Devils Lake Steam Laundry, a Corp. v. Otter Tail Power Company, a Corp.
| Decision Date | 18 February 1939 |
| Docket Number | 6547 |
| Citation | 284 N.W. 417,69 N.D. 190 |
| Court | North Dakota Supreme Court |
Rehearing Denied March 15, 1939.
Syllabus by the Court.
1. Where the Board of Railroad Commissioners, in the exercise of its statutory rate-making power, establishes a rate schedule for electrical service provided by a public utility, and where thereafter on application of the utility a lower rate schedule " defined as a temporary rate schedule, to be effective up to and including (a day certain) and to terminate as of that date" is put into effect, upon the expiration of the period covered by the temporary schedule the general rate schedule theretofore established automatically becomes effective without further action.
2. Chapter 207, Session Laws 1937, which provides: " No change shall be made by any public utility in any tariffs rates, joint rates, fares, tolls, schedules, or classifications, or service which have been filed and published by any public utility, except after thirty days' notice to the Commissioners, which notice shall plainly state the changes proposed, provided, that the Commissioners may, in their discretion and for good cause shown, allow changes upon less than the notice herein specified either in particular instances or by a general order applicable to special or peculiar conditions or circumstances." is considered and, for reasons stated in the opinion, it is held that the same has no application in the instant case.
Appeal from the District Court, Ramsey County; P. G. Swenson, Judge.
Action by the Devils Lake Steam Laundry against the Otter Tail Power Company to restrain the defendant from cutting off defendant's electrical service to plaintiff on account of nonpayment of bill therefor at alleged excessive rates sought to be charged by defendant. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment reversed, and case remanded, with directions to enter judgment for defendant.
Statute providing that no change in utility rates shall be made by board of railroad commissioners without 30 days' notice except in particular instances did not require 30 days' notice before old rate schedules for electric service automatically became effective under order of commissioners establishing temporary schedule, which was to be effective only until certain date. Laws 1937, c. 207.
Traynor & Traynor and Field & Field, for appellant.
The award of arbitrators, acting within the scope of their authority, determines the rights of the parties as effectively as a judgment secured by regular legal procedure and is as binding as a judgment until it is regularly set aside or its validity questioned in a proper manner. 2 R.C.L. 386.
It is the general rule that a valid award operates to merge and extinguish all claims embraced in the submission. 5 C.J. 163.
Common-law arbitration is valid and binding in North Dakota. Johnson v. Wineman, 34 N.D. 116, 157 N.W. 679.
Rates filed and approved by the Railroad Commission are the legal rates which must be charged by the utility and paid by the customer, and such rates cannot be changed by agreement, mistake, tort, estoppel, waiver, or other acts of utility and customer. Texas & P.R. Co. v. Mugg & Dryden, 202 U.S. 242, 50 L. ed. 1011; Pennsylvania R. Co. v. International Coal Min. Co. 230 U.S. 184, 57 L. ed. 1446; Keogh v. Chicago & N.W.R. Co. 260 U.S. 156, 67 L. ed. 183; Pillsbury Flour Mills Co. v. Great Northern R. Co. 25 F.2d 66; Updike Grain Co. v. Chicago & N.W.R. Co. 35 F.2d 486; Pennsylvania R. Co. v. Marcelletti, 256 Mich. 441, 240 N.W. 4; Foley v. Chicago G.W.R. Co. 205 Iowa 72, 217 N.W. 563; New York C.R. Co. v. Frank H. Buck Co. 2 Cal.2d 384, 41 P.2d 547.
Contracts to put lower rates into effect, even though relied upon, are of no legal effect and rates are not effective until filed with and approved by the regulatory commission. Kanotex Ref. Co. v. Atchison, T. & S.F.R. Co. 142 Kan. 139, 46 P.2d 16; Oregon-Washington R. & Nav. Co. v. Cascade Contract Co. (Or.) 197 P. 1085.
Courts will not entertain collateral attacks upon rates fixed by regulatory commissions in suit alleging that rates are unreasonable, confiscatory or discriminatory. Texas & P.R. Co. v. Abilene Cotton Oil Co. 204 U.S. 426, 51 L. ed. 553; J.C. Famechon Co. v. Northern P.R. Co. 11 F.2d 312; Carrollton Excelsior & Fuel Co. v. New Orleans & N.E.R. Co. 69 F.2d 691; La Crosse v. Wisconsin-Minnesota Light & P. Co. 181 Wis. 151, 194 N.W. 47.
Certificate of the regulatory body proves and determines the legal rates. Michigan C.R. Co. v. Claspy, 247 Mich. 549, 226 N.W. 216.
F. T. Cuthbert, for respondent.
Burke, J., did not participate.
Plaintiff brought this action to restrain the defendant from cutting off its electrical service to the plaintiff on account of the nonpayment of the bill therefor at the alleged excessive rates sought to be charged by the defendant. The defendant, answering, denied the allegations of the complaint with respect to the overcharge and counterclaimed to recover the amount of its bill for the service furnished at the disputed rates. The trial court found for the plaintiff. Judgment was entered accordingly and the defendant appeals.
The plaintiff is engaged in operating a laundry and dry cleaning plant in the city of Devils Lake. The defendant is a corporation engaged in the business of manufacturing, distributing, and selling electricity for light and power purposes. For some time prior to July 1, 1936, there had been a controversy between the plaintiff and the defendant and others as to the rates to be charged by the defendant for its service. During this time there was a movement on foot in the city of Devils Lake to have the city build and operate a power and light plant and an election was held whereby the voters empowered the city commission to proceed in this direction. In July, 1936, the plaintiff and defendant, aiming at an adjustment and settlement of their controversy as to the rates to be charged, entered into a written arbitration agreement whereby the matter of the rates for the light and power to be furnished to the plaintiff was to be submitted to arbitrators and the arbitrators were agreed upon and named. One of them was C. W. McDonnell, a member of the Board of Railroad Commissioners. Pursuant to the terms of this agreement the arbitrators convened, made such investigation as they deemed proper at a hearing held for that purpose, and in August 1936 agreed upon and signed a written award in which they stipulated that they had Then followed the rates determined upon together with other provisions relative to the furnishing and discontinuing of the service and the manner in which the same should be billed and paid for.
Thereafter and on the 28th day of September, 1936, the defendant filed with the Board of Railroad Commissioners an electric rate schedule for Devils Lake in accordance with the written award of the arbitrators, which also was filed. This schedule was approved by the board on November 7, 1936, to be effective up to and including July 18, 1937, and to terminate automatically as of that date. In the meantime, after this award was made and prior to the time when...
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Devils Lake Steam Laundry v. Otter Tail Power Co., 6547.
... ... G. Swenson, Judge.Action by the Devils Lake Steam Laundry against the Otter Tail Power Company to restrain the defendant from cutting off defendant's electrical service to plaintiff on account ... ...