Denman v. City of Idaho Falls, 5693

• Decision Date: 07 October 1931
• Docket Number: 5693
• Citation: 4 P.2d 361,51 Idaho 118
• Parties: ALVIN DENMAN, Receiver of the EAST IDAHO GAS COMPANY, Appellant, v. THE CITY OF IDAHO FALLS, a Municipal Corporation, Respondent
• Court: Idaho Supreme Court

4 P.2d 361

51 Idaho 118

ALVIN DENMAN, Receiver of the EAST IDAHO GAS COMPANY, Appellant, v. THE CITY OF IDAHO FALLS, a Municipal Corporation, Respondent

No. 5693

Supreme Court of Idaho

October 7, 1931

MONOPOLIES-ANTI-TRUST LAW-MUNICIPAL CORPORATIONS.

Anti-trust Law is inapplicable to municipal corporations (C. S., secs 2532, 2534, 2537, 2544).

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. Ralph W. Adair, Judge.

Action for damages under state Anti-trust Law. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

Coffin & Zener, for Appellant.

When a municipality engages in the business of supplying electric light or power to private consumers, it is performing a corporate or proprietary function, and is liable for the conduct of its business in the same manner that individuals and private corporations are liable. (43 Corpus Juris, 1181 sec. 1950; Eaton v. Weiser, 12 Idaho 544, 118 Am St. 225, 86 P. 541; South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261.)

Ralph L. Albaugh and James S. Byers, for Respondent.

The Anti-trust Law, as a whole (chap. 116, C. S.), does not apply, and was never intended by the legislature to apply, to municipal corporations as is clearly shown by the following sections of said act: O. S., secs. 2534, 2537-2539, 2541, 2545.

In construing a statute the legislative intent is to be determined from a general view of the whole act. (36 Cyc. 1128.)

The word "corporation" does not ordinarily include a "municipal" corporation. (Donahue v. Newburyport, 211 Mass. 561, Ann. Cas. 1913B, 742, 98 N.E. 1081; State v. District of Narragansett, 16 R. I. 424, 16 A. 901, 3 L. R. A. 295; Switzer v. City of Wellington, 40 Kan. 250, 10 Am. St. 196, 19 P. 620; County of Sherman v. Simonds, 109 U.S. 735, 3 S.Ct. 502, 27 L.Ed. 1093.)

BUDGE, J. Lee, C. J., and Givens, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

Appellant brought this action to recover damages for unfair competition under C. S., secs. 2532 and 2544. This appeal is from judgment of dismissal upon sustaining demurrer to fifth amended complaint and refusal of appellant to plead further.

The fifth amended complaint, after alleging the capacity of appellant as receiver and respondent as a municipal corporation sets forth the granting of a franchise on March 14, 1920, by respondent to the predecessor of appellant and the acquisition thereof by the corporation of which appellant is receiver. Such franchise granted the right to acquire and maintain pipes and appurtenances thereto in, under, across, along, through and upon the streets and public places of said respondent city for the purpose of supplying artificial or natural gas, or a mixture thereof, to the said respondent city and its inhabitants for a period of fifty years but restricting the holder of the franchise from selling gas for lighting purposes. The ownership and operation by respondent of a hydro-electric light and power plant and its manufacture and sale of electricity in and about Idaho Falls for lighting, cooking and water heating is alleged. It is also alleged that said respondent city granted said franchise knowingly in contemplation of the construction and operation of a gas manufacturing and distribution plant in Idaho Falls by said East Idaho Gas Company; that said corporation expended in excess of $ 75,000 for such purpose and commenced the sale and manufacture of gas about January, 1924. The gist of the cause of action is the alleged adoption of an ordinance by respondent city establishing "an electric tank heater rate for heating water of $ 2.00 per month for each one thousand watt capacity of tank heater, effective during the months from April 1st to October 31st of each year, and provided by the terms of said ordinance that only users of electric ranges should be entitled to said flat rate on tank heaters." It is alleged that respondent city thereafter extended said time limit at said rate "until further notice." Appellant avers that such action was taken by respondent "for the purpose of monopolizing the business of selling public utility heat units in the city of Idaho Falls and driving out of business the said East Idaho Gas Company," and that such action was designed to, and actually did, prevent the said East Idaho Gas Company from contracting for the sale of gas in sufficient quantities to pay the cost of operating the said gas manufactured and distributing plant "and was thereby effective for the purpose of monopolizing the business of selling public utility heat units for cooking and heating by the said city of Idaho Falls and of driving out of business the said East Idaho Gas Company." It is alleged that "the cost of manufacturing and distributing electric power and current for cooking and heating purposes" was far in excess of the price at which respondent was selling the same, and that after January 18, 1924, respondent sold electric power and current to the consumers in the city of Idaho Falls "at a price less than the actual cost of the same." The fifth amended complaint concludes with allegations that such actions on the part of respondent were taken in its proprietary capacity and not in its governmental capacity; that they were done for the purpose of creating a monopoly; and that appellant sustained damage in the sum of $...