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08/31/93 STATE MISSOURI v. HON. EDWARD D. HODGE

August 31, 1993

STATE OF MISSOURI, EX REL. MISSOURI CITIES WATER COMPANY, RELATOR,
v.
HON. EDWARD D. HODGE, RESPONDENT.



Writ of Prohibition.

Paul J. Simon, Presiding Judge, Gerald M. Smith, Judge-concurs. Kathianne Knaup Crane, Judge-concurs.

The opinion of the court was delivered by: Simon

This is an original proceeding in prohibition. Relator, Missouri Cities Water Company, seeks to prohibit respondent, Judge Edward D. Hodge of the Circuit Court of Audrain County, from enforcing an order of condemnation authorizing the City of Mexico, Missouri (Mexico) to acquire lands, property and rights of relator. Relator is a public utility which owns and operates a waterworks and waterworks system in Mexico under a certificate of convenience and necessity from the Missouri Public Service Commission. Mexico proposes to operate the waterworks and waterworks system as a municipally owned and operated system. Relator does not presently have a franchise with Mexico to operate its water system and provide water to the citizens of Mexico. Relator is a Missouri corporation and is a wholly owned subsidiary of Consolidated Water Company, which is a wholly owned subsidiary of Avatar Utilities, Inc., which is a wholly owned subsidiary of Avatar Holdings, Inc., which is headquartered in the state of Florida.

On December 2, 1992, the City Council of Mexico approved Ordinance # 3533 declaring the acquisition of relator's Mexico Division to be public use and necessity. Subsequently, Mexico filed its First Amended Petition in Condemnation in the Circuit Court of Audrain County alleging that it was authorized by Article VI, § 27 of the Missouri Constitution and Chapters 77, 88, 91 and 250 of the Revised Statutes of Missouri, to operate, maintain, and acquire by negotiation, contract, purchase, or through the exercise of the power of eminent domain, a waterworks and waterworks system. The petition alleged that the public would be much better served if Mexico operated and maintained the waterworks system. Through its petition, Mexico sought to acquire all of relator's real property owned in fee simple, easements, and the personal property, fixtures and improvements located thereon for purposes of operating and maintaining the waterworks system. Mexico's First Amended Petition alleged:

This acquisition will vest in the City of Mexico, Missouri all right, title and interest to said real estate and easements, and all transmission lines, valves, pumps, wells, treatment filtration systems, water towers, coagulating basins, filter house, underground reservoir, pump stations, water storage tanks, storage towers, valves, meters, gauges, all buildings, improvements, structures, machinery, equipment, facilities and accessories used or connected with the operation of the waterworks system which serves the City of Mexico, Missouri and surrounding area, including those located within the public right-of-way for streets, alleys, sidewalks or roadways.

The petition also alleged that Mexico had negotiated with relator and was unable to agree with relator on the proper compensation to be paid relator for the acquisition of the rights to the real and personal property described in the petition, despite the good faith offer to purchase made by Mexico.

On March 18, 1993, respondent held a hearing on Mexico's petition, and on April 5, 1993, issued an order of condemnation ordering that the "lands, property and rights as described in [Mexico's] petition be and stand condemned for the use and purposes set out therein." Respondent further ordered that Mexico shall have the right to take possession upon the filing of the report of three disinterested freeholders appointed as commissioners and payment of the amount of relator's damages sustained by reason of such appropriation. On April 14, 1993, respondent entered a separate order staying its order of condemnation until April 30, 1993 or until relator's application for writ of prohibition was finally acted upon by this court or the Missouri Supreme Court, whichever occurred first. On April 19, 1993, this court entered its preliminary order in prohibition ordering respondent to refrain from all action in the premises until further order. Various parties have presented their views to this court as amici curiae, including Union Electric Company, Empire District Electric Company, St. Joseph Power and Light Company, Missouri Public Service Company, Missouri Municipal League, City of Kirkwood, and the Missouri Public Service Commission.

The essential question presented by relator's application for writ of prohibition is whether Mexico has authority under law to acquire by eminent domain an existing and ongoing waterworks and waterworks system. If the condemnation proceedings are not authorized by law, then respondent lacks subject matter jurisdiction and prohibition will lie. State ex rel. Devanssay v. McGuire, 622 S.W.2d 323, 324-26 [1] (Mo.App. 1981). Relator and various amici claim that respondent lacks jurisdiction over the condemnation proceedings against relator's property, and the writ of prohibition should be made absolute, because (1) no Missouri statute or provision of the Missouri Constitution grants a third class city, such as Mexico, express authority to condemn a public utility's operating waterworks and waterworks system which are already devoted to public use, and no such authority can be implied from a grant of general power to condemn or from a grant of power to operate or purchase a waterworks system; (2) even if condemnation of the waterworks and waterworks system were authorized by statute, relator could not be accorded due process of law, and the condemnation would be unconstitutional, in that the statutory mechanism for assessment of damages by three disinterested freeholders is inadequate to provide just compensation for the taking of an operating public utility; and (3) no approval of such condemnation was obtained from the Missouri Public Service Commission (Commission), and, assuming that the condemnation is authorized by Missouri statutes, approval of the Commission is a mandatory prerequisite to such condemnation. For the reasons set out below, our preliminary writ is made permanent subject to an order of the Commission authorizing transfer of the utility property sought in the underlying condemnation proceeding.

