Laclede Gas Light Co. v. Murphy, 170 U.S. 78 (1898)
Missouri ex Rel. Laclede Gas Light Company v. Murphy
No. 47
Argued March 1-2, 1898
Decided April 11, 1898
170 U.S. 78
ERROR TO THE SUPREME COURT
OF THE STATE OF MISSOURI
Syllabus
The Supreme Court of Missouri having held that the act of the legislature of that state incorporating the Laclede Gas Light Company and conferring upon it the sole and exclusive privilege of lighting the streets in parts of St. Louis, though construed to include the right to use electricity for illuminating purposes in respect to such right, was taken subject to reasonable regulations as to its use, and that the power to regulate had been delegated to the City of St. Louis, and that, under its general public power, the city had the right to require compliance with reasonable regulations as a condition to using its streets for electric wires, this Court concurs with the conclusion of the Supreme Court that the company was subject to reasonable regulations in the exercise of the police powers of the city, and holds that, so far as that involved any federal question, such question was correctly decided.
If the company, as it asserted, possessed the right to place electric wires beneath the surface of the streets, that right was subject to such reasonable regulations as the city deemed best to make for the public safety and convenience, and the duty rested on the company to comply with them.
If requirements were exacted or duties imposed by the ordinances which, if enforced, would have impaired the obligations of the company’s contract, this did not relieve the company from offering to do those things which it was lawfully bound to do.
The exemption of the company from requirements inconsistent with its charter could not operate to relieve it from submitting itself to such polices regulations as the city might lawfully impose, and until it had complied, or offered to comply, with regulations to which it was bound to conform, it was not in a position to assert that its charter rights were invaded because of other regulations which, though applicable to other companies, it contended would be invalid if applied to it.
The Supreme Court of Missouri did not feel called on to define in advance what might or might not be lawful requirements, and there is nothing in this record compelling this Court to do so.
On a writ of error to a state court, this Court cannot revise the judgment of its highest tribunal unless a federal question has been erroneously disposed of.
The Laclede Gaslight Company filed its petition for mandamus in the name of the State of Missouri, on its relation, against Michael J. Murphy, Street Commissioner of the City of St. Louis and another, on November 26, 1894, in the supreme court of that state.
This petition stated that the relator was incorporated by an act of the General Assembly of Missouri approved March 2, 1857, which was amended by an Act approved March 3, 1857, and by an Act approved March 26, 1868, and set forth the three acts in extenso.
The fifth section of the Act of March 2, 1857, read as follows:
§ 5. The said company, its successors and assigns, shall, within all that portion of the present corporate limits of the City of St. Louis, in St. Louis County, not embraced within the corporate limits of said city, as established by the act entitled "An act to incorporate the City of St. Louis," approved February 8, 1839, have and enjoy, during the continuance of this act, the sole and exclusive privilege and right of lighting the same, and of making and vending gas, gas lights, gas fixtures, and of any substance or material that may be now or hereafter used as a substitute therefor, and to that end, may establish and lay down, in said portion of said corporate limits, all pipes, fixtures, or other thing properly required in order to do the same (the same to be done with as much dispatch and as little inconvenience to the public as possible), and shall also have all other powers necessary to execute and carry out the privileges and powers hereby granted to said company.
The words "sole and exclusive" in the fifth section were stricken out by the Act of March 3, 1857. Laws Missouri, 1856-57, pp. 598, 599.
Section 1 of the Act of March 26, 1868, amending the Act of March 2, 1857, was as follows:
Section 1. The said Laclede Gas Light Company shall and may, within the corporate limits of the City of St. Louis as the same are now or may hereafter be established, exercise, have, hold, and enjoy forever all the rights, privileges, and franchises granted to it by the fifth section of the act to which this act is amendatory, and may at any time lease, sell, or dispose of any portion of said rights, privileges, and franchises to individuals, associations, or corporations intending or desiring to exercise the same within any portion of the limits aforesaid.
Laws Missouri, 1868, p. 187.
