State ex rel. M. O. Danciger & Company v. Public Service Commission

• Decision Date: 16 July 1918
• Citation: 205 S.W. 36,275 Mo. 483
• Parties: THE STATE ex rel. M. O. DANCIGER & COMPANY v. PUBLIC SERVICE COMMISSION et al., Appellants
• Court: Missouri Supreme Court

205 S.W. 36

275 Mo. 483

THE STATE ex rel. M. O. DANCIGER & COMPANY v. PUBLIC SERVICE COMMISSION et al., Appellants

Supreme Court of Missouri, Second Division

July 16, 1918

Appeal from Jackson Circuit Court. -- Hon. C. A. Burney, Judge.

Affirmed.

Alex Z Patterson, General Counsel, James D. Lindsay, Assistant Counsel, and B. Denny Davis for appellant, Public Service Commission.

(1) The relator is engaged in a business of the kind defined in the Public Service Act, and is subject to the jurisdiction of the Commission by the plain terms of the act. Subsections 1 and 5 of Section 16 and Subsections 12 and 13 of Section 2, Publ Serv. Act of 1913. (2) The nature and extent of the business done by relator constitutes it a public service company. Neither a corporate charter as a public service company, nor a franchise from a city, nor the lack of them, are determinative. The nature of the business and of the service rendered is the decisive test and must control. Terminal Taxicab Company v. Kutz, 241 U.S. 252; German Alliance Insurance Company v. Lewis, 233 U.S. 389; Ratcliff v. Wichita Union Stock Yards Company, 6 L. R. A (N. S.) 834 and note; VanDyke v. Geary, 244 U.S. 39; Del Mar Water, Light and Power Company v. Eshleman, 167 Cal. 681, 140 P. 948; State ex rel. Subway Company v. St. Louis, 145 Mo. 575; Budd v. New York, 143 U.S. 517; Brass v. North Dakota, 153 U.S. 391; 1 Wyman, Public Service Corporations, sec. 50. (3) It is not necessary that a company should serve all of the public to give it the character of a public utility. No utility serves all of the public. The public does not mean everybody all of the time. But what is meant, is a service which affects so considerable a portion of the public, that it is public in the same sense in which any other may be called so. Terminal Taxicab Company v. Kutz, 241 U.S. 255; Peck v. Tribune Company, 214 U.S. 190; Cawker v. Meyer, 147 Wis. 320. (4) The business of furnishing electric current for light and power within a city is one of that large class of concerns which has always been held to be a business clothed with a public interest, and to be subject to regulation by the public. Exhaustive note in Ratcliff v. Wichita Union Stock Yards Company, 6 L. R. A. (N. S.) p. 834. (5) So long as relator undertakes to do a business, and to render a service public in its nature, relator cannot be permitted to discriminate or arbitrarily refuse service. Section 68, subsection 3, Pub. Service Act. (6) The provisions of the act are to be liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities. Section 127, Public Service Act.

I. J. Ringolsky, M. L. Friedman and Ringolsky & Friedman for respondent.

(1) Under the facts and the law respondent is not a public utility. State ex rel. Public Commission of Washington v. Spokane & I. E. R. Co., 154 P. 1111; Utilities Commission ex rel. Wabash v. Ill. Central, 113 N.E. 162; Cawker v. Meyer & R. R. Commissioners, 147 Wis. 320; Delmar Water, Light & Power Co. v. Eshleman, 140 P. 591. (2) The Public Service Act does not give the Commission jurisdiction over plants generating electricity for their own consumption and selling surplus. The act confers jurisdiction only over electrical companies having the right by charter, franchise, special or general laws, to use the streets and highways for the sale of electricity. Laws of State of Washington, 1911, pp. 534, 544; Public Service Act, Sec. 2, Art. 1; Sec. 64, Art. 4. (3) Assuming arguendo that the respondent is a public utility the Public Service Commission had no jurisdiction in the instant cases. Lusk v. Atkinson, 268 Mo. 116; Atchison, Topeka & S. F. Ry. Co. v. Public Service Com., 192 S.W. 462; Sec. 83, Laws 1913, 619; State ex rel. Payne v. Kinloch Tel. Co., 93 Mo.App. 349; State ex rel. v. Jones, 141 Mo.App. 304; State ex rel. v. Water, Light Co., 249 Mo. 649; Public Ser. Electrical Co. v. Board, 96 A. (4) The Commission has no authority, right or prerogative to designate or select certain specific persons out of many persons as the persons to whom service must be given.

