Minneapolis General Elec. Co. v. City of Minneapolis

• Decision Date: 22 December 1911
• Citation: 194 F. 215
• Parties: MINNEAPOLIS GENERAL ELECTRIC CO. v. CITY OF MINNEAPOLIS.
• Court: U.S. District Court — District of Minnesota

194 F. 215

MINNEAPOLIS GENERAL ELECTRIC CO. v. CITY OF MINNEAPOLIS.

United States Circuit Court, D. Minnesota, Fourth Division.

December 22, 1911

The Walker ordinance, referred to in the opinion, fixed the maximum rate to be charged by public service corporations for the distribution of electricity in the city of Minneapolis but prescribed no penalty. The Heywood ordinance referred to in the opinion is as follows:

'An ordinance requiring public service corporations using the city streets or alleys for distribution of electricity for light, heat and power to install its service upon proper demand.

'The city council of the city of Minneapolis do ordain as follows:

'Section 1. That every public service corporation now or hereafter using the streets or alleys of the city of Minneapolis, for the distribution of electricity for light, heat and power, shall install its service upon demand from any citizen, subject to the ordinances regulating such installation, provided that such corporation may, if it deems itself insecure, require the deposit of an amount of money equal, at the rates established by the city council, to the probable monthly value of the services so demanded. Such service when so installed shall not be discontinued by such public service corporation except by consent of the city council or by request of the consumer.

'Sec. 2. In case any such public service corporation shall have discontinued its services within ninety days prior to the adoption of this ordinance, without the consent of the consumer, it is hereby required to restore said service, upon demand of the said consumer, provided the said consumer, if requested by said corporation, shall deposit with the city clerk a good and sufficient bond indemnifying it against any loss on account of electricity furnished or services rendered or to be furnished or rendered, at the legal rates established by said city council by ordinance adopted June 28th, 1907.

'Sec. 3. 0/00 Any such public service corporation, or any officer or agent thereof, who shall fail or neglect to comply with the requirements of this ordinance, shall be punished, on conviction thereof, by a fine not exceeding $100 for each offense, or by imprisonment not exceeding 90 days.

'Sec. 4. 0/00 This ordinance shall take effect and be in force from and after its publication.'

Koon, Whelan & Hempstead and Brooks & Jamison, for complainant.

Daniel Fish, for defendant.

WILLARD District Judge (orally).

If the case made by this bill related only to the ordinance of June 28, 1907, which is called the Walker ordinance, I should deny the motion for a temporary injunction. But the bill is not so limited. It embraces, also, the ordinance of September 29, 1911, which is called the Heywood ordinance. Upon this motion for a temporary injunction the decision itself will be limited to the latter ordinance. That ordinance is said to be void for two reasons. One is because it puts in force or attempts to put in force the rates prescribed by the Walker ordinance, which ordinance it is claimed by complainant is void; and the other is because, even assuming that the Walker ordinance is valid, nevertheless the Heywood ordinance deprives complainant of its property without due process of law. So far as the validity of the Walker ordinance is concerned, as bearing upon the Heywood ordinance, the only question which the case presents is whether the council had any authority to pass such an ordinance. The question as to whether the rates fixed by that ordinance are reasonable or unreasonable will never in my judgment be an issue in this case, either now or upon the final hearing. If the city council had no power to to pass an ordinance regulating the rates, that would end the case, and it would be of no consequence whether the rates fixed by the ordinance were reasonable or unreasonable. If, on the contrary, the city council had power to pass the ordinance, then no case is presented by this bill for an adjudication upon the question as to whether the rates are reasonable or unreasonable. There is no allegation in the bill that these rates are confiscatory, and no allegation in the bill that the ordinance of June 28, 1907, deprives the complainant of its property without due process of law.

