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In Banc. Original proceeding by the state, charters. In that act were the following on the relation of James W. Garner, for a two sections: writ of mandamus against the Missouri & "Sec. 50. Such city shall have exclusive Kansas Telephone Company. Peremptory control over its public highways, streets, ave writ denied.

nues, alleys and public places, and shall have

exclusive power, by ordinance, to vacate or R. J. Ingraham, 0. H. Dean, E. E. Yates, Garland M. Jones, and Jas. W. Garner,

abandon any public highway, street, avenue,

alley or public place, or part thereof, any for relator. Rozzelle, Vineyard & Thatcher,

law of this state to the contrary notwithJno. C. Tarsney and W. M. Williams, for re

standing. spondent.

"Sec. 51. It shall be lawful for any such

city in such charter, or by amendment therePER CURIAM. On a rehearing, the fol- of, to provide for regulating and controlling lowing opinion by VALLIANT, J., is adopted the exercise by any person or corporation of as the opinion of the court in banc. GANTT, any public franchise or privilege in any of FOX, BURGESS, and VALLIANT, JJ., con- the streets or public places of such city, cur. MARSHALL, J., concurs in the result, whether such franchises or privileges have for reasons given in his separate opinion. been granted by said city or by or under the LAMM, J., dubitante. BRACE, C. J., dis- state of Missouri or any other authority." sents.

Those are now sections 6408 and 6409,

Rev. St. 1899. VALLIANT, J. This is an original pro- Under that act, and by virtue of section ceeding in this court to obtain a writ of 16, art. 9, of our Constitution above quoted, mandamus. Respondent is a telephone com- Kansas City adopted its present charter in pany, incorporated under the laws of this 1889, and in that charter the two sections of state, engaged in furnishing telephone serv- the enabling act above quoted are literally ice in Kansas City and adjacent territory. adopted. The respondent telephone comIt was incorporated in 1882 under article 5, pany had already been planted in the city c. 21, Rev. St. 1879 (now article 6, c. 12, Rev. and doing business there several years be St. 1899), and has ever since the date of its fore the charter was adopted. In section 1, incorporation owned and operated a system art. 3, of the charter, it is provided that the of telephones in Kansas City. In Septem- | city shall have power by ordinance ber, 1902, Kansas City adopted an ordinance to regulate the prices to be charged by telefixing the maximum rate to be charged by phone, telegraph, gas and electric light comtelephone companies for their service in that panies, and to compel them and all persons city. The relator requested the respondent and corporations using, controlling or manto furnish him a telephone and telephone aging electric wires for any purpose whatservice in his office at the maximum rate ever to put and keep their wires under fixed by the ordinance, which he tendered, ground and to regulate the manner of doing but the respondent refused to furnish it at the same." There was also in the charter that rate, whereupon relator instituted this what is called the "general welfare" clause, suit to compel respondent to do so. Re- which authorized the city to pass any ordispondent in its return pleads several de- nance that “may be expedient in maintainfenses. The one which is of first impor- | ing the peace, order, good government, tance is that the city had no authority to en- health and welfare of the city, its trade, act the ordinance. If respondent is correct commerce and manufactures, or that may in that proposition, there will be no neces- be necessary and proper for carrying insity for looking into the other defenses to effect the provisions of this charter." pleaded.

the city had power to enact the ordinance Prior to the adoption of what is called the fixing the maximum rate for telephone serv“Freeholders' Charter,” which was in 1889, ice in question, it is to be found in that Kansas City had a special charter, first clause of the Constitution, those sections of granted in 1853, and afterwards several the statute, and those charter provisions times amended, but there was nothing in it above quoted. In so far as the ordinance authorizing the city to regulate telephone depends upon the charter, there is no doubt companies or fix the rates to be charged for of the authority; the charter expressly autelephone service. Section 16, art. 9, of our thorizes it. But whether the provision of Constitution adopted in 1875 ordains: “Any the charter is backed by lawful authority is city having a population of more than one the serious question in the case. hundred thousand inhabitants may frame a It is not questioned that the state bas powcharter for its own government, consistent er to keep telephone corporations in this with and subject to the Constitution and state within reasonable bounds in respect of laws of this state,” etc. In 1887 (Acts 1887, charges for their service, nor can it be quesp. 42) the General Assembly passed an act tioned that the state may delegate that powwhich in the briefs is called an "Enabling er to be exercised by a municipal corporation Act," the object of which was to provide the within its limits, but the question is, has the means for cities to avail themselves of that state delegated that authority to this city? constitutional privilege and form their own Until the adoption of our Constitution in 1875