The petition then averred that the Act of March 2, 1857, as amended by the subsequent acts, constituted relator’s charter, by which relator was granted the privilege and right of lighting the City of St. Louis as in the acts set forth,
and to that end may establish and lay down in any portion of said corporate limits all pipes, fixtures, or other thing properly required in order to do the same, with this limitation only, that in laying down pipes, fixtures, or other thing properly required therefor, relator shall do the same with as much dispatch and as little inconvenience to the public as possible.
It was further stated that, by a certain agreement executed February 28, 1873, relator had
abandoned and surrendered any and all exclusive rights, and all claims or pretenses of claims of sole or exclusive privilege or right, of lighting any part of the City of St. Louis with gas, or making or vending gas, gas lights, or gas fixtures, and also all exclusive right whatsoever under its said charter.
The petition went on to say that, in pursuance of its charter, relator had been for a long time engaged in the lighting business, both by gas and electricity; that, under a contract with the city, it was lighting a part of the public streets and alleys by electricity, and would be obliged to do so for some years to come; that it was furnishing light, by means of gas or electricity, to a large part of the inhabitants of the city; that, in order to fulfill its obligations to the city and the public, the company had erected and was maintaining "extensive and costly plants for the manufacture and distribution of gas, as well as for generating and distributing electric currents;" that for distributing gas it had constructed a system of pipes laid under ground, without objection; that for the distribution of electricity it had "hitherto used overhead wire strung upon poles along the streets and alleys of said city," which poles and electric wires had been and are maintained and used by relator, without objection by said city or the authorities thereof, for the distribution of electricity, as well to furnish light to private consumers as for the fulfillment by relator of its said contract with said City of St. Louis for the lighting by electricity of certain public streets and alleys thereof; that to effect such distribution, it is necessary to transmit through and by means of said wires electric currents of great power, which, if and when accidentally diverted, are dangerous to human life and property; that in order to avoid the inconvenience and danger to the public necessarily incident to that method of distributing electric currents, and in order to provide more effective and proper service, relator has made arrangements to lay its wires underground along and under the streets of said city according to approved and practicable plans, and is now ready to do so with as much dispatch and as little inconvenience to the public as possible.
It was then stated that Murphy was street commissioner, to whom was committed, under the city charter, "the supervision and control of the streets and alleys of said city, and the enforcement of city ordinances relating thereto." And relator averred that, having completed its preparation to carry out the work above indicated, and having given notice to the street commissioner of its intention to do so, the company proceeded on the 30th day of October, 1894, to begin the work of excavating at a point on the east side of Broadway Street, in St. Louis, near the corner of Mound Street (that point being adjacent to its generating plants), which work was proper and necessary for placing wires under ground, when the street commissioner caused the work to be stopped, and notified relator
that he would not allow any part of any street of said city to be excavated for any purpose whatever without a permit previously obtained from him for that purpose, as provided by ordinance, and relator states that, by section 568, Article I, c. 15, of the Revised Ordinances of 1887 of said City of St. Louis, it is provided that
no person shall make or cause to be made any excavation on any public street, highway, or alley without written permission of the street commissioner so to do, excepting public work under the authority of the water or sewer commissioner, who at the time of ordering any such excavating shall notify the street commissioner of the same.
That upon being so notified, the company applied to the street commissioner for a permit to make the necessary excavation on Broadway so that it might place its wires under the street for the purposes indicated. That the officer refused to give the permit asked, whereby, it was alleged, the company, in the exercise of its vested rights, was prevented from laying down in the streets of the city the pipes and fixtures required in the conduct of its business.
That it was the duty of the street commissioner to grant the permit; and, being without other remedy, relator prayed a mandamus against that officer commanding him to issue a permit to the company to make an excavation along the east side of Broadway Street, as near the curb as practicable, and extending from the southeast corner of Mound Street to the southeast corner of Olive Street and Broadway insofar as was necessary for the laying of the company’s electric wires underground, "the same to be done with as much dispatch and as little inconvenience to the public as possible."
