Mississippi Power & Light Co. v. Ross

• Court: Mississippi Supreme Court
• Writing for the Court: Ethridge, P. J.
• Citation: Mississippi Power & Light Co. v. Ross, 168 Miss. 400, 150 So. 830 (Miss. 1933)
• Decision Date: 27 November 1933
• Docket Number: 30863
• Parties: MISSISSIPPI POWER & LIGHT CO. v. ROSS

150 So. 830

168 Miss. 400

MISSISSIPPI POWER & LIGHT CO. v. ROSS

No. 30863

Supreme Court of Mississippi

November 27, 1933

Division B

Suggestion Of Error Overruled January 8, 1934.

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Suit by C. D. Ross against the Mississippi Power & Light Company. From an adverse judgment, defendant appeals. Reversed and bill dismissed.

Reversed and dismissed.

Green, Green & Jackson, and A. M. Nelson, all of Jackson, for appellant.

Appellee demanding receipt in full for not only amount due for gas but also for all sums claimed due appellant, as sales tax and others, was properly cut off.

Irwin v. Rushville Tel. Co., 161 Ind. 524; Central Louisiana Power Co. v. Thomas, 145 Miss. 352, 110 So. 674; Clayton v. Clark, 74 Miss. 499; Cooper v. Railroad Co., 82 Miss. 634.

Appellant as a public service corporation, must not discriminate in that exacted from its customers; for discrimination it is liable in damages.

Kolb Cleaning Co. v. Miss. Power & Light Co., 145 So. 910; Knotts v. Nolan, 218 N.W. 564; Sullivan v. Minneapolis, etc., 142 N.W. 6; Watkins Shippers & Carriers (4 Ed.), p. 128, sec. 61; State v. Public Service Commission, 34 S.W.2d 45; Southern, etc., Co. v. Beekman, 128 So. 71, 157 Miss. 646; Caston v. Hudson, 104 So. 698, 139 Miss. 890; Hinds County Water Co. v. Scanlan, 132 So. 567, 159 Miss. 757; Ladner v. Miss. Public Utilities Co., 158 Miss. 678; Griffin v. Goldsboro Water Co., 41 A. 240; Wieman Pub. Service Corporation, sec. 1396; Pond Public Utilities (3 Ed.), sec. 295; Cooper v. Railroad Co., 82 Miss. 644, 35 So. 162.

When Ross demanded a receipt in full, when he was paying only the franchise rate, without the sales tax, he would thereby have obtained on behalf of himself and all other customers similarly situated an absolute discharge upon the part of this utility to collect, if it so could, whereof later, this sales tax, approximately eighty thousand dollars a year, and would have compelled appellant to make refund of all amounts collected by it from cooperating customers (and by making appellant thus do would have made all utilities do the like), and thus without a judicial hearing as to this appellant subverted the sales tax by appellant agreeing to forego that by law to it given -- to get what--about twenty dollars from Ross.

62 C. J. 677; Bacon v. Conn, Sm. & Mar. Chan. 348.

A material fact misrepresented by appellee vitiated mandatory injunction granted without notice.

32 C. J. 403; Black v. Huggins, 2 Tenn. Ch. 780; Hilton v. Granville, 4 Beav. 130, 49 Reprint 283; Burbank v. Webb, 5 Man. 264; 14 R. C. L. 331; Mining Co. v. Union, 51 F. 264; Endicott v. Nathews, 9 N.J.Eq. 117; Board v. Authority, 32 Ch. Div. 421.

Mandatory injunction without notice is highly improper.

Pearman v. Wiggins, 103 Miss. 4, 60 So. 1; Parker v. Southern Ry. Co. (Miss.), 71 So. 913; Morris v. Tuessell, 109 So. 855; Miles v. Fink, 119 Miss. 147, 80 So. 533; Gulf Coast Co. v. Bowers, 80 Miss. 570, 32 So. 113; Montgomery v. Hollingsworth, 90 So. 80.

Court is without power to render a declaratory judgment.

Willing v. Auditorium Co., 277 U.S. 289, 72 L.Ed. 885; State Teachers' College v. Morris, 144 So. 374, 164 Miss. 158.

W. H. Cox, of Jackson, for appellee.

The appellee had vested right to gas from utility strictly at franchise rate.

A. L. I. Contracts, secs. 138, 139; Y. & M. V. R. R. Co. v. Sideboard, 161 Miss. 4, 103 So. 669; 1 Pond on Public Utilities (1932 Ed.), secs. 251, 260.

By the acceptance of the franchise by the appellant, and its entering upon the performance thereof, the appellee acquired a vested right to natural gas service in accordance with the provisions of said franchise, and the right to be served at said rate was fixed by said franchise contract.

Griffith v. Vicksburg Water Works Co., 88 Miss. 371, 40 So. 1011; 1 Pond on Public Utilities (1932 Ed.), secs. 121 and 123; R. R. Comm v. Los Angeles R. R. Co., 74 L.Ed. 234; United Fuel Co. v. R. R. Comm., 73 L.Ed. 390; New Orleans Gas Co. v. La. Light Co., 29 L.Ed. 516; Durham Co. v. City, 67 L.Ed. 580; Columbus Railway Power & Light Co. v. City of Columbus (Ohio), 63 L.Ed. 669.

