Taylor v. DimmittTaylor v. Dimmitt
- Reporters:
- , , ,
- Before:
- Bohling, Cooley, Westhues (per curiam)
(1) Such action on the part of the city is in contravention of certain provisions of the Constitution of the State of Missouri, to-wit:
(2) The construction of the proposed electric transmission line is not authorized by any legislative enactment of the General Assembly of the State of Missouri.
The appellant denied the allegations of respondent‘s petition, and, at the close of the evidence, requested the court to give declarations of law to the effect that the action of the General Assembly in authorizing cities to sell their surplus electric energy and to that end to erect and maintain electric transmission lines for sale and delivery thereof outside of their corporate boundaries was not violative of
Our jurisdiction rests upon the constitutional issues involved. Having jurisdiction, this court will determine the whole case, irrespective of the issue upon which the case may turn. [Skinner v. Railroad, 254 Mo. l. c. 230, 162 S. W. 237; State ex inf. v. Heffernan, 243 Mo. l. c. 449, 148 S. W. 90; State v. Chandler, 132 Mo. l. c. 164, 33 S. W. 797; State ex rel. v. Francis, 95 Mo. l. c. 48, 8 S. W. 1.]
Appellants base their position upon
“The city council of any city . . . in this state shall have power . . . to erect, purchase, acquire, maintain and operate . . . power plants, electric light plants, . . . and to maintain and operate such plants and to suply the inhabitants of such cities . . . with . . . lights . . . and power therefrom.”
This section is in accord with the primary objects to be accomplished by a municipal corporation; that is, to promote the welfare and public interest of its inhabitants, and not the promotion of the interests of those residing outside its corporate boundaries.
The authority of Missouri cities to engage in the electric utility business was thus limited until 1911. In 1911, now
“AN ACT to amend article twenty-three, chapter eighty-four, Revised Statutes of Missouri, 1909, entitled ‘Waterworks, light and power plants,’ by adding thereto three new sections to be known as sections 9904a, 9904b, 9904c, authorizing cities owning light plants to supply other cities, persons and corporations with electric current; authorizing cities to procure electric current from other such cities; and authorizing cities to construct lines for conveying said current outside the limits of said cities.”
“Sec. 7642.—Any city in this state, which owns and operates any electric light or power plant, may, and is hereby authorized and empowered to supply electric current from its light or power plant to other municipal corporations for their use and the use of their inhabitants, and also to persons and private corporations for use beyond the corporate limits of such city, and to enter into contracts therefor for such time and upon such terms and under such rules and regulations as may be agreed upon by the contracting parties.”
“Sec. 7643.—Any city, town or village in this state, having authority to maintain and operate an electric light and power plant, may procure electric current for that purpose from any other city, owning and operating such plant, and to that end may enter into a contract therefor with such city having such plant.”
“Sec. 7644.—Any city, town or village, which any city of this state, having an electric light or power plant, may agree to supply with electric current under the provisions of Sections 7642 and 7643, is hereby authorized and empowered to conduct said current from the city, agreeing to supply the same, and for that purpose to erect poles, piers, abutments, wires and other fixtures along, across or under any of the public roads, streets and water in such a manner as not to incommode or endanger the public in the use of said public roads, streets and waters, and to put in and maintain and operate all apparatus and devices necessary for and in conducting said current from the city agreeing to supply the same into its own limits in, upon, over and through any territory of this state outside, as well as within, the limits of said city, town or village.”
The issue here does not involve the supply of electricity for the lighting of the streets of a city (an essential municipal, if not governmental, function) or the supply of electricity to inhabitants of the city (essentially a municipal function), but the right of a city to erect an electric transmission line to supply electric service to nonresident consumers. Even as to governmental functions, Missouri cities have or can exercise only such powers as are conferred by express or implied provisions of law; their charters being a grant and not a limitation of power, subject to strict construction, with doubtful powers resolved against the city. “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: (1) Those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.” [St. Louis v. Kaime, 180 Mo. l. c. 322 (quoting 1 Dillon, Municipal Corp. (4 Ed.), p. 145); State v. Butler, 178 Mo. 272, 77 S. W. 560; St. Louis v. Dreisoerner, 243 Mo. 217, 147 S. W. 198; St. Louis v. King, 226 Mo. 334, 126 S. W. 495; Maryville v. Farmers’ Trust Co., 226 Mo. App. 642, 45 S. W. (2d) 103.]
Counsel for appellants and respondents, in their respective briefs, concede that cities in owning, operating and maintaining electric utilities act in their proprietary, or business, as distinguished from governmental capacity. In rendering electric service to consumers outside their corporate boundaries they perform no municipal function, but depart from the primary objects for which they have existence, and enter a field of private business. Authority for such action, we think, should clearly appear. In Kennedy v. Nevada, 222 Mo. App. l. c. 467, 281 S. W. l. c. 60, speaking of the authority of a city to maintain a tourist camp within its boundaries, the court said: “Of course, a municipality has no implied power to engage
We have examined the authorities cited by appellants on this issue. Some few of the cases hold that general authority in cities to supply utility service (without more) carries the implied authority on the part of the city to construct and maintain the necessary extensions of the distribution system to dispose of any surplus of the commodity. An examination of the statutory provisions involved in such cases discloses, however, that they are not sufficiently analogous to the applicable Missouri statutory provisions to be of controlling weight on this issue. Many of the cases involve express statutory provisions vesting cities with power “within and without the corporate boundaries;” “to do all things in relation thereto (the subject matter) as natural persons;” the right to exercise the power within a distance of “ten miles from the corporate limits of the city;” “without their limits” and “beyond the limits thereof;” the right to supply the service to “ordinary municipal uses” and to other purposes; “to supply dwellers in other municipalities” and extend their distribution system into such localities. Among such cases are: Muir v. Murray City, 55 Utah, 368, 186 Pac. 433 (
Recurring to the Act of 1911. Through now
Although a conflict of authority exists (narrowed when consideration is given the varying statutory provisions), the majority rule accords with the above conclusion. The cases may be found in the annotation to Hyre v. Brown, 49 A. L. R. 1230, l. c. 1238, 102 W. Va. 505, 135 S. W. 656. See, for instance: Spear v. Bremerton, 90 Wash. 507, 511, 156 Pac. 825; Sweetwater v. Hamner (Tex. Civ. App.), 259 S. W. 191, 195; Richards v. Portland, 121 Ore. 340, 255 Pac. 326; Dyer v. Newport, supra.
The city of Shelbina being without statutory authority to construct, maintain and operate an electric transmission line for the purpose of furnishing service to consumers outside its corporate boundaries, it is unnecessary to discuss the constitutional issues presented.
The judgment of the trial court is affirmed. Cooley and Westhues, CC., concur.
PER CURIAM:—The foregoing opinion by Bohling, C., is adopted as the opinion of the court. All the judges concur.