An alternative writ of mandamus having been issued, the street commissioner filed his return thereto, alleging therein that the Act of March 26, 1868, was in conflict with paragraph 2 of section 1 of article VIII of the Constitution of Missouri of 1865, because the company did not, within one year from the time the Act of March 2, 1857 took effect, organize or commence the transaction of its business, and not until 1873, and that said act was in conflict with section 25, Art. 4. of the Constitution of Missouri, because it did not set forth the act or part of act amended at length, as if it were an original act or provision.
That relator had never by any act been granted the franchise to make and vend electricity for any purpose whatever, and that lighting by electricity was wholly unknown March 2, 1857, and March 26, 1868.
That the relator has heretofore placed its pipes and fixtures beneath the surface of the street on the east side of Broadway, from Mound Street to Olive Street, and at divers and sundry other places beneath the surface of the streets of the City of St. Louis, for the purpose of transmitting and vending and supplying gas to consumers in the City of St. Louis. That in order to convey electricity, it is necessary to carry the same by means of wires strung on poles above the surface of the streets or by means of wires strung in nonconductive tubes or conduits beneath the surface of the streets, and that relator has never acquired from the State of Missouri or the City of St. Louis any right to place such wires above or beneath the streets of said city.
That it is provided by section 2721, are. 5, c. 42, Rev.Stat. 1889, that no company shall place its wires and other fixtures underground in any city unless it shall first obtain consent from said city, through the municipal authorities thereof.
And that it is provided by art. 2, c. 15, Rev.Ordinance of the City of St. Louis 1887, as the same has been amended by Ordinance No. 16,894, that no wires, tubes, or cables conveying electricity for the production of light, heat, or power shall hereafter be placed along or across any of the streets, alleys, or public places in the City of St. Louis by any person, corporation, or association not having, previous to the passage of this ordinance, accepted and complied with Ordinance No. 12,723, now amended, or shall be duly authorized by the municipal assembly, and then only upon condition that such person, corporation, or association so authorized by ordinance, before placing its wires, tubes, and cables underground, shall file in the office of the board of public improvements an application therefor, stating in detail the streets, alleys, or public places which said wires, tubes, or cables are to occupy, and the manner in which said wires, tubes, or cables are to be secured or supported and insulated, together with a plat showing the route of such wires, tubes, and cables, and that thereupon, if the same is approved, the board of public improvements shall grant a permit therefor, subject to such restrictions, regulations, and qualifications as may be prescribed by said board, and all such work shall be done under the supervision of, and to the satisfaction of, the supervisor of city lighting, and that whenever an alley is available for placing such wires, tubes, or cables, the same shall be placed in or under alleys, and not along or under streets. That relator has never accepted the provisions of said article and chapter, nor of said Ordinance No. 16,894; nor has it ever been authorized by the municipal assembly of St. Louis to place its wires, tubes, and cables under the streets or alleys of St. Louis.
Respondent further shows unto the court that said ordinance provisions are legal and binding and valid provisions, and such as the City of St. Louis had the right to adopt and enact under paragraph 2 of section 26 of article 3 of the Charter of St. Louis, which gives said city the power to regulate the use of all streets, avenues, alleys, and so forth, in said city, and such ordinance provisions are legal enactments notwithstanding any rights which relator now has or may heretofore have had by virtue of any act of the General Assembly of the State of Missouri.
Respondent further shows unto the court that relator has never made application to the board of public improvements for a permit to place its wires, tubes, and cables underground in said city, nor has it complied in any manner with any of the ordinance provisions aforesaid, and that respondent has not the power to grant any such permit as is asked for by relator in this case.
The relator moved to strike out certain portions of the return, and demurred to certain other portions thereof, assigning, among other grounds, that its
charter was and is a contract between the State of Missouri and said corporation, not subject to alteration, suspension, or repeal except with the consent of said corporation, and that any constitutional provision, law, or municipal ordinance adopted or enacted after said date by or by authority of said state or by any municipality thereof inconsistent with any right, privilege, or franchise granted by said charter to relator, or the effect of which would be to deny to relator any such right, privilege, or franchise, or to annex to the full exercise thereof by relator any condition or requirement not prescribed by said charter, would be in contravention of section fifteen of article II of the Constitution of Missouri of 1875, forbidding the General Assembly to pass any law impairing the obligation of contracts, and also of Section 10 of Article I of the Constitution of the United States, forbidding any state to pass any such law.