all cties in the state derived their charter and does not follow as an incident to a grant powers from the General Assembly, and there- of power to frame a charter for a city govfore whatever was contained in a city char- ernment. The authority of Kansas City to ter had the full force of a legislative enact- insert in its charter the power to regulate beat But under that Constitution cities the price to be charged for telephone service of certain descriptions were authorized to within the city is not conferred by the constiframe their own charters. A charter framed tutional provision above quoted. Is it conOder that clause of the Constitution, with. ferred by what is called the "Enabling Act" in the limits therein contemplated, has a of 1887? The purpose of that act was to entorce and effect equal to one granted by an able cities of the class named to avail themact of the Legislature. But it is not every selves of that constitutional provision. It is power that may be essayed to be conferred on entitled "An act providing that any city tbe aty by such a charter that is of the same having a population of more than one hunforce and effect as if it were conferred by an dred thousand inhabitants may frame a charact of the General Assembly, because the ter for its own government and regulating Constitution does not confer on the city the the same.” There is nothing, therefore, in right to assume all the powers that the state the title that indicates an intention to confer may exercise within the city limits, but only on such cities any power except that conpowers incident to its municipality, yet the ferred by the Constitution. In its grant of Legislature may, if it should see fit, confer on power it so closely copies the language of the the city powers not necessary or incident to Constitution that its meaning to keep within the city government. There are govern- the lines there drawn is obvious. There is mental powers, the just exercise of which is nothing in the whole act of 54 sections that Asertial to the happiness and well-being of purports to confer on the city any powers extbe people of a particular city, yet which are cept those appertaining essentially to the pot of a character essentially appertaining to government of the city, unless, as is conthe city government. Such powers the state tended by the relator, sections 50 and 51 may reserve to be exercised by itself, or it above quoted confer such powers. Section 50 Lay delegate them to the city, but until so confers on the city "exclusive control over its delegated they are reserved. The words in public highways, streets, avenues, alleys and the Constitution, “may frame a charter for public places,” etc., and section 51 authorizes its own government,” mean, may frame a the city to provide in its charter “for regulatcharter for the government of itself as a city, ing and controlling the exercise by any perwhich includes all that is necessary or inci- son or corporation of any public franchise or dent to the government of the municipality, | privilege in any of the streets or public places but not all the power that the state has for of such city, whether such franchises or privthe protection of the rights and regulation of ileges have been granted by said city, or by the duties of the inhabitants in the city, as or under the state of Missouri, or any other between themselves. Nor does the Constitu- authority.” The exclusive control of its ton confer unlimited power on the city to streets as granted in section 50 is an attriregulate by its charter all matters that are bute of municipal authority, and could have strictly local, for there are many matters 10- been adopted in the charter, under the aucal to the city, requiring governmental pro- thority of the Constitution, without the extection, which are foreign to the scope of press sanction of the General Assembly. The municipal government. In none of the cases word "exclusive," however, in that connecthat bave been before this court bringing into tion, is not to be given its unlimited meaning, question the charters of St. Louis and Kan- but must be understood as subject to the sas City under the Constitution of 1875 have control of the state whenever the state choosTe given to this constitutional provision any es to assume control. The constitutional broader meaning than above indicated. St. grant of power under which the charter is Louis v. Bell Tel. Co., 96 Mo. 623, 10 S. W. formed says that it must always be subject 197, 2 L. R. A. 278, 9 Am. St. Rep. 370; to the Constitution and laws of the state, State v. Field, 99 Mo. 353, 12 S. W. 802; which we interpret to mean that in all matKansas City v. Scarritt, 127 Mo. 646, 29 S. ters not appertaining to city government the W. 845, 30 S. W. 111; State ex rel. Subway charter is subordinate to the will of the Co. 7. St. Louis, 145 Mo. 574, 46 S. W. 981, General Assembly. The Legislature, in con42 LR. A. 113; Kansas City v. Stegmiller, ferring on the city the exclusive control of 151 Mo. 189, 52 S. W. 723; Young v. Kansas its streets, meant exclusive control for the City, 152 Mo. 662, 54 S. W. 535.

