National Water Works Co. v. City of Kansas

I. Hall, J. There are only two questions in this case. The questions are: first, did the defendant have the power under her charter to part with the right, by contract with plaintiff to change the grade of those of her streets, upon which, the grade once having been fixed, > the plaintiff should lay down water pipes in pursuance of the contract ? Second, did the defendant by the contract in this case part with such right to change the grade of said street % The defendant had the power under her charter — 242 — “to alter, open, widen, extend, straighten, establish, regulate grades, re-grade, clean, or otherwise improve, the streets” in her limits. Under this power, granted by the legislature in 1867, the defendant unquestionably had the power and right to change the grade of any street, the grade of which had been previously fixed; and this, too, without rendering herself liable for such change prior to the adoption of the present constitution, in 1875. Tate v. Railroad Co., 64 Mo. 158; Schatter’s v. The City of Kansas, 53 Mo. 164; Hoffman v. The City of St. Louis, 15 Mo. 653. This power was a. legislative power, given for the purpose of promoting the public safety and convenience. It could be exercised only in the manner prescribed in the charter. Thompson v. Boonvile, 61 Mo. 282; Ruggles et al. v. Collier et al., 43 Mo. 355. The grant of powers to a municipal corporation must be strictly construed. Cooley’s Constitutional Limitations (star paging) 195. • A legislative power granted to a municipal corporation cannot be parted with unless such was tfye clear intent of the legislature, for it will never be presumed that the legislature, having granted the power, has at the same time authorized a surrender of it. The authority to surrender the power must appear from “the clear letter of the law.” Kreigh et al. v. City of Chicago, 86 Ill. 410. From the mere .grant of the power the authority to surrender it cannot be inferred. Thomson v. Boonvile, supra; Ruggles et al. v. Collier et al., supra. The plaintiff argues that by an act of the legislature, in 1873 (sess. acts, 1873, p. 286), the defendant was authorized to contract with any person or corporation to erect and operate water works, on such terms and conditions as might be agreed upon, and that by reason of such “act,” the defendant was empowered to surrender the right and power to change the grade of the streets under the circumstances supposed in the question. In other words, that the surrender of such power to change the grade of the streets, upon which plaintiff’s water pipes should belaid, might, under said “act,” be made one — 243 — of the conditions in the contract authorized thereby. The power of the legislature over the streets of the defendant was supreme. R. R. Co. v. City of St. Louis et at., 66 Mo. 228, 256. The legislature had the power to authorize the defendant to surrender the power to change the grade of the streets. The only question is, as to whether the legislature granted such authority. The argument of plaintiff is based upon the power granted to defendant to contract upon such conditions as might be agreed upon. Applying the rule of strict construction to this grant of power, we are clearly of the opinion that by “such conditions as might be agreed upon” were intended the conditions to which the defendant, under her charter, might agree. We hold that by such grant the legislature did not intend to authorize the defendant to surrender any of the legislative powers granted to her by her charter. If such was the intention of the legislature, it should have been clearly expressed. If, under the “act,” we should hold that the legislature did intend to authorize the defendant to part with her legislative power to change the grade of her streets, we could not confine such intention to that legislative power alone, but we should have to extend it to all legislative power, therefore, granted by the legislature to thé defendant,' which the legislature, under the constitution, had the power to authorize the defendant to release and part with. We should have to hold that the legislature intended to authorize the defendant, if she saw fit to so stipulate in her contract, to permit the plaintiff to so lay down the pipes on her streets as to destroy them as public streets. But this intention was not clearly expressed in the “act,” and could not, therefore, be maintained. Lackland n. It. It. Co., 31 Mo. 185. We should have to hold, in effect, that, had the legislature, under the constitution of 1865, had the power to authorize the defendant to exempt the plaintiff’s property from taxation, by the “act,” the legislature did intend to authorize the defendant to so exempt the plaintiff’s property from tax ation. In short, as said before, we should have to hold — 244 — that, by the provision authorizing the'Jdefendaut to contract for the erection and operation of water works, on such conditions as might be agreed upon, the legislature intended to grant to the defendant, as to that contract) all- those powers which, it has been universally held, the legislature might grant, to be sure, to a municipal corporation, but only by clear and unmistakable terms. This we cannot do. This we could not do under the .most liberal construction of the vact.” It may be, that, as contended by the plaintiff, the cases of Louisville R. R. Co. v. Louisville (8 Bush, 4, 20); In re Deering (93 N. Y. 361), and Presbyterian Church v. Mayor (5 Conn. 538), are not exactly in point upon this question, but the reasoning of those cases strongly supports our conclusion. II. Admitting that we are wrong as to the conclusion arrived at upon the first question, and that the defendant had the authority to part with her power to re-grade the street, did she part with such power by the contract in evidence ? In pursuance of the “act” of 1873, the city, by ordinance number 10524, as shown in the record, entered into a contract with the plaintiff to establish, construct, maintain and operate water works, in or adjacent to said city, and for that purpose the right was given to lay, keep and maintain pipes below the surface of the streets for conducting and distributing water as aforesaid. By this contract these works were required to be of such quality and to accomplish such results as therein specifically -set out. Section six, of said ordinance number 10524, is as follows: “The City of Kansas, by its authorized agent or agents, shall have a right to designate on what streets, avenues, lanes, or alleys, water pipes shall be laid and fire hydrants placed, and the places at which the said hydrants shall be located, but said company shall not be — 245 — required to lay pipes on any street, avenue, lane or alley, on which the grade shall not have been established, and the places for the location of hydrants shall be designated by the city as aforesaid, at such time and in such manner as not to impede or interfere with the laying of pipes by the company.” Upon this question the plaintiff bases its position on •section six above. Its argument is that it was “contemplated that when once put down they (‘the pipes’) should be permanent.” In construing the ordinance “whatever is doubtful is against the corporation.” Lackland v. R. R. Co., supra. We think that the evident intention of the parties to the contract was that, although the defendant was thereby authorized to designate the streets, etc., upon which the pipes should be laid, still the defendant should not require the plaintiff to lay the pipes upon any street, etc., until the grade thereof should first be established. It was not attempted by the contract to impair the right of the defendant to change the grade of the streets. This right was not touched by the contract. The defendant having the right to designate the streets, etc., upon which the pipes should be laid, that right was limited. Had anything, other than a limitation upon the power of the defendant to thus designate the streets, ■etc., been in the contemplation of the parties, it should have been clearly expressed in the contract. We cannot see how the limitation of the power, given by the contract to the defendant to designate the streets, etc., can be construed into a release of the power, not conferred by the contract, but granted by the charter of 1867, to defendant to change the grade of the streets. As said by the plaintiff its right to recover in this case is based upon the contract, that is, the ordinance, of.1873. Therefore, the constitutional inhibition (in the constitution of 1875), against taking or damaging private property for public use, without just compensation has no bearing upon this case. The plaintiff, under its con — 246 — tract with defendant, pnt down the water pipe on the street in question, subject to the right of the defendant to change -the grade of the street at any time that the public convenience and safety might require ; and the plaintiff cannot be heard now to complain that its property, the pipe, has been damaged for public use, by reason of a change of the grade of the street thus made by the defendant. Judgment affirmed, Philips, P. J., Conors Ellison, J., disse’ ■'