State ex rel. Garner v. Missouri & Kansas Telephone Co.

YALLIANT, J. -This is an original proceeding in this court to obtain a writ of mandamus. — 97 — Respondent is.a telephone company, incorporated nnder the laws of this State, engaged in furnishing telephone service in Kansas City and adjacent territory. It was incorporated in 1882 nnder article 5, chapter 21, Revised Statutes 1879 (now art. 6, chapter 12, R. S. 1899), and has ever since the date of its incorporation owned and operated a system of telephones in Kansas City . In September, 1902, Kansas. City adopted an ordinance fixing the maximum rate to be charged by telephone companies for their service in that city. The relator requested the respondent to furnish him a telephone and telephone service in his office at the maximum rate fixed by the ordinance, which he tendered, but the respondent refused to furnish it at that rate, whereupon relator instituted this suit to compel respondent to do so. Respondent in its return pleads several defenses, the one of which is of first importance is that the city had no authority to enact the ordinance. If respondent is correct in that proposition, there will be no necessity for looking into the other defenses pleaded. 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 — 98 — tional privilege and form their own charters. In that .act were the following two sections: “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 — 99 — tures, or that may he necessary and proper for carrying into effect the provisions of this charter. ’ ’ 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 — 100 — governmental powers the just exercise of which is essential to the happiness and well being of the people of a particular city, yet which are not of a character essentially appertaining to the city government. Such powers the State may reserve to to be exercised by itself, or it may delegate them to the city, but until so delegated they are reserved. The words in the Constitution, “may frame a charter for its own government,” mean may frame a charter for the government of itself as a city, including all that is necessary or incident to the government of the municipality, but not all the power that the State has for the protection of the rights and regulation of the duties of the inhabitants in the city, as between themselves. Nor does the Constitution confer unlimited power on the city to regulate by its charter all matters that are strictly local, for there are many matters local to the city, requiring governmental regulation, which are foreign to the scope of municipal government. In none of the cases that have been before this court bringing into question the charters of St. Louis and Kansas City under the Constitution of 1875, have we given to this constitutional provision any broader meaning than above indicated. [St. Louis v. Bell Tel. Co., 96 Mo. 623; State ex rel. v. Field, 99 Mo. 353; Kansas City ex rel. v. Scarritt, 127 Mo. 646; State ex rel. Subway Co. v. St. Louis, 145 Mo. 574; Kansas City v. Stegmiller, 151 Mo. 189; Young v. Kansas City, 152 Mo. 661.] 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 — 101 — charter the power to regulate the price to be charged for telephone service within the city, is not conferred by the constitutional provision above quoted. 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 — 102 — to assume control. The constitutional grant of power under which the charter is formed says that it must always he subject to the Constitution and laws of the State, which we interpret to mean that in all matters not appertaining to city government the charter is subordinate to the will of the General Assembly. The Legislature, in conferring on the city the exclusive control of its streets, meant exclusive control for the purposes of the city government, not to the exclusion of the State in other matters. The General Assembly, except as limited in the Constitution, has jurisdiction to grant franchises to be exercised in the streets of the cities and other public highways in the State and that jurisdiction has not been surrendered either to cities with charters under the Constitution or to other municipalities. 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 — 103 — be put under ground, or do any thing within reason to render the use of the street by the private corporation as little of injury to the public as may be. But the section does not confer on the city the power to regulate the prices to be charged by the telephone company for its service to the inhabitants of the city. The peremptory writ is denied. Robinson, G. J., Gantt, Burgess, and Fox, JJ., concur; Brace, J., dissents; Marshall, J., dubitante.