purposes of the city government, not to the Tbe regulation of prices to be charged by exclusion of the state in other matters. The a corporation intrusted with a franchise of a General Assembly, except as limited in the pablie' utility character is within the sov- Constitution, has jurisdictio to grant fransteigo power of the state that grants the chises to be exercised in the streets of the franchise or that suffers it to be exercised cities and other public highways in the state, within its borders, and that power may be and that jurisdiction has not been surrendered with wisdom and propriety conferred on a either to cities with charters under the ConIunicipal corporation; but it is not a power stitution or to other municipalities. apertaining to the government of the city, In adopting these two sections, 50 and 51, of the so-called "Enabling Act," the Legis- matters which are not properly local, but as lature had in view the necessity of power in to which the state has a concern, Kansas the city to control its streets and other public City has the power, under its charter, to places, and the power in the state to grant adopt regulations or enact laws that will be franchises to be exercised by the grantee in legal and binding as to all subjects upon the streets and other public places of the city, which the General Assembly of the state has and it was not difficult to foresee that a not spoken, but that thereafter the General clash might occur between the city in its ex- Assembly has power, by general law, to clusive control of the street, and the private change such regulations. It is not necessary corporation in the exercise of the franchise herein to state the various contentions of granted by the state. Therefore, after grant- the defendant. ing to the city, as it did in section 50, control I think that it is extremely unfortunate of its streets, the thought occurred to the that this court ever attempted to solve the lawmakers that there were private corpora- problem by drawing a distinction between tions organized and to be organized under the matters of mere local concern and matters laws of this state with express authority to of state concern, and to say that, as to use the streets and other public highways in matters of mere local concern, the municthe exercise of their franchises, and, in or- ipality has power to legislate. To my mind, der to prevent any clash that might occur be- no fixed, certain, general, or intelligible rule tween the city in its control of the streets can be formulated upon such a distinction and the private corporation in its use of the which will answer or solve the questions same, section 51 was added, which gave the that will arise. There are many matters city power to regulate and control the private which are in a sense local, but in which the corporation in its use of the street.


state at large has also a direct interest. So the power the city may regulate the plant- that the attempted distinction would necesing of poles, wires, etc., or require the wires sarily fail when applied to such matters. I to be put under ground, or do anything with- think experience has now conclusively shown in reason to render the use of the street by the necessity for this court to adopt ome the private corporation as little of injury rule of construction which will solve all to the public as may be. But the section does such questions. I am firmly convinced that not confer on the city the power to regulate there is but one safe ground upon which the the prices to be charged by the telephone com- courts can rest the rule, and that is to hold: pany for its service to the inhabitants of the First, that it is within the power of the city.

General Assembly to delegate to a municipalThe peremptory writ is denied.

ity a portion of the state's police power,

under which it will be competent for the MARSHALL, J. I concur in the result an. city to enact police regulations—that is, nounced in this case. But as I do not fully such regulations as affect the citizens in agree with the sition or contention of

respect to their relations to the mu cipality, counsel on either side of the case, or with all and in their conduct towards each otherthat is said in the opinion rendered herein, but that such police regulations can only be I deem it proper to briefly express my rea- enforced by fine or imprisonment; second, sons for so doing.

that it is competent for the state to confer It is not my purpose at this time to dis- upon a municipality the right to enact reg. cuss at length the many and important legal ulations, laws, or ordinances that are purely and constitutional questions that have been municipal—that is, such as regulate the gov. so ably argued by counsel in this case. The ernmental or business affairs of the city, and argument has taken a very wide range, and of the citizens in their conduct towards the has covered many points concerning which city, or such as regulate the conduct of mu. this court has not heretofore been able to nicipal officers, and th like; third, that, agree or to formulate any fixed, general under the Constitution of this state and the rules which could solve all the cases that decisions of this court, it is not competent have arisen or that may hereafter arise. In for the Legislature to delegate to a municbrief, the relator contends that Kansas City | ipality any portion of the legislative power has express power, under her charter, to of the state, by which I mean the power to regulate and fix the prices that may be make laws, to confer civil rights, to create charged for telephone service within the cor- civil liabilities, to provide civil remedies, to porate limits of the city; that if such is not punish by civil action any acts of commisthe case, then the enabling act has conferred

sion or omission of duty, or to create any that power upon the city; that, under sec- civil right of action between citizens inter tion 16 of article 9 of the Constitution, Kan- sese. I am thoroughly persuaded that it sas City was authorized to adopt a charter never was within the contemplation of the which would regulate all matters of mere framers of our system of government, or of local concern as distinguished from matters our Constitution, that any city, whether orof state concern, and that the General As- ganized under the general laws of this state, sembly of the state has no power, even by or under the provisions of the Constitution a general law, to change such local regula- which allow cities to frame their own char tions so adopted by the city; that as to even ter, to confer upon cities anything more than e police power and a strictly municipal power of the Legislature to fix the charges power, and that the power to enact all laws it may make at a sum which would be de

