189 Mo. 83 | Mo. | 1905
Lead Opinion
-This is an original proceeding in this court to obtain a writ of mandamus.
Prior to the adoption of what is called the “.Freeholders ’ Charter, ’ ’ which was in 1889, Kansas City had a special charter, first granted in 1853, and afterwards several times amended, but there was nothing in it authorizing the city to regulate telephone companies or fix the rates to be charged for telephone service.
Section 16, article 9, of our Constitution adopted in 1875 ordains: “Any city having a population of more than one hundred thousand inhabitants- may form a charter for its own government, consistent with and subject to the Constitution and laws of this State,” etc.
In 1887 (Laws 1887, p. 42) the General Assembly passed an act, which in the briefs is called an “Enabling Act,” the object of which was to provide the means for cities to avail themselves of that constitu
“Sec. 50. Such city shall have exclusive control over its public highways, streets, avenues, alleys and public places, and shall have exclusive power, by ordinance, to vacate or abandon any public highway, street, avenue, alley or public place, or part thereof, any law of this State to the contrary notwithstanding.
“Sec. 51. It shall be lawful for any such city in such charter or by amendment thereof, to provide for regulating and controlling the exercise by any person or corporation of any public franchise or privilege in any of the streets or public places of such city, whether such franchises or privileges have been granted by said city or by or under the State of Missouri, or any other authority. ’ ’
Those are now sections 6408 and 6409, Revised Statutes 1899.
Under that act, and by virtue of section 16, article 9, of our Constitution, above quoted, Kansas City adopted its present charter in 1889, and in that charter the two sections of the Enabling Act above quoted are literally adopted. The respondent telephone company had already been planted in the city and doing business there several years before the charter was adopted.
In section 1, article 3, of the charter, it is provided that the city shall have power by ordinance: “ . . . to regulate the prices to be charged by telephone, telegraph, gas and electric light companies, and to compel them and all persons and corporations using, controling or managing electric wires for any purpose whatever to put and keep their wires under ground and to regulate the manner of doing the same. ’ ’
There was also in the charter what is called the “General Welfare” clause, which authorized the city to pass any ordinance that “may be expedient in maintaining the peace, order, good government, health and welfare of the city, its trade, commerce and manufac
If the city had power to enact the ordinance fixing the maximum rate for telephone service in question it it to he found in that clause of the Constitution, those sections of the statute and those charter provisions above quoted. In so far as the ordinance depends upon the charter there 'is no doubt of the authority; the charter expressly authorizes it. But whether the provision of the charter is backed by lawful authority, is the serious question in the ease.
It is not questioned that the State has power to keep telephone corporations in this State within reasonable bounds in respect of charges for their service, nor can it be questioned that the State may delegate. that power to be exercised by a municipal corporation within its limits, hut the question is, has the State delegated that authority to this city?
Until the adoption of our Constitution in 1875 all cities in the State derived their charter powers from the General Assembly, and therefore whatever was contained in a city charter had the full force of a legislative enactment. But under that Constitution cities of certain descriptions were authorized to frame their own charters. A charter framed under that clause of the Constitution within the limits therein contemplated has the force and effect equal to one granted by an act of the Legislature.
But it is not every power that may be essayed to be conferred on the city by such a charter that is of the same force and effect as if it were conferred by an act of the General Assembly, because the Constitution does not confer on the city the right, in framing its charter, to assume all the powers that the State may exercise within the city limits, but only powers incident to its municipality, yet the Legislature may, if it should see fit, confer on the city powers not necessary or incident to the city government. There are
The regulation of prices to be charged by a corporation intrusted with a franchise of a public utility character is within the sovereign power of the State that grants the franchise or that suffers it to be exercised within its borders, and that power may be with wisdom and propriety conferred on a municipal corporation, but it is not a power appertaining to the government of the city and does not follow as an incident to a grant of power to frame a charter for a city government. The authority of Kansas City to insert in its
Is it conferred by what is called the “Enabling Act” of 1887?
• The purpose of that act was to enable cities of the class named to avail themselves of that constitutional provision. It is entitled, “An act providing that any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, and -regulating the same.” There is nothing, therefore, in the title that indicates an intention to confer on such cities any power except that conferred by the Constitution. 1'n its grant of power it so closely copies the language of the Constitution that its meaning to keep within the lines there drawn is obvious. There is nothing in the whole act of 54 sections that purports to confer on the city any powers except those appertaining essentially to. the government of the city, unless as is contended by the relator sections 50 and 51 above quoted confer such powers.
Section 50 confers on the city “exclusive control over its. public highways, streets, avenues, alleys and public places,” etc., and section 51 authorizes the city to provide in its charter “for regulating and controlling the exercise by any person or corporation of any public franchise-or privilege in any of the streets or public places of such city, whether such franchises or privileges have geen granted by said city, or by or under the State of Missouri, or any other authority.”