That
the provisions of said ordinance of said City of St. Louis in said portion of said return mentioned, if held valid or binding upon relator, would necessarily impair the obligation of the contract between relator and said State of Missouri contained in said charter by annexing to the exercise by relator of the rights and privileges by said charter granted to it certain conditions and requirements not prescribed by said charter, and which it does not appear, nor is by respondent averred, that the relator has ever consented to or accepted.
On the issues thus presented, the supreme court heard the cause, and denied the peremptory writ.
Subsequently, on the application of relator, the judgment was set aside, the demurrer to the return and motion to strike out parts thereof were overruled, and leave was given to plead over.
Relator thereupon filed a traverse to the return setting forth at length the grounds on which relator denied that the averments in the return in respect of the organization of the company, and of the time when it commenced the transaction of business, and of the invalidity of the Act of March 26, 1868, constituted defenses to the proceeding.
The traverse further stated that if electricity was not a substance or material, as averred by respondent, which relator denied, that constituted no defense. That relator was incorporated to carry on the business of lighting the City of St. Louis, and the right and privilege of doing so was granted as before set forth and reiterated. The traverse explained the process of lighting by gas, and also by electricity, which relator asserted was included in the grant; admitted that the company had theretofore exercised its corporate franchise of lighting the city with gas through pipes laid beneath the surface of the street on the east side of Broadway from Mound Street to Olive Street and in other places; that, to furnish light by means of electricity, it was necessary to use wires
either on poles above the surface of the street, as relator is now doing under a contract with said City of St. Louis, or in tubes or conduits beneath said surface,
and that
its purpose in making the excavation on Broadway mentioned in the petition was to construct and place underground a conduit for wires, such conduit and wires being properly required for the production of electric light as a substitute for gas light,
and set forth that the conduit and wires so intended to be laid down were of the most approved description, offering no obstruction, and avoiding the danger to life and property attending the use of overhead electric wires.
The traverse denied that relator had not acquired the right to place such wires above or beneath the streets, and denied that section 2721 of article V, c. 42, Revised Statutes of Missouri 1889, applied to relator, but averred that if it did, its provisions would be invalid as impairing the obligation of the contract contained in its charter.
The traverse admitted that, by article two, chapter fifteen, Revised Ordinances of St. Louis 1887, as amended by Ordinance No. 16,894, the municipal authorities undertook to prescribe certain conditions for placing wires, tubes, or cables conveying electricity along, across, or under the streets and alleys of the city, and averred that said ordinance, and the amendatory Ordinance No. 16,894, are the same ordinances revised and reenacted in article II of chapter 15 of the Revised Ordinance of 1892, by an Ordinance No. 17,188, approved April 7, 1893, and that sections 603 to 614 are the only provisions prescribing regulations or conditions in respect of placing along, across, or under any of the streets, alleys, and public places, of wires, tubes, or cables conveying electricity for the production of light, heat, or power, and are the provisions insisted on by respondent. These sections were set out in the traverse, and are printed in the margin.
The traverse then proceeded:
Relator denies that the requirements of said city ordinances set forth were or are legal and binding and valid provisions, so far as the rights of this relator under its charter were or are concerned, and denies that, as against this relator, said City of St. Louis had or has the lawful right or power to adopt or enforce the same, whether under the provisions of paragraph 2 of section 26 of article III of the charter of said city, as by respondent alleged, or under any other provision of the charter of said city.
