116 Kan. 70 | Kan. | 1924
The opinion of the court was delivered by
This was an action in quo warranto brought by the state on the relation of the county attorney against the Kansas Electric Power Company, questioning the authority and power of the company to exercise the privileges and rights granted in an extension ordinance passed by the commissioners of the city of Council -Grove on July 11,1922.
It was alleged and shown that on March 16, 1912, the city had granted a franchise to G. W. Harlan, his successors and assigns, to maintain an electric light plant in the city with authority to lay conduits, pipes and conductors for the transmission and distribution of electric current for lighting, heating and power within the city. That franchise which does not expire until 1932 was assigned to the Kansas Electric Power Company and it is now operating under it. It is also availing itself of the privileges of the one granted on July 11,1922, at least to the extent of issuing and selling a large amount of bonds, secured by a mortgage on its property, which mature long after the expiration of the Harlan franchise. Under the second franchise the company is authorized to operate and give service not only within the city but to supply service to persons and corporations beyond the limits of the city. It recites the provisions of the existing franchise, and also that it is the purpose and intent of the new ordinance to renew and extend the existing franchise without changing or affecting the rights, privileges and obligations which each of the parties has, except as to the extension of time and the right of the company to supply electric service to persons and corporations beyond the limits of the city. The extension franchise was granted under the authority of a statute enacted in 1921 which among other things provides:
“That such franchise shall not be granted until notice of the proposition to grant the same has been given for twenty days by publication in some newspaper in general circulation in such city, and if within said twenty days 10 per cent of the legal electors petition such city authorities to submit the same to a vote of the electors of the city, such city authorities shall submit such franchise proposition to a vote of the people before such franchise be granted and be governed by result of such vote.” (R. S. 12-824.)
Apart from the insufficiency of .the evidence there is the finding and decision of the city commission that ten per cent of the legal electors had not signed the petition. To that commission the legislature has committed the authority to ascertain and determine the sufficiency of the petitions and whether those signing them constituted ten per cent of the legal electors of the city. This power and discretion is to be exercised by this tribunal unhampered by judicial interference unless it is shown that the act is without jurisdiction or there was fraud or some misconduct which is the substantial equivalent of fraud. Nothing approaching fraud in its action was shown or attempted to be shown. In the absence of evidence to the contrary it must be presumed that the commission acted honestly and in accordance with law, and its determination on the question submitted to it is binding alike on all parties and conclusive upon the courts. (Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247; Williams v. City of Topeka, 85 Kan. 857, 118 Pac. 866; The State, ex rel. v. Holcomb, 95 Kan. 660, 149 Pac. 684; Stevenson v. Shawnee County, 98 Kan. 671, 159 Pac. 5.)
There is a further contention by the plaintiff that the act under which the franchise was granted has no application to cities acting under a commission form of government. It is said that the act providing for that form of government contains its own provisions relating to the granting of franchises, and since the later act, 1921, did not re-enact the provisions of the earlier one as to granting franchises, it should be interpreted'as only applying to cities not under the commission form of government. The act of 1921 (R. S. 12-824) expressly authorizes the granting of franchises by all incorporated cities of the state without regard to form of government under which they are operating. It provides that such cities may by ordinance grant a franchise to any corporation operating a system for the transmission of electric current between two or more incorporated cities or to one proposing to build such lines. The act is later in time than the acts referred to by plaintiff and may be said to be supplementary to them. If there be any conflict between them the later act will of course control. The city authorities with power to enact ordinances, whatever their designation, is given power to grant franchises upon compliance with the conditions