We come, then, so far as the Walker ordinance is concerned, and so far as the allegations in the bill are concerned, to the bald case of a suit in which it is asked that the court determine that certain rates fixed by a council which has power to regulate rates are reasonable when it is not claimed that they are confiscatory. It is settled beyond controversy that a court has no power to fix rates for the future. If the rate-making power has authority to determine rates, then those rates must stand, so far as the court is concerned, unless they are confiscatory, unless they deprive the complainant of its property without due process of law, and there is no claim that they do in this case. So I do not see how the question of the reasonableness of these rates will ever be an issue here.

But the question is whether the Heywood ordinance is void because it attempts to put in force the Walker ordinance which it is claimed is also void. It is insisted by complainant that that is an issue in the case, and I see no escape from a decision upon this question by the court, although there may be other grounds upon which the validity or the invalidity of the Heywood ordinance may be determined. That is one ground. As has been said, the two ordinances in this respect are so interwoven that it is impossible to hold the Heywood ordinance valid, as far as rates are concerned, if the Walker ordinance is invalid. While I have no intention of making any decree declaring the Walker ordinance void, yet I do consider it my duty in this case to express an opinion upon the validity or invalidity of that ordinance, because it affects the validity or invalidity of the Heywood ordinance.

The only question necessary to consider is whether the Legislature has ever conferred upon the city power to regulate the rates of this company. Upon questions of this kind I call attention to the case of Omaha Electric Light & Power Company v. City of Omaha, 179 F. 455, 459, 102 C.C.A. 601, 605, decided by the Court of Appeals of this circuit. It was said:

'Legislative grants of power to municipal corporations must be strictly construed, and cannot operate as a surrender of legislative power except so far as expressly delegated or as indispensably necessary to the exercise of some other power which has been expressly delegated.'

In support of that proposition, a large number of cases are cited. That doctrine, of course, is controlling upon this court.

No section of the charter has been cited by defendant which expressly delegates this power. No section of the charter is cited by defendant which shows that this power to regulate the rates of this company is indispensably necessary to the exercise of any other power granted by the Legislature to the city. In fact, the only section and the only law to which my attention has been called by the defendant is section 2842 of the Revised Laws of Minnesota. It is sufficient to say that that section does not come anywhere near the requirements of this statement by the Circuit Court of Appeals in the Omaha Case. In my opinion the city council had no authority and has no authority now to determine the rates to be charged by this company. It having no power to determine the rates to be charged by the company, it follows that the ordinance of 1911, which compels the company to furnish service at the rates fixed by the ordinance of 1907, cannot be enforced.

But, even if the 1907 ordinance were valid, there are grounds which in my opinion make the ordinance of 1911 void. The ordinance provides in the first place:

'That every public service corporation now or hereafter using the streets or alleys of the city of Minneapolis, for the distribution of electricity for light, heat and power, shall install its service upon demand from any citizen, subject to the ordinances regulating such installation,' etc.

There is nothing in that section of the ordinance, or in any other part of the ordinance, which limits the operation of the first section to those parts of the city to which the conduits or lines of the company are now extended. It appears that there are large districts in the city where these conduits do not reach, and that they are sparsely populated districts. If that section is to be given its plain meaning, it indicates that any person in the extreme borders of the city can make a demand upon the company for installation of its service, although he may be miles from any conduit or line. It would then be its duty to obtain an order from the city council to extend its lines to that section, and the company would be compelled to comply with this demand under the penalty provided by the ordinance. The Supreme Court in the case of Northwestern Telephone Exchange Co. v. City of Minneapolis, 81 Minn. 140, 83 N.W. 527, 86 N.W. 69, 53 L.R.A. 175, indicates that such a request is unreasonable, and that an ordinance containing such a provision is void. This ordinance further provides that installation shall be made upon 'the deposit of an amount of money equal, at the rates established by the city council, to the probable monthly value of the services so demanded. ' It seems to be agreed by both sides that that requires a deposit of the value of only one month's service. The ordinance then continues:

'Such service when so installed shall not be discontinued by such public service corporation except by consent of the city council or by request of the consumer.'

That ordinance can mean nothing more than that by...