*1 562
v. 206 App. Mo. Tyler, S. W. rulings and other of our appeal courts of which are in conflict ruling with the in this case. of the circuit accordingly Hig- court is reversed. Davis, bee and CC., concur.
PER foregoing opinion by HeNWOOD, CURIAM:—The C., adopted as judges of the court. All of the concur. City Public Service Commission of State of Missouri v. of Kirk (2d) wood, Appellant. S. W. Two,
Division March Brockman, Hausner & Versen for appellant; Charles M. Polk and Ralph Baxter, & amici curiae. *2 respondent; Charles M.
D. D. McDonald and J. P. Painter Baxter, Ralph & curiae. Polk and amici
DAVIS, C. This is suit the Public Service Commission to enjoin defendant, city of Kirkwood, furnishing from water service residing outside the of said unless and until it obtains a.nd receives commission a certificate of public necessity. From decree and en- joining the furnishing defendant from person outside its limits, except those whom it furnished water before Act April effective, until it became obtained convenience, from the Public Service Commis- sion, appeals. defendant
Defendant, city Kirkwood, in St. Louis County, is a *3 class, owning operating fourth system. its water From 1903 system to 1923 it obtained water for its from the West St. Louis Light Company, discontinuing purchase Water & in 1923. Dur- ing period system supplied this water from its own inhabit- city ants and to certain the limits, residents on Monroe Geyer on Avenue and Road. Such suburban residents were thus ob- their, taining supply Kirkwood when the Public Service Commission Act became effective. April 15,
This act became effective The Public Service Commission has and does not not contend that defendant was re- quired of to secure certificate necessity in order water to customers had defendant on Monroe Ave- Geyer nue and at the time the act became Road effective. began city serving In 1923 defendant outside its limits to Joseph’s Highlands, the known Meramee St. College, districts Heights Heights and property and Woodbine Subdivision Woodbine adjacent decree of Circuit thereto. the date of the the Court Since properties County case, this the of St. in the of customers Louis part annexed now form have been above mentioned , Consequently, the Public Service Commission city of Kirkwood. required is secure a the defendant certif- now claim that
does not necessity as to residents whose land public, of icate by city brought the limits annexation. has been within contract, 11, 1924, dated December By the Lutheran terms of a the property along owners Manchester Road Orphans’ Hiome other city the contributed various of to the north northwest of $16,524.55, defray laying cost money, aggregating the sums Road. The were installed Manchester mains main west on a water by city the under contract in and became property the city. city obligated The to maintain the water mains and furnish water to the contributors. Fifteen of the said contributors are now being served with water. Thereafter, on May 22, 1925, city attempted Kirkwood
to file with the Public Service Commission a schedule of rates details as to service of water to suburban residing consumers city limits, but the said commission refused to file receive and same, returning city, it to applied because it had not and obtained a per- of convenience and and the mission and of the commission to furnish and render service to suburban controversy right residents. This involves the city Road, beyond to serve along such residents Manchester obtaining prior without consent of the Public Service Com- mission.
Testimony was objection admitted over the of the defendant County the effect Company that the St. Louis Water had franchise operate system St. Louis therein, that it had rendering mains and territory was service around adjacent city negotiations poten- to the of Kirkwood and had had with buyers territory tial Road, on Manchester west"of the city, prior water to city, service of them said and that the company protested city against said water Kirkwood arrangement entered into with the of Des inhabitants furnish inhabitants, ground Peres to water to such that the' on public necessity had not obtained and convenience to furnish water outside of its limits. testimony Henby, president of Mr. W. H. of the St. plaintiff, Company, predecessors
Water called shows *4 in company main on Holmes Avenue of that constructed water Big city 1908; mains on the of in 1907 that it has the Kirkwood or southwardly Geyer Geyer and on the as far west as Road Bend Road Road, being in shown the installed not the date these mains were and never company no mains now record, ivater has and that the said in Wood- Highlands district, the liad in the Meramac mains in the Heights Addition districts or Heights and Woodbine bine territory The Denny Road. of district on west Manchester Road corporate limits the territory was outside of the which described is by said being water with city was served the of Kirkwood and of testimony that shows was city at time the suit instituted. the proceedings St. Louis the these of at the time of the institution Light & Water (successor West St. County Company to Water operate County to St. Louis Company) had a franchise county; throughout the system therein, and was Kirkwood, city of adjacent it had and that its mains around 56.6 and negotiations had prospective buyers had with of the
territory Road, on Manchester mentioned, above prior and to the be- ginning of service of city water to them Kirkwood, the of the County'Water St. Louis Company protested had city to Kirk- the of against wood proposed arrangement to be entered into city with Road, the residents of ground Manchester on the that the city had public not obtained a of certificate convenience and neces- sity to furnish water its corporate outside of limits, and further that Company St. Louis ready Water was willing and lay to pipes supply and mains so as to the residents of Manchester Road with water. The defendant states the issues in this case its brief, plaintiff to agrees, as follows: plaintiff,
“The Missouri, Public Service Commission of contends city corporation’ that the of Kirkwood is ‘water within the terms meaning Law; and of the Public Service Commission that Missouri provisions given supervision, jurisdiction, of said law it is authority charges services, power with rates, and over the and authority supervise regulate and of to and said rates and service duty corporations Missouri; and of and that it is was the of city apply of commission for certificate Kirkwood to authority permission necessity, and and and obtain convenience the limits said to extend its water service mains ' city. _ city defendant, Kirkwood, contends the 'Public “The that require right authority has nor Service Commission neither application commission city make receive necessity permis- or or secure certificate city its water mains or extend before said approval sion outside of the limits additions thereto or make water connections located; city to consumers there furnish water of the authority city jurisdiction over given is commission outside where water furnished and ‘service’ as to ‘rates’ authority jurisdiction does not city’s and that the said any time, any ex- seeks make time, each apply for and its limits to outside of tension, or connection addition necessity; of convenience obtain rates to, file its schedule permitted to be, and should desires being city’s without outside water furnished service for public con- apply and receive required to first out- consumers venience or side of limits.” *5 Public Service to the question stated relates I. The its owning operating and municipality, require a to Commission necessity to and of plant, secure a to
supply water persons private to corporations beyond corporate its limits.
