California-Oregon Power Co. v. City of Grants Pass

• Decision Date: 03 March 1913
• Docket Number: 5,914.
• Citation: 203 F. 173
• Parties: CALIFORNIA-OREGON POWER CO. v. CITY OF GRANTS PASS et al.
• Court: U.S. District Court — District of Oregon

203 F. 173

CALIFORNIA-OREGON POWER CO. v. CITY OF GRANTS PASS et al.

No. 5,914.

United States District Court, D. Oregon.

March 3, 1913

A. C Hough, of Grants Pass, Or., for plaintiff.

Robert G. Smith and Geo. W. Colvig, both of Grants Pass, Or., for defendants.

BEAN District Judge.

This is an application for a preliminary injunction restraining the defendant city from enforcing an ordinance fixing rates to be charged by the plaintiff for supplying the inhabitants of the city with electricity for light and power purposes.

The plaintiff owns and operates in the defendant city an electric light and power system constructed and maintained under an ordinance dated January 5, 1905, granting to its predecessor in interest, the Condor Water & Power Company 'and its successors and assigns forever,' the right to occupy the streets, alleys, and highways of the city for the purposes stated. The Condor Water & Power Company assigned its franchise and plant to the Rogue River Electric Company, and on March 29, 1910, the latter company and the mayor and auditor, assuming to act on behalf of the city, entered into a contract fixing the terms and rates upon which the company would supply the city with light for a term of 10 years. The plant and franchise and all rights of the Rogue River Electric Company were subsequently assigned to the plaintiff. On April 4, 1912, the city passed an ordinance declaring the rates which could lawfully be charged for furnishing light and power to the city, and prohibiting the city officers from auditing or allowing any other or further sum than in such ordinance named, and thereafter refused to pay the plaintiff the amounts specified in the contract of March 29, 1910.

On January 15, 1913, the plaintiff filed with the Railroad Commission, pursuant to an order of such commission, a schedule of its rates, tolls, and charges as required by section 29 of the Public Utility Act of 1911. Laws 1911, c. 279. On the next day the defendant city passed an ordinance with an emergency clause making it unlawful for any person, firm, or corporation supplying the inhabitants of the city with electricity for light or power purposes to charge or receive from private consumers any rates in excess of those prescribed in the ordinance, which were less than as stated in the schedule filed with the commission.

The only question necessary to consider on this application is the power of the city to pass and enforce the ordinance last above referred to. Other questions were discussed at the argument, but are deemed immaterial to the present controversy. The city has not attempted to revoke or annul the franchise under which the plaintiff is maintaining and operating its plant, but only to fix the rates to be charged by it, and hence the validity of such franchise is not involved in this suit, and the adoption of the ordinance of 1912 is but an effort to repudiate the contract of March 29 1910. The plaintiff has a full, complete, and adequate remedy in an action at law to recover on the contract, in which the rights of the parties can be determined. Nor is it important whether the charter gives the city the power to fix the rates to be charged private individuals or consumers by the plaintiff. The ordinance sought to be enjoined was enacted after the plaintiff had filed its schedule of rates with the Public Service Commission as required by law, and thereafter it became and was unlawful for it to charge any greater or less compensation than as specified therein, until the rates should be changed as provided in the Public Utility Act. Section 31. That act defines the term 'public utility' to embrace all corporations, companies individuals, etc., that now or hereafter may own, operate, or control any plant or equipment for the conveying of telegraph or telephone messages, or the transportation of passengers by street railways as common carriers, or for the production transmission, delivery, or furnishing of heat, light, power, or power (section 1); vests in the Railroad Commission power and...