Relator further shows to the court that by reason of the exemption contained as aforesaid in section 8 of said Act of March 2, 1857, relator’s charter, as granted in and by said act of 1857 and as subsequently amended by the Act of March 26, 1868, hereinbefore mentioned, was and is a contract by the State of Missouri with relator which was not, nor is, subject to alteration, suspension, or repeal by the State of Missouri, or by any municipality thereof; that said City of St. Louis had not, nor has, lawful power, by ordinance or otherwise, to impair the obligation of said contract, nor to abridge or interfere with the full exercise by relator of any corporate franchise thereby granted to it; that the enforcement against said relator of said provisions of said ordinances of said City of St. Louis would be a denial to relator of its corporate rights and franchises aforesaid, and would impair the obligation of the said contract of the said State of Missouri contained in relator’s charter as amended, and would be in contravention of section 15 of article II of the Constitution of Missouri of 1875, forbidding the General Assembly to pass any law impairing the obligation of contracts, and also section 10 of article I of the Constitution of the United States, forbidding any state to pass any such law, each of which constitutional provisions is hereby referred to, and relied on by relator for the protection of its corporate rights and franchises aforesaid in this behalf.
Relator further shows to the court that the only condition annexed by its charter, as amended, to the exercise by relator of its right to establish and lay down in said city all pipes, fixtures, or other thing properly required in order to carry on relator’s said lighting business is that the same shall be done with as much dispatch and as little inconvenience to the public as possible, and avers not only that, in making its arrangements and preparations to lay its wires underground along and under the streets of said city as in its petition in this behalf alleged, and in applying to respondent, as street commissioner of said city, for a permit to make the necessary excavation therefor, relator has fulfilled every condition to which it was or is lawfully subject in that behalf, but also that respondent, in refusing to relator such permit, did not allege as a ground for such refusal, nor did in fact refuse such permit for the reason that, by laying its wires underground in the manner by it proposed, relator would cause any inconvenience to the public, but expressly and unconditionally refused to permit relator to make any excavation in any street of said city.
Relator shows to the court that, as against this relator, the said ordinances and provisions above mentioned are not valid, legal, or binding enactments, nor constitute any defense to this proceeding:
Because, as relator avers, said provisions are not, so far as relator’s rights are concerned, lawful or reasonable regulations of the use of the streets of said city, but were intended to, and do, prohibit relator from exercising its said charter rights and powers except upon compliance by relator with conditions which the City of St. Louis has not, nor has the municipal assembly thereof, any lawful right or power to impose on relator in that behalf, including as one of said conditions that relator shall first be duly authorized thereto by the municipal assembly, thereby impairing the obligation of the contract contained in relator’s charter as amended.
Because the enforcement against relator by said city, or any officer thereof, of the conditions prescribed by said ordinances would not be a lawful or reasonable exercise of the power of said city, under its charter, to regulate the use of its streets, or of the police power of said city, but is an attempt by said city, under control of its charter powers, to compel relator to enter into the obligations and to pay to said city from time to time the tax of five percent upon the gross annual receipts from relator’s business prescribed by section 590, article II, c. 15, Revised Ordinance 1887, reenacted as section 612, art. II, c. 15, Revised Ordinance 1892, above mentioned, forasmuch as it is provided by said section 590, art. II, c. 15, Revised Ordinance 1887, reenacted as section 612, art. 2, c. 15, Revised Ordinance 1892, that no person or persons, corporation or association, shall be entitled to any of the privileges conferred by said article II, c. 15, except upon fulfilling the several conditions in said section 612 prescribed, as hereinbefore set forth.
Because among the conditions prescribed by said section 590, reenacted as section 612, relator would be compelled, before availing itself of any of the rights or privileges mentioned in said article II, c. 15, Revised Ordinance 1887, reenacted as article II, c. 15, Revised Ordinance 1892, to file with the city register its penal bond in the sum of twenty thousand dollars, conditioned that relator will comply with all the conditions of said article , or with any ordinance which might thereafter be passed, and will comply with all regulations which may be made by the board of public improvements having reference to the subject matter embraced in said article II or any ordinance therein named, all which requirements and conditions are a denial of relator’s rights under its charter, and impair the obligation of the contract contained therein as aforesaid.