In its first point, relator argues that no Missouri statute or provision of the Missouri Constitution grants Mexico, a third class city, express authority to condemn a public utility's operating waterworks and waterworks system which are already devoted to public use, and no such authority can be implied from a grant of general power to condemn or from a grant of power to operate or purchase a waterworks system. Relator correctly states that the right of eminent domain is not inherent in municipalities and cannot be exercised by them without authority from the state. State ex rel. Schwab v. Riley, 417 S.W.2d 1, 3[1] (Mo.banc 1967); see also, McQuillin Mun Corp § 32.12 (3rd Ed.) The first task we face, in the context of this petition for writ of prohibition, is to determine whether the right to condemn an existing waterworks is expressed in or necessarily implied from the language of the applicable statutes. Our review of the statutes, and the suggestions of the parties, has uncovered no provision granting authority in express terms, to a city of the third class, to acquire by eminent domain an existing and operating waterworks. Therefore, the question becomes whether that authority is necessarily implied by the language of applicable statutes. In this consideration, we should bear in mind certain rules:

"Statutes granting the right of eminent domain are to be strictly construed. The rule is well settled in this state. The right is not to be implied or inferred from vague or doubtful language but must be clearly given in express terms or by necessary implication. * * * On the other hand, 'while eminent domain statutes are to be strictly construed so far as the power to condemn is concerned, yet they are not to be construed so as to defeat the evident purpose of the legislature.' Further, the doctrine of strict construction does not exclude a reasonable and sound construction of the statute under consideration." It has also been said that "the rule of 'strict construction' has no definite or precise meaning. It has only relative application. It is not the opposite of liberal construction, and it does not require such a strained or narrow interpretation of the language as to defeat the object. The primary purpose of all statutory construction is to determine the intent of the legislature; and all such rules are but vassals to the liege sovereign intent."

Riley, at 3-4[2-8]. (Citations omitted.) See also, McQuillin, (supra) , § 32.16. It is presumed the legislature intended that every word, clause, sentence, and provision of a statute have effect. Union Electric Co. v. Public Service Commission, 765 S.W.2d 626, 628 (Mo.App. 1988). It will not be presumed that the legislature inserted idle verbiage or superfluous language in a statute. Id.

Section 88.497 R.S.Mo. 1986 (all further statutory references shall be to R.S.Mo. 1986 unless otherwise noted), Condemnation of private property (third class cities), provides:

Private property may be taken by the cities of the third class for public use for the purpose of establishing, opening, widening, extending or altering any street, avenue, alley, wharf, creek, river, watercourse, market place, public park or public square, and for establishing market houses, and for any other necessary public purposes.

This section gives third class cities a general power of condemnation for necessary public purposes. Under § 1.020.(15) R.S.Mo. Cum. Supp. 1992, the property allowed to be condemned under the power given by § 88.497 would include both real and personal property. Further, Mo. Const. Art. XI, § 4 provides for the taking by eminent domain of the property and franchises of corporations and subjecting them to public use. Since franchises are personalty, clearly the power given by § 88.497 encompasses personal property.

The parties have also focused on § 91.450 in arguing whether that section establishes for cities of the third class the right to acquire a waterworks by eminent domain. Section 91.450 provides in pertinent part:

Certain cities may own public utilities-how acquired- board of public works

Any city of the third or fourth class, and any town or village, and any city now organized or which may hereafter be organized and having a special charter, and which now has or may hereafter have less than thirty thousand inhabitants, shall have power to erect or to acquire, by purchase or otherwise, maintain and operate, waterworks, gas works, electric light and power plant, steam heating plant, or any other device or plant for furnishing light, power, or heat....

Respondent argues that this section, allowing a city of the third class to acquire waterworks by purchase "or otherwise," grants Mexico the right to acquire relator's waterworks by eminent domain. In support of this construction of the "or otherwise" language of ยง 91.450, respondent relies on Riley, (supra) . In Riley, the City of California, Missouri instituted condemnation proceedings to acquire land outside its city limits on which to construct and maintain sewage lagoons. Faced with the contention that California did not have the power to condemn private property outside its city limits for use as sewage lagoons or roadways, the court looked to applicable ...


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