The exclusive control of its streets as granted in section 50 is an attribute of municipal authority and could have been adopted in the charter under the authority of the Constitution without the express sanction of the General Assembly. The word ‘ ‘ exclusive, ’ ’ however, in that connection is not to be given its unlimited meaning, but must be understood as subject to the control of the State whenever the State chooses
In adopting these two sections 50 and 51, of the so-called Enabling Act, the Legislature had in view the necessity of power in the city,to control its streets and other public places, and the power in the State to grant franchises to be exercised by the grantee in the streets and other public places of the city, and it was not difficult to foresee that a clash might occur between the city in its exclusive control of the street and the private corporation in the exercise of the franchise granted by the State. Therefore, after granting to the city, as it did in section 50, control of its streets, the thought occurred to the lawmakers that there were private corporations organized and to be organized under the laws of this State with express authority to use the streets and other public highways in the exercise of their franchises, and in order to prevent any clash that might occur between the city in its control of the streets and the private corporation in its use of the same, section 51 was added which gave the city power to regulate and control the private corporation in its use of the street. Under that power the city may regulate the planting of poles, wires, etc., or require the wires to
The peremptory writ is denied.
Concurrence Opinion
I concur in the result announced in this case. But as I do not fully agree with the position or contention of counsel on either side of the case, or with all that is said in the opinion rendered herein, I deem it proper to briefly express my reasons for so doing.
It is not my purpose, at this time, to discuss, at length, the many and important legal and constitutional questions that have been so ably argued by counsel in this case. The argument has taken a very wide range, and ha,s covered many points, concerning which this court has not, heretofore, been able to agree or to formulate any fixed, general rules which could solve all the cases that have arisen or that may hereafter arise.
In brief, the relator contends that Kansas City has express power, under her charter, to regulate and fix the prices that may be charged for telephone service within the corporate limits of the city; that if such is
It is not necessary, herein, to state the various contentions of the defendant.
I think that it is extremely unfortunate that this court ever attempted to solve the problem by drawing a distinction between matters of mere local concern and matters of State concern, and to say that as to matters of mere local concern the municipality has power to legislate. To my mind no fixed, certain, general or intelligible rule can be formulated upon such a distinction, which will answer or solve the questions that will arise. There are many matters which are, in a sense, local, but in which the State, at large, has also a direct interest. So that the attempted distinction would necessarily fail when applied to such matters. I think experience has now conclusively shown the necessity for this court to adopt some rule of construction which will solve all such questions. I am firmly convinced that there is but one safe ground upon which the courts can rest the rule, and that is to hold, first, that it is within the power of the General Assembly to delegate to a municipality a portion of the State’s police power, under which it will be competent for the city to enact police regulations, that is, such regulations as affect the
I am thoroughly persuaded that it never was within the contemplation of the framers of our system of government, or of our Constitution, that any city, whether organized under the general laws of this State, or under the provisions of the Constitution which allow cities to fíame their own charter, to confer upon cities anything more than a police power, and a strictly municipal power. And that the power to enact all laws of civil conduct, and to prescribe all civil remedies among citizens, in short, to enact laws as distinguished from municipal regulations, is expressly reserved to the Legislature of this State, and cannot be delegated by it.
In my judgment the whole subject would be simplified, and a plain rule of interpretation afforded, by adopting such a distinction between the powers of a city and the powers of the General Assembly of the State.
I, therefore, have reached the conclusion that it is no part of a municipal power to regulate the prices
Upon further reflection I have come to the conclusion that the true construction of the provisions of the article quoted is, that the defendant may fix such reasonable charges as it sees fit, subject, however, to the right of the General Assembly, by general law, to fix such reasonable charges, and that the power of the court is limited to determining, in a proper case, whether the charges fixed, either by the company, or by the Legislature, are reasonable charges, and that such question cannot be decided in a proceeding by mandamus. I believe that the statute does not confer upon the defendant an absolute right to determine what shall be a reasonable charge, and I also believe that even the Legislature cannot arbitrarily and oppressively fix a charge that will amount to a deprivation of the privileges and franchises conferred by law upon the defendant company. The Gen
I shall not attempt, now, to indicate in what man-ner or form of proceeding the right of the court to construe or determine the reasonableness of the charge, whether established by the defendant or by legislative act, can or must arise. . I shall content myself, now, with saying that I don’t think the question can be properly raised in a proceeding by mandamus.
The foregoing sufficiently indicates my reason for concurring in the result, only, in this case.
Rehearing
on rehearing.
On a rehearing, the foregoing opinion by Valliant, J., is adopted as the opinion of the Court in Banc.
SEPARATE OPINION.