Because said article II, c. 15, Revised Ordinance 1887, reenacted as article II, c. 15, Revised Ordinance 1892, purports to authorize the board of public improvements of said city, in granting a permit for the use or occupation of the streets, alleys, and public places of said city for the purposes therein mentioned, to prescribe such restrictions, regulations, and qualifications as said board may think fit in respect of the use of said streets, alleys, and public places, and requires every person or corporation obtaining such permit, as a condition of availing itself of the privileges mentioned in said article II, to agree to comply with all such regulations made by said board, whereas the power to regulate the use of the streets of said city, granted -- clause 2, section 26, article III, of its charter, is granted only to the mayor and assembly of said city, to be exercised by ordinance not inconsistent with the constitution or any law of this state or with said charter, and does not authorize the said mayor and municipal assembly, or either of them, by ordinance or otherwise, to delegate to the board of public improvements of said city the power to make regulations for the use of said streets. Wherefore relator says that said requirements and said condition are unlawful and void.
And relator says that the several conditions and requirements prescribed in said article II, c. 15, Revised Ordinance 1887, as amended and reenacted in article II, c. 15, Revised Ordinance 1892, are not independent of each other, but are so framed as to subject relator, its officers and agents, to the penalties prescribed in section 591, Revised Ordinance 1887, reenacted as section 613, Revised Ordinance 1892, unless, before placing along, across, or under any street of the City of St. Louis any wires such as hereinbefore mentioned, it (said relator) shall not only have obtained authority so to do from the municipal assembly of the City of St. Louis, but shall also have filed in the office of the board of public improvements of said city an application therefor, such as prescribed in section 583, Revised Ordinance 1887, reenacted as section 605, Revised Ordinance 1892, and shall have obtained a permit therefor from said board, with such restrictions, regulations, and qualifications as by it prescribed, and shall also have filed with the city register its acceptance of all the terms of said article II, c. 15, and shall therein agree, as required by section 590, Revised Ordinance 1887, reenacted as section 612, Revised Ordinance 1892, to file with the comptroller of said city sworn semi-annual statements of its gross receipts from its business, and to pay to the city treasurer a tax of five percent upon the amount of such gross receipts, and shall also have filed with the city register its bond in the sum of twenty thousand dollars conditioned as prescribed in said section 590, Revised Ordinance 1887, reenacted as section 612, Revised Ordinance 1892, all which requirements and conditions are a denial of relator’s rights under its charter and impair the obligation of the contract contained therein as aforesaid.
To this, traverse respondent filed a general demurrer, assigning also special grounds.
Subsequently, the City of St. Louis was made a party, entered its appearance, and adopted as its own the return of the street commissioner, and his demurrer to the traverse.
The demurrer was then sustained by the supreme court, "for the reasons given in the opinion heretofore rendered in this cause, to which reference is hereby made as a part of this judgment," and judgment was again entered denying the peremptory writ.
A writ of error from this Court was allowed by the Chief Justice of Missouri. The opinion of the state court forms part of the record, and is reported in 130 Mo. 10.
The court in that opinion stated that, on the pleadings, the following issues of law were fairly framed:
First. Is the Act of March 26, 1868, unconstitutional, as being in conflict with section 2, article VIII, of the Constitution of Missouri of 1865?
Second. Is said act void as being in conflict with section 25 of article IV of said constitution?
Third. Did the charter of relator expire by limitation at the end of thirty years from the date of the Act of March 2, 1857?
Fourth. Do the powers granted relator include the right to manufacture, sell, or distribute electricity for lighting purposes?
Fifth. Has relator the right, under its charter, to place its wires underground without the assent of the municipal authorities and without compliance with the requirements of the valid ordinances of the city?
But the court declined to express an opinion on
any question involving the right of relator to exercise the rights or enjoy the franchises which appear to have been granted under the acts of the General Assembly mentioned in the statement,
or "to inquire whether the right to use electricity for making light was included under the terms `substance or material,’ as used in the charter," and confined itself
to the question whether relator has a vested right to place its electric wires under the surface of the streets without the assent of the municipal authorities thereof, and without compliance with valid ordinances of the city.
And this question, for reasons given, the supreme court determined in the negative, and held that
respondent, under his official duties as street commissioner, properly refused to grant the permit demanded, unless relator first complied with the requirements of the valid ordinances then in force.