eivül conduct, and to prescribe all civil structive to its business. The power to regremedies among citizens, in short, to enact ulate does not mean the power to destroy. laws as distinguished from municipal reg- Under the guise of regulation, it is incomulations, is expressly reserved to the Legis- petent for the Legislature to destroy franlature of this state, and cannot be delegated chises which are authorized by law, or to so by it. In my judgment, the whole subject lay down the manner of transacting a legityould be simplified, and a plain rule of in- imate business as to make it impossible to terpretation afforded, by adopting such a conduct such business except at a loss. distinction between the powers of a city and I shall not attempt now to indicate in the powers of the General Assembly of the what manner or form of proceeding the right state. I, therefore, have reached the con- of the court to construe or determine the elusion that it is no part of a municipal reasonableness of the charge, whether estabpower to regulate the prices that may be lished by the defendant or by legislative act, cbarged for telephone service, any more than can or must arise. I shall content myself it is to regulate the prices that may be now with saying that I don't think the quescharged for any quasi public service, or for tion can be properly raised in a proceeding the sale of the necessaries of life. 'All sucb by mandamus. matters fall within the domain of legislative The foregoing sufficiently indicates my pomers. Hence I therefore think that Kan- reason for concurring in the result, only, in sas City could not, by its charter, take unto this case. itself the power claimed in this case, and that it was incompetent for the General Asserbly to delegate such power to Kansas City.

In re SEVENTEENTH ST. At first I was of opinion that as the de- KANSAS CITY V. KANSAS CITY, FT. S. feodant is organized under article 6 of

& M. R. CO. chapter 12 of the Revised Statutes of 1899,

(Supreme Court of Missouri, Division No. 2. and as that article conferred upon the de

June 6, 1905.) fendant the right to do telephone business,

1. MUNICIPAL CORPORATIONS *add to make such reasonable charges for


TION PROCEEDINGS-ABANDONMENT. te of the same as they may establish,"

In the absence of statutory regulations to it was within the power of the court to de- the contrary, a municipal corporation may distermine whether the charges established by continue proceedings to condemn property for the defendant were or were not reasonable,

public uses, and abandon the public improve

ment in question, at any time before the makand that the question could be determined

ing of a final award in the nature of a judgin a proceeding by mandamus. It is argued, ment in favor of the property owners for their bonater, that the power to fix such charges compensation. is a legislative power, which can only be

[Ed. Note.-For cases in point, see vol. 18,

Cent. Dig. Eminent Domain, 8 527.] exercised by the General Assembly, and that

2. SAME_OPENING STREET ABANDONMENT the court has no power to fix the same.

OF PROCEEDINGS-PRESUMPTIONS. Upon further reflection I have come to the Where it does not appear that a city took conclusion that the true construction of the any steps to continue street-opening proceedprovisions of the article quoted is that the

ings after the passage of an ordinance confirmdefendant may fix such reasonable charges

ing a verdict of viewers, and the city did not

appear in a subsequent appeal taken by a propas it sees fit, subject, however, to the right erty owner, it will be presumed that the city of tbe General Assembly, by general law, to abandoned the improvement. fi such reasonable charges, and that the


RIGHT OF APPEAL. power of the court is limited to determining,

Where the property of appellant in streetin a proper case, whether the charges fixed,

opening proceedings was neither taken, damwhether by the company or by the Legis- aged, nor assessed, but was in identically the lature, are reasonable charges, and that such

same condition after the return of the verdict

of the viewers' jury, and a confirmation therequestion cannot be decided in a proceed

of by the city council as before, he was not auinz by mandamus. I believe that the stat- thorized to appeal, within Kansas City Char. ate does not confer upon the defendant an ter, art. 7, § 5, authorizing a person affected absolute right to determine what shall be

by the proceeding, either as the owner of prop

erty taken or damaged, or the owner of propa reasonable charge, and I also believe that

erty assessed who feels aggrieved, to appeal. ered the Legislature cannot arbitrarily and 4. SAME-AFFIDAVIT OF APPELLANT-SUFFIoppressively fix a charge that will amount CIENCY. to a deprivation of the privileges and fran

Where the affidavit of an appellant in

street-opening proceedings merely stated that ehises conferred by law upon the defendant

he was the owner of certain property affected company. The General Assembly, it is true, by the judgment, but did not allege the appelLight repeal the whole act in relation to lant's interest in the proceeding, as required by telephone companies, and leave the subject

Kansas City Charter, art. 7, § 5, it was insuffi

cient to support the appeal. itbout legislative regulation, but as long as the Legislature permits a company to Appeal from Circuit Court, Jackson Counengage in such business it is beyond the ty; Edward P. Gates, Judge.