The sections mentioned, herein indicated, unless otherwise allude to Revised Statutes 1919. Section 9079 empowers authorizes and operate to cities own and waterworks. Section 9083 authorizes and empowers owning cities waterworks to water to other munic- ipal corporations persons private corporations beyond city, limits of such enter to into contracts for such time and upon such terms and regulations under such may rules and as be agreed upon by parties. the contracting Assembly in The General 1913 enacted what is called the Public Service Commission Act. Its general object regulate public is to nothing utilities. We see having the act repealing effect 9079' Sections Sec- 10425, tion 7, subjects subdivision however, supply- municipality ing supervision wrnter its limits to the of the com- mission as to service and rates.
The Public position Service Commission takes munic- that ipality, in supplying private corporations water to be- yond its capacity private acts in corporation, of a and as corporation meaning such is water within the In act. powers capacity.
exercise of municipality its is said act a dual to hand, sovereign governmental On the one acts in capacity, it its it may account; other, acting not be called to on while with- proprietary municipal may capacity, its it be as a said to act private such, enterprise responsible as even therefore becomes though [Riley v. In- benefit. emoluments redound dependence, 671, Thus, operating a 258 Mo. 167 S. W. while 1022.] acting supplying water, it in its waterworks and is clear States, S. proprietary 199 U. capacity. Carolina v. United [South proprietary question, however, does not relate 437.] Public municipality, jurisdiction capacity but rather to the secure a cerifícate of compel municipality Service Commission limits. before upon position, city Kirkwood, sustain relies II. The Commission, 270 v. in State ex rel. Public Service rule enunciated Service 442, 872, that the Public 198 S. W. to the effect Mo. c. powers are can exercise Commission implication or inference it, whicli not be extended upon should just execu- necessary and reasonable for their beyond what be act fails corollary rule, contends As a tion. resort municipality certificate. said secure .A question. Subdivisions necessary to determine the becomes statutes 10411, read: *6 568 “3. The term ‘corporation,’ when used in this.chapter, includes
a corporation, company, joint association and stock association or company.
“4. The ‘person,’ term when chapter, used this includes an in- dividual, copartnership.- and a firm or
“16. ‘municipality,’ The term when used in this chapter, includes a city, village or town.
“21. corporation,’ 'The-term ‘water chapter, when used in this every joint includes corporation, company, association, company stock association, or partnership person, lessees, their trustees or re- appointed ceivers any whatsoever, operating, court owning, con- trolling managing any plant property, or supply, or dam or water canal, power station, distributing or selling for distribution, n selling supplying gain water.” for apprised by corporation,
We are a Section that water relative water, per only entity required is -the the statute to secure beginning mission and commission before construc -system. corpora Resorting tion of a water a to the definition of water determining statute, purpose as tion for defined corporation, may entities a we are unable which constitute water A municipality find a defini included therein. reference the above defined, compels Assembly tions the conclusion that the General char corporation, municipality person a as a acterized and classified a Assembly entities, it is that the General intended distinct evident corporation only. apply That this is true Section by a 10479 and of Sections 10478. is demonstrated review speak gas specifically of cor preceding, 10480. which immediately corporation, poration, a munic corporation, an a water electric ipality, subdivisions separately defined in the various which is each of compels the con comparison A of said sections 10411. Section Assembly know General that, enacting Section clusion ingly municipality provisions. exempted from its purposely defining a 10411, subdivision It Section is evident that terms, municipality within not include does corporation, corporation” those are term “water within the the entities included per corporation or of a definition within the entities characterized dealing Assembly, 10480 the General Tn 10479 and son. Sections provi stay rates and increased power of the commission with tlie respective and electric meters inspection gas, 'water dingfor the corporation. ly. distinguishes municipality and a between entity a certifi obtain must designating 10481. in only, name entities necessity, three mentions cate corporation corpora ly. corporation, and a gas electrical an can Commission Service Reverting Public rule tion. evi it is upon it. expressly powers are exercise dent that Section 10481 not be extended to include a municipality limits. We are of the the Public Service Commission Act neither nor im pliedly empowers authorizes or commission to munic ipality to obtain a certificate of convenience and private corporations its limits. Notwith *7 standing 7, subjects subdivision a municipality sup plying' supervision limits to the of the com supervision rates, mission as to service and such extended, is not to be implication view of Section inference, to include requirement necessity, of a certificate of convenience and upon is not commission. Consequently, is reversed the cause remanded to the Circuit St. with directions Court to dis- plaintiff’s Hig'bee Ilenwood, GG., miss bill. concur.
PER foregoing opinion Davis, C., adopted is- CURIAM—The judges All of concur. as the of the court. King, Appellant, v. Sam N. W. and W. L. Ca Hayes, Heim
Jim (2d) 1062. ntrell. 4 S. W. Two,
Division March