Smith v. Otter Tail Power Co.

• Decision Date: 06 September 1963
• Docket Number: No. 9992,9992
• Citation: 123 N.W.2d 169,80 S.D. 327
• Court: South Dakota Supreme Court
• Parties: , 50 P.U.R.3d 267 Louis H. SMITH, Plaintiff and Respondent, v. OTTER TAIL POWER COMPANY, a Corporation, Defendant and Appellant.

Page 169

123 N.W.2d 169

80 S.D. 327, 50 P.U.R.3d 267

Louis H. SMITH, Plaintiff and Respondent, v. OTTER TAIL POWER COMPANY, a Corporation, Defendant and Appellant.

No. 9992.

Supreme Court of South Dakota.

Sept. 6, 1963.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, Field, Arvesen, Donoho & Lundeen, Fergus Falls, Minn., for defendant and appellant.

Louis H. Smith, Sioux Falls, for plaintiff and respondent.

ROBERTS, Judge.

This is a mandamus proceeding instituted in the Circuit Court of Moody County to compel defendant electric company to discontinue the furnishing of electrical light and power service to plaintiff. The application for the writ alleges that plaintiff is the owner of a farm in Moody County; that plaintiff no longer desiring such service from the defendant notified the company to discontinue the furnishing of electrical services to his farm; and that defendant has failed and refused to do so. On the application the court below issued its alternative writ of mandamus commanding the defendant to forthwith disconnect and discontinue all electrical service to the property of the plaintiff or to show cause why it had not done so.

In the answer to the alternative writ defendant asserts that mandamus is not the proper remedy to compel a public service corporation to discontinue electric service; that if an electric company may be compelled when the facts warrant in such a proceeding to discontinue service, plaintiff had no legal right to the relief sought; that defendant is a public service corporation engaged generally in the business of generating, distributing and selling electric energy to the public including the area of plaintiff's farm; that defendant made expenditures in extending and bringing electric service to plaintiff at that location; that defendant is informed and believes and therefore alleges that plaintiff has no intention or desire of discontinuing the receiving of electric service at his farm; that the Sioux Valley Empire Electric Association, an electric cooperative, cannot legally furnish electric service to plaintiff for the reason that he is now receiving central station service from another utility; and that the purpose of the present proceeding is 'to compel a disconnection of plaintiff's service from defendant, and thus create an artificial situation of the appearance of a new customer without electric service' entitling him to apply and receive electrical service from the cooperative mentioned.

Mandamus is a special proceeding as distinguished from an action. SDC 1960 Supp. 33.0102; Mitchell Nat. Bank v. Jones, 51 S.D. 202, 212 N.W. 919. It will not issue where there is a plain, speedy and adequate remedy available in the ordinary course of law. SDC 1960 Supp. 37.4502; Midwest Oil Co. v. Youngquist, 69 S.D. 461, 11 N.W.2d 662. Though issuance of a writ of mandamus is to a certain extent a matter of judicial discretion, a court cannot refuse a writ where one has a clear legal right with no other remedy to enforce it. City of Sioux Falls v. Sioux Falls Traction System, 53 S.D. 471, 221 N.W. 84. SDC 1960 Supp. 37.4501 provides: 'The writ of mandamus may be issued by the Supreme and Circuit Courts, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.'

A private corporation may be compelled by mandamus in the absence of other adequate remedy to perform a specific duty imposed upon it by law. 55 C.J.S. Mandamus Sec. 211. In Amidon v. Florence Farmers' Elevator Co., 28 S.D. 24, 132 N.W. 166, an action in mandamus to compel defendant corporation or its officers to transfer stock on its books where the title to the stock was not in dispute, this court observed: 'There is irreconcilable conflict in the decisions of the courts in the various states on the question as to whether or not mandamus is a proper remedy to compel the transfer of corporation stock on the books of the company. * * * At common law the remedy by mandamus would not lie to compel such transfer, but by reason of the statutory enlargement of the remedial scope of the mandamus procedure, and the statutes defining the rights of stockholders and duties of corporation officers of recent years many decisions are found holding that mandamus is a proper remedy.' In Sioux Falls v. Sioux Falls Traction System, supra, a city ordinance required defendant corporation which had been granted a franchise to operate a street railway in the City of Sioux Falls to pave when ordered by the city that portion of a street between rails and one foot on the outer side of each rail. This court held that the company could be compelled by mandamus to perform the legal duty imposed upon it by the ordinance. It was there observed that courts have long since departed from their former strict adherence to the old common law rule that mandamus is a prerogative writ being formerly confined exclusively to matters of a public nature. See also Howard v. City of Huron, 5 S.D. 539, 59 N.W. 833, 26 L.R.A. 493; Heintz v. Moulton, 7 S.D. 272, 64 N.W. 135. It is also said that when a trial court has exercised in the first instance its discretion relative to the issuance of a writ its judgment will not...