Proceedings by Kansas City to acquire to the north line of 17th street; thence east land for the opening of Seventeenth street. to the east line of West Prospect Place; From a judgment assessing damages, the thence north 168 feet; thence east to the west Kansas City, Ft. Scott & Memphis Rail- line of Belleview avenue; thence south along road Company appeals. Reversed.

the west line of Belleview avenue to the This cause comes to this court by appeal

place of beginning. from a judgment of the circuit court of Jack

"Sec. 3. All ordinances or parts of ordinanson county, Mo., against the defendant.

ces in conflict herewith are insomuch as they These proceedings were begun by the passage

conflict with this ordinance hereby repealed.". of an ordinance of Kansas City, Mo. (No. 16,

The city engineer of Kansas City, Mo., aft129), which was in words and figures as fol.

er the adoption of this ordinance, made out lows:

a map or plat, and delivered the same to the An ordinance to open and establish Seven

mayor of said city, in which was embraced teenth street from the west line of Holly

a showing of the benefit district. The city street to the westerly line of Franklin

clerk of Kansas City, Mo., issued a notice street.

under his hand and seal to property owners, "Be it ordained by the common council of

notifying them that their property would be Kansas City:

taken for the purposes specified in the ordi"Section 1. That Seventeenth street be

nance of Kansas City, No. 16,129. The city and the same is hereby opened and establish

clerk also issued the following notice to the ed from Holly street to the westerly line

appellant in this cause: "You will take noof Franklin street the boundary lines of tice that your property will be assessed to which shall be as follows, to wit: Beginning

compensate for the taking of private propat a point on the west line of Holly street

erty for the purposes specified in the ordiat its intersection with the north line pro

nance of Kansas City No. 16,129, entitled duced west of 17th street; thence west along

‘An ordinance to open and establish Seventhis prolongation to the north line of 17th

teenth street from Holly street to westerly street to the westerly line of Franklin street

line of Franklin street,' approved January 5, produced north; thence south along this pro

1901, and that a jury will be empaneled to longation of the westerly line of Franklin

make such assessment on the 20th day of street to an intersection with the southerly May, A. D. 1901, at ten o'clock in the foreline produced west of lot A, block 1, of re

noon at the Lower House council chamber survey of Whipple's Second Addition; thence

on the fourth floor of the city hall building east along the south lines of lots A and B

on the southeast corner of Fourth and Main of said block 1 to the west line of Holly

streets in Kansas City, Jackson County, Misstreet; thence north along the west line of

souri.” On May 20, 1901, on account of the Holly street to the place of beginning. And

failure to get service on some of the property all private property within said limits is owners, the proceedings were continued by hereby taken and condemned for public use

the mayor to July 1, 1901. On July 1, 1901, as a part of 17th street and just compensa

the following proceedings appear of record: tion therefor shall be assessed, collected and

"In the matter of the proceedings to aspaid according to law.

certain and assess just compensation to be “Sec. 2. The common council determines paid for private property taken for public and prescribed the limits within which pri- use, for the purpose specified in an ordinance vate property shall be benefited by the im- of Kansas City, No. 16,129, entitled 'An Orprovement herein proposed and be assessed dinance to open and establish 17th street and charged to pay compensation therefor

from the west line of Holly street to the as follows, to wit: Beginning at a point on westerly line of Franklin street,' Approved the west line of Belleview avenue 132 feet Jan'y 5th, 1901. south to the south line of 17th street; thence "Hon. Jas. A. Reed, Mayor of Kansas City, west and parallel to the south line of 17th presiding: street to the east line of Holly street; thence "Now on this day come John A. Hanley, to the southeast corner of lot five (5), block R. G. Perkins, John Bayha, Wm. Reeves, 1, Resurvey of Whipple’s Second Addition; Chas. A. Bickell, F. N. Phelps, the jury sumthence to the southwest corner of said lot moned herein, and it appearing to the court 5; thence to the southeast corner of lot 143 that they are all qualified and disinterested of said block 1; thence west along the south freeholders of Kansas City, Missouri, they line of said lot 143 and this line produced are duly empaneled a jury herein, sworn to west to a point 150 feet west of the west faithfully and honestly discharge their duline of Franklin street; thence in a north- ties according to law and the ordinances unerly direction parallel to the westerly line der which these proceedings are carried on. of Franklin street to the north line produced "The jury was instructed by the court to west of lot A, block 1, of the Resurvey of go with the city engineer to-day to view the Whipple's Second Addition; thence north property to be taken and assessed, and this and parallel to the west line of Holly street matter and all proceedings herein are coll198 feet; thence east and parallel to the tinued to Monday, July 8th, 1901, at ten of north line of 17th street produced west to the clock in the forenoon at the Lower House the east line of Holly street; thence south Council Chamber on the fourth floor of the

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