Helena Water Co. v. City of Helena

• Citation: 277 F. 66
• Decision Date: 01 January 1921
• Docket Number: 493.
• Parties: HELENA WATER CO. v. CITY OF HELENA et al.
• Court: U.S. District Court — Eastern District of Arkansas

277 F. 66

HELENA WATER CO. v. CITY OF HELENA et al.

No. 493.

United States District Court, E.D. Arkansas, Eastern Division.

October Term, 1921

Moore Smith, Moore & Trieber, of Little Rock, Ark., for plaintiff.

Fink &amp Dinning, of Helena, Ark., for defendants.

TRIEBER District Judge.

The plaintiff seeks a temporary injunction to restrain the defendants, the city, and its officials from enforcing an ordinance fixing rates for supplying water to the citizens of the city, which are alleged to be confiscatory.

A preliminary question arising is whether, under the act of the General Assembly of the state of Arkansas of February 15 1921 (Act 124, Acts of Ark. 1921, pp. 177, 202), the rule of law established in Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 Sup.Ct. 67, 53 L.Ed. 150, and cases following it or that in Bacon v. Rutland R.R., 232 U.S. 134, 34 Sup.Ct. 283, 58 L.Ed. 538, and authorities following that case, controls.

The importance of the question will be apparent from the fact that, if the court should erroneously hold that the Prentis Case controls, and for this reason refuse to grant the temporary injunction, until plaintiff has exhausted its remedy of appeal provided by the act, and the courts of the state should hold that the rates are not confiscatory, that determination would become res judicata. Detroit, etc Ry. v. Michigan R.R. Commission, 235 U.S. 402, 35 Sup.Ct. 126, 59 L.Ed. 288, affirming the decision of the District Court reported in 203 F. 864.

The provision of the act of the General Assembly vesting the power in municipal councils to establish rates is section 17, and need not be copied, as it vests the power usually vested in commissions and cities to establish rates to be charged by public utilities. The section providing for appeals from the action of the council of a city exercising this power is found in section 19 of the act. That section reads:

'Sec. 19. Appeal from Action of Municipal Council or City Commission. Any person, firm, company, or corporation aggrieved by any rate fixed by said municipal council or city commission or by any order or ordinance made in pursuance of this act, shall have the right to have said action on the part of such municipal council or city commission reviewed as to its legality, validity, fairness and reasonableness, by the circuit court of the county in which said municipal council or city commission is located (or where there are two circuit courts in said county, then in the circuit court in the district where such council or commission is situated). Said review, however, by said circuit court shall be made; provided, and upon condition, that the applicant files in said court or in the office of the clerk thereof within sixty (60) days after making of such order or ordinance or rate as to which the appeal is desired, its petition or complaint as in other cases setting out the order or ordinance or rate or other matter therein complained of, therein alleging according to the usual rules of pleading facts showing that the applicant is entitled to the relief therein prayed, upon which complaint summons shall be issued and served in the manner and for the time as in other circuit cases; the said appeal in the circuit court shall proceed de novo. The court in reviewing the action of the council or commission shall hear evidence and determine what rates would afford the appellant valid and reasonable compensation for the services rendered, and shall enter an order setting out such rates and cause the same to be certified to the council or commission and such council or commission shall thereupon fix such rates as shall be in conformity with the finding of the court; provided, either party shall have the right to appeal to the Supreme Court within thirty days from the rendition of such order, in which event the said council or commission shall await the further orders of the court. The circuit court shall have the power to require all proof to be taken in the form of depositions, if so desired by it, and to appoint a master to take the proof and make a finding and recommendation, subject to the approval of the court. The circuit court or the judge thereof in vacation of the county in which such municipality is located, shall upon petition therefor, have the power and is hereby delegated the duty to issue a preliminary restraining order with or without bond as may seem proper, restraining the violation of any order or ordinance made by any municipality under this act, or restraining the violation of any duty on the part of any public utility prescribed by this act or any municipality hereunder and upon final hearing upon such petition to make permanent on the part of said court, said preliminary restraining order.'

It will be noticed that this section requires the public utilities to file an ordinary complaint in the circuit court, that the hearing be de novo, and authorizes the court 'to determine what rates would afford the appellant valid and reasonable compensation for the services rendered, and shall enter an order setting out such...