City of Reno v. Sierra Pacific Power Co., 6178.

• Decision Date: 03 November 1930
• Docket Number: No. 6178.,6178.
• Citation: 44 F.2d 281
• Parties: CITY OF RENO v. SIERRA PACIFIC POWER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

44 F.2d 281 (1930)

CITY OF RENO v. SIERRA PACIFIC POWER CO.

No. 6178.

Circuit Court of Appeals, Ninth Circuit.

November 3, 1930.

Le Roy F. Pike, City Atty., and Sardis Summerfield, both of Reno, Nev., for appellants.

Thatcher & Woodburn, Geo. B. Thatcher, and Wm. Woodburn, all of Reno, Nev., for appellee.

Before RUDKIN and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

This action was brought by appellee, Sierra Pacific Power Company, a public utility corporation, to enjoin the appellant, city of Reno, a municipal corporation, and its officers, mayor, city engineer, and city attorney, from interfering with water meters it had already established, and with those it intended to establish, in the streets of the city of Reno in connection with its business of furnishing water to the inhabitants thereof. A restraining order was issued, and, after notice and hearing, the court granted a temporary injunction enjoining the appellants from interfering with the water meters already established by the appellee, but denying the injunction as to future installations. An appeal was taken from this order.

It is conceded by both sides that the evidence taken on this hearing for temporary injunction is not properly before this court. The sole question raised by the appeal is whether or not the complaint states a cause of action in equity for injunctive relief. We will proceed to a consideration of that question, although convinced that it might more properly be raised after a trial upon the issues presented by the answer and reply which have been filed subsequent to the order granting temporary injunction.

It is alleged that the installation of these meters is necessary for the proper conduct of the business of the appellee in furnishing water to the inhabitants thereof. It is expressly alleged that the meters are not installed for the purpose of fixing charges against the users and consumers of plaintiff in the city of Reno, and that as installed, the meters do not constitute obstructions in the streets or alleys or in any wise interfere with the use thereof by the public. Notice was served upon the appellee by the appellant mayor requiring it to move the meters, and in default thereof threatening that the city would within ten days thereafter remove the same.

The appellant bases its right to remove the meters upon an act passed by the Legislature of the state of Nevada in 1919 establishing a Public Service Commission and defining its duties (Stat. of Nev. 1919, c. 109, p. 198). This statute imposed upon the Public Service Commission therein created the duty "to supervise and regulate the operation and maintenance of public utilities, as hereinafter named and defined, in conformity with the provisions of this act" (section 1). Section 7 of the act defines a public utility, and the business of the appellant of furnishing water to the inhabitants of the municipality is included therein. This section 7 provides:

"* * * And the public service commission is hereby invested with full power of supervision, regulation and control of all such utilities, subject to the provisions of this act and to the exclusion of the jurisdiction, regulation and control of such utilities by any municipality, town or village, unless otherwise provided by law."

Section 9 of the act provides that every public utility is required to furnish reasonably adequate service and facilities, and that charges for the service rendered must be just and reasonable.

It is provided that the commission may prescribe regulations for the management of the product furnished by the public utility. The statute (section 13) also provides that the consumer may have the quantity of the product or character of service rendered tested by the commission under certain conditions. To this provision for the measuring of quantity the following proviso on which...