OPINION

FARIS, J.

This is an appeal by the Public Service Commission and others from a judgment of the circuit court of Jackson County, annulling an order of the Public Service Commission (hereinafter called for brevity simply "Commission") in a case wherein one W. H. Roach, was complainant. After the conventional motions, the Commission and the complainant appealed.

This case is one of three of similar character and bottomed upon identically similar facts. The relief severally sought was an order upon M. O. Danciger (trading as M. O. Danciger & Company) to compel him to restore electric service to the complainants, which service, it was alleged, had been by said Danciger cut off without any legal excuse therefor. The complaints filed before the Commission by the three several complainants were similar in all substantial respects, and wholly similar except that the complaint filed in the instant case averred as a motive for the cutting off of the service, that discontinuance was due to ill-feeling engendered by the attitude of complainant in a Local Option election.

It was shown by the testimony adduced upon the hearing before the Commission that the Royal Brewing Company, situate at Weston, Missouri, is a corporation, the stock of which is largely, if not wholly, owned by respondent M. O. Danciger and his brothers. The Royal Brewing Company is engaged in the brewing of beer and in the manufacture of so-called soft drinks. The town of Weston contained, according to the last census, a population of 1019 persons, though the evidence adduced tends to show roughly that it now contains about 1500 population. Some six years before the hearing the Royal Brewing Company (hereinafter called for brevity the "Company") installed in its brewing plant the necessary machinery for producing electric light solely for its own use in lighting its property. During the last three or four years preceding the hearing before the Commission, the Company has also been using the electric current so generated for the purpose of operating by electricity a large part of the machinery used in its brewing business. Shortly after the Company put in its private electric plant it discovered that it was able to produce more electricity than was necessary for its own use in lighting and running its plant. It thereupon began to make special private contracts to furnish, under the conditions and circumstances below named, electricity for lighting and power purposes to certain private citizens of the town of Weston, located within a radius of three blocks of the Company's plant. Subsequently it began furnishing to the town of Weston lights for some of the streets and alleys thereof. At the time of the filing of this complaint between twenty and thirty of the business houses, and some ten residences within the area mentioned, were being lighted or partially lighted by electricity from the Company's plant. At this time the city was being furnished thirty or thirty-two lights, for which it paid for only five or six of these the sum of $ 19.50 per month. The remainder of the lights were furnished gratuitously. All of the electrical energy sold is delivered to consumers at the Company's plant. For, says one of the complainants, "we were told if we would run the line we could have the service." The Company has no distribution system for supplying any of these private persons; nor is it incorporated for this purpose, nor is this purpose mentioned among the things which as a corporation it may do; nor has it a franchise from the town of Weston as an electric lighting company, or any other permission to enter or cross the streets and alleys thereof. It does not itself place or construct any poles or wires upon the streets, alleys or public places of the city; nor does it own any poles or wires. The consumer desiring the surplus light or power furnishes his wire and poles, and bears all cost of constructing the line for transmitting the electric current from the Company's plant to the place of consumption, or he "taps in" on some other private owner's wire. The actual work of construction and installation is usually done, if not always, by employees of the Company, in which case the Company is reimbursed by the private consumer. In some instances the contracts for this installation were made directly with the employees themselves, and the work was done after working hours. In some cases the amount of current consumed is measured by a meter, which meter belongs to the consumer; and in others -- the greater number of cases -- the amount paid is governed by a flat rate.

The sale of the surplus current, although it is generated by the Company, and with the Company's machinery is conducted with consumers by respondent under the said trade name of "M. O. Danciger & Company." The reason for this arrangement was upon the hearing, without any contradiction thereof, thus explained by respondent: "The brewery didn't have a right to go into the lighting business, and I took it up with my brothers, and they said if you have got any friends you want to serve, you had better [not] serve them from the brewery company as a corporation, and that is how I happened to start this M. O. Danciger & Company. I got a little set of books at that time. I didn't really know what they were paying for their lights. Some of them were on flat rates, and every time a man would go around to collect, they would say their next door neighbor's bill wasn't as big as theirs and you must not be charging him as much per kilowatt as you are me. Then I had this form printed they offered in evidence, and gave them around a time or two as...