Louisville Gas & Electric Co. v. Dulworth
| Decision Date | 20 June 1939 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Louisville Gas & Electric Co. v. Dulworth. |
1. Public Service Commissions. — The Public Utility Commission Act confers upon the Public Utilities Commission of Kentucky primary jurisdiction over public utilities with respect to tolls, schedules, rates, services, etc., generally, but it does not expressly nor by inference or implication vest the commission with exclusive jurisdiction on complaint made by an individual seeking restoration of service (Ky. Stats., secs. 3952-1 to 3952-61).
2. Public Service Commissions. — Circuit court had jurisdiction, as against contention that public utilities commission had exclusive jurisdiction, of proceeding for mandatory injunction to compel electric company to restore electric service to customer (Ky. Stats., secs. 3952-1 to 3952-61).
3. Electricity. — Evidence sustained judgment granting mandatory injunction and compelling electric company, which had discontinued electric service to customer at his place of business because of alleged discovery that methods had been employed which interfered with proper metering of electric service, to restore electric service to premises conditioned upon his paying to electric company cost of installation of protective device designed to prevent tampering with meter (Ky. Stats., secs. 3952-1 to 3952-61).
Appeal from Jefferson Circuit Court.
Peter, Heyburn, Marshall & Wyatt for appellant.
Leo J. Sandmann for appellee.
Before James Garnett, Judge.
Affirming.
On or about October 28, 1937, the Louisville Gas & Electric Company, a corporation, hereinafter referred to as the company, discontinued electric service to William Dulworth at his place of business located at 728 West Market Street in Louisville.
Thereupon he filed a petition for a mandatory injunction alleging in substance that under the contract the company had agreed to render electrical service to him at his place of business and that he had complied with all the terms and conditions of the contract and had promptly paid his bill each month when due, including service for the month of October, 1937, but that on the 28th of that month the company without prior notice or warning and in violation of his rights had cut off his electric service; that he had demanded that the service be restored but that the company had refused and continued to refuse to do so in violation of their contract and agreement with him.
The company filed a special demurrer challenging the jurisdiction of the court but that and a general demurrer to the petition were overruled. The company's answer consisted of a plea to the jurisdiction of the court, a traverse of the material parts of the petition and as an affirmative defense alleged in effect that it discontinued electric service to appellee at his place of business because of discovery by it that methods had been employed on the premises of plaintiff which interfered with the proper metering of electric service theretofore rendered him.
Judgment was entered sustaining plaintiff's motion for a temporary injunction mandatorily ordering the company to restore electric service to his premises conditioned upon his paying to the company $25 to cover cost of installation of protective devices designed to prevent tampering with the meter and using current that had not been registered and also requiring him to execute bond in the sum of $500. Upon compliance by plaintiff with the requirements of the order the company reconnected and thereafter continued service to him. On final hearing plaintiff's motion for a permanent mandatory injunction was sustained and the company is appealing.
It is first contended by appellant that the Public Service Commission Act of 1934, Kentucky Statutes, 3952-1 to 3952-61, which created the Public Service Commission of Kentucky and defined its powers and duties, invests such commission with exclusive jurisdiction over the matters in controversy. We shall refer to various portions of the act by subsections as they appear in the statute. In support of the contention that the public service commission and not the court has jurisdiction over matters of this character, portions of various subsections of the Public Service Commission Act and authorities from this and other jurisdictions are cited.
Taking up first the foreign cases relied on by appellant, we find that one holds in effect that the court and not the public service commission has jurisdiction to construe the commission's orders. Another holds that original jurisdiction to determine questions as to which if any of the several rates is applicable to purchasers of electricity from public utilities under particular conditions and circumstances surrounding its use, is left with the railroad and public utility commissions. A third holds that a contract regarding schedules of rates and charges is subject to the supervision of the utility commission. A fourth and the one at first giving us greatest concern is that of Hickey v. Philadelphia Electric Company, 122 Pa. Super. 213, 184 A. 553, wherein Hickey sought to recover from a utility company a sum which he had paid it to prevent discontinuance of service to him that had been demanded to reimburse the company for damage done to a meter which it was claimed Hickey had tampered with and also as compensation for unmetered current used. It was held that the public service commission alone had primary jurisdiction of the matter. The opinion referred to, supra, is also reported in 14 P.U.R., N.S., 349. An examination of that opinion will disclose that it is provided in substance by Article 5, Section 5, of the Pennsylvania Public Service law, 66 P.S. Pa., Section 511, that if the commission, after hearing upon its own motion or upon complaint, shall determine, inter alia, that any act then done or omitted to be done, or any regulation or practices enforced by any public utility in relation to service rendered, are unjust, unreasonable, or unjustly discriminatory, the commission shall have power and authority to order reparation and direct payment to any complainant of damages sustained in consequence of such unjust, unreasonable, or unlawful acts, regulations or practices. That section further provides:
"No action shall be brought in any court on account of any of the wrongs or injuries referred to in this section, unless and until the commission shall have determined that the * * * regulation * * * practice, act or omission in question was unjust, unreasonable, or unjustly discriminatory * * * and, then, only to recover such damages as may have been awarded and directed to be paid by the commission in said order."
Therefore, it is apparent that none of the foreign cases cited sustain appellant's contention.
Appellant also cites and relies on Smith v. Southern Bell Telephone & Telegraph Company, 268 Ky. 421, 104 S.W. (2d) 961, 962. In that case as appears from the opinion, the circuit court clerk of Pike county instituted an action to compel the telephone company to furnish service to his public office in the following manner:
"(1) Telephone service confined to Pikeville exchange, with no toll calls either inbound or outbound,...
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