The appellant was without authority to demand any charge or rate in excess of the maximum rate provided by the franchise.

Southern Ry. Co. v. Buckeye Cotton Oil Co., 126 Miss. 562, 89 So. 228; M. & O. R. R. Co. v. Jensen, 162 Miss. 741, 139 So. 840; Southern Ry. & Light Co. v. Beekman, 157 Miss. 346, 128. So. 71; Sec. 182, Mississippi Constitution of 1890.

The franchise must be enforced as written. The court will not make a different contract for appellant enabling it to pass the tax on to the consumer, and then enforce it.

Goff v. Jacobs, 164 Miss. 817, 145 So. 728.

Utility was properly enjoined to restore gas service wrongfully discontinued and properly assessed with damages therefor.

32 C. J., Injunctions, secs. 348, 349, 370, 372 and 373; Louisville Gas Co. v. Alexander (Ky.), 36 L. R. A. 125; L. & N. R. R. Co. v. Pittsburgh (Ky.), 55 L. R. A. 601; O'Neill v. Citizens Pub. Service Co. (S. C.), 70 A. L. R. 887; Pitts v. Carothers, 152 Miss. 694, 120 So. 830; 32 C. J., pp. 53-54; Cumberland Telephone Company v. Hobart, 89 Miss. 255, 42 So. 349; Miss. Valley R. R. Co. v. Sanders, 87 Miss. 607, 40 So. 163; Godfrey v. Meridian Ry. & Light Co., 101 Miss. 565, 58 So. 534; Ill. Central v. Ramsey, 157 Miss. 83, 127 So. 725; McDonald v. Moore, 159 Miss. 326, 131 So. 824.

Attorney's fees are recoverable, under the Mississippi rule, in cases in which exemplary damages are given.

Y. & M. V. v. Consumers Ice & Power Co., 109 Miss. 43, 67 So. 657; Town of Indianola v. Woods, 118 Miss. 738, 80 So. 7.

Argued orally by Garner Green, for appellant, and by Harold Cox, for appellee.

OPINION

Ethridge, P. J.

C. D. Ross was complainant in the court below and secured a mandatory injunction, without notice and hearing, against the Mississippi Power & Light Company, prohibiting it from cutting off the gas service of said C. D. Ross, and to compel the acceptance of thirty cents per thousand cubic feet, without the addition of the two per cent. sales tax imposed by law.

The bill alleges that the Mississippi Power & Light Company was under contract with the city of Jackson and the public to charge, not in excess of thirty cents per thousand cubic feet; that the complainant, between July, 1932, and February 15, 1933, had used, in his home in the city of Jackson, sixty-seven thousand six hundred cubic feet of natural gas, for domestic purposes, the amount for each month being set out, and, that he only owed the company twenty dollars plus accrued interest, exclusive of the controverted item of the two per cent. sales tax, which the complainant had tendered in cash, in full payment of said bill; but that the defendant wrongfully refused to accept said payment unless the complainant would pay, also, an additional two per cent. state sales tax. This the complainant refused to do, whereupon the defendant threatened to cut off the service of gas unless said additional amount of two per cent. state sales tax was paid in addition to the proper charge fixed by the franchise. The bill also alleges that the complainant tenders in his bill, and stands ready, willing, and able to pay the franchise rate, but refused to pay defendant the two per cent. sales tax.

It is further alleged in the bill that after said tender, the defendant wrongfully and unlawfully cut and discontinued its supply of natural gas to the complainant, and closed its gas service pipes to the home of the complainant because of his refusal to pay the two per cent. sales tax, and that the complainant was solely dependent on the continuance of said service for cooking, heating, and personal use, all of which is and was well known to the defendant, and by reason of which complainant was damaged in the amount of one hundred fifty dollars. The bill prayed for an injunction ordering the resumption of gas service to the complainant at the franchise rates, and that such injunction might be made permanent.

The mandatory injunction was issued on the execution of a bond in the sum of three hundred dollars, enjoining the Mississippi Power & Light Company from collecting the two per cent. sales tax, and directing it to immediately resume and restore service of natural gas to the said C. D. Ross.

Service was thereupon restored and the defendant, Mississippi. Power & Light Company, filed an answer, setting up that it had not refused to accept the amount due from C. D. Ross for gas at the rate of thirty cents per thousand cubic feet; but, on the contrary, had offered to accept said money, reserving the right to both parties to contest the right of the company to charge the two per cent. sales tax to the consumer.

On the hearing, it appeared, without dispute, that the defendant company had offered and agreed to accept the amount of the bill at the rate of thirty cents per thousand cubic feet without prejudice to the rights of either party, and to continue the service on the payment of said franchise rate until the right to charge the two per cent. sales tax was adjudicated.

The complainant testified that he tendered the franchise rate without the tax, but that the defendant would not accept the amount as in full, and refused to give him a receipt in full as demanded by him.

The proof shows, without dispute, that had the complainant paid the thirty cents per thousand cubic feet and accepted the receipt for that sum without prejudice to the rights of either party to have the matter...