contended that the city officials then changed the plans and constructed a light plant of a smaller capacity than originally intended. It is argued that the city officials were, under these circumstances, not authorized to proceed with the building of a plant without resubmitting the new plan to the voters of the city. The ordinance ordering the election provided specifically that it was for the purpose of determining whether the city should become indebted in the sum of $50,000 for the purpose of constructing an electric light and power plant. No refеrence was made to the proposals made to the Federal Government. Under the constitutional provision, Section 12a, Article X, above referred to, the pеople of Pattonsburg had the authority to vote an indebtedness upon the city for the purpose of building a light plant. This they did. Whether it was the expedient thing to do was for the peоple and the city officials to decide and not for the courts. Neither did the rejection of the plan by the Federal authorities, for whatever reason they deemed proper, diminish the power of the city to build its own plant. It is evident from plaintiff‘s petition that the city was determined to build a light plant. At the time of the election the request for Federal aid had not been granted. There is no allegation in the petition that any fraud was practiced on the voters, or that they were misinformed as to the true facts. We do not see any ground for a court of equity to enjoin the collection of the tax authorized by the voters, or to enjoin the authorities from operating the plant.

The judgment of the trial court is affirmed. Cooley and Bohling, CC., concur.

PER CURIAM:—The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.