State ex rel. Shewalter v. Jones
| Decision Date | 07 February 1910 |
| Citation | 125 S.W. 1169,141 Mo.App. 299 |
| Parties | STATE OF MISSOURI ex rel. GEORGE E. SHEWALTER, Appellant, v. LLEWELLYN JONES et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
Judgment reversed and cause remanded. (with directions).
Olney Burris and J. D. Shewalter for appellant.
(1) It is not permissible, either at common law or under the statute, to traverse the allegations of the petition, and then, as new matter, confess and seek to avoid them; and where this is attempted, plaintiff is entitled to judgment on the pleadings. Bank v. Stone, 93 Mo.App. 292, and authorities there cited; Price v. Mining Co., 83 Mo.App. 474; State ex inf. v. Jockey Club, 200 Mo. 64. (2) Where demand for payment is made and no refusal, but a failure to pay solely for the want of a blank check (that being the usual course of payment, check being good and no objection on that account), a reasonable time is allowed under all the circumstances, to reach the office and make payment. Turning off the light without affording such opportunity was illegal and arbitrary. Woods v Dial, 12 Ill. 72. (3) The court refused instruction No 1 to that effect, and while instructions in such cases are not usual, it showed the view of the law taken by the lower court. Relator stated that she would pay the bill, did so the same day, and under the evidence at the earliest reasonable moment, and yet the light was cut off. (4) Where, as in this case, all dues have been paid, a demand of any additional sum as a penalty or fine, adjudged, fixed and determined by one of the parties to the contract, as a condition precedent to the restoration of the consumer, is illegal. The proposition needs no authority; but see: State ex rel. v. Kinloch Tel. Co., 93 Mo.App. 361, and cases in opinion; Water Co. v. State, 46 Neb. 194, 50 Am. St. Rep. 610, 64 N.W. 714; Turner v. Water Co., 171 Mass. 329, 68 Am. St. Rep. 432, 50 N.E. 634; Shepard v. Gas Co., 6 Wis. 653, 70 Am. Dec. 479, points 5 and 6, l. c. 484; Water Co. v. Wolfe, 63 Am. St. Rep. 843; Smith v. Water Co., 16 So. 123. (5) Mandamus is the proper remedy. In fact there is no other adequate remedy, except restoration. State ex rel. v. Water Co., 52 Mo.App. 310; State ex rel. v. Kinloch Tel. Co., 93 Mo.App. 361. And respondents, though wrongfully, are in actual control. They cut it off and they alone can restore it.
C. C. Madison and A. C. Southern for respondents.
(1) Section 5845, Revised Statutes 1899, places the control of the electric light plant with the city council and authorizes it to operate the same and make regulations. The three defendants who are members of the committee, are of course, answerable as members of the council but they are not brought into court in that capacity and are only a minority of that body. The council is the body charged with the duty and responsibility of operating the plant and its functions in this respect are not merely "legislative" as relator contends. The point respondents make upon the question of improper parties defendant, is not merely a technical one, for if they are not vested with the authority to act then of course relator's case must fail on its merits. Relator is precluded from asking the relief sought by the very allegations of the writ that respondents are acting without authority. If it was sought to prevent them from continuing to act quite another question would be presented but here we have the remarkable situation of a party saying "you are doing something you have no right to do" and in the next breath demanding that those very illegal acts be continued. Counsel cite authorities holding that the suit may be maintained against the officers "whose duty it is to act." We quite agree with learned counsel upon that proposition but fail to follow them in the application of the rule. In order to sustain their position they must not only nullify the statute above cited but must also wipe out the statements of fact set forth in the writ. State ex rel. v. Gentry, 112 Mo.App. 598. (2) That mandamus will not lie unless appellant shows a clear right, is a familiar elementary principle. Mandamus will not issue when the official act to be performed depends on the act, approval or co-operation of a third person, not a party. 26 Cyc., p. 165 (e). (3) Relator is not entitled to relief in any event, since she has failed to comply with the requirements of a reasonable ordinance. There is no allegation or proof upon which the court would be justified in finding this ordinance invalid. Under the pleadings its invalidity is not an issue. Being a matter of public concern, affecting all the taxpayers and consumers of electricity its provisions could not be waived by any subordinate even by express agreement. It is claimed that a sum in excess of the amount allowed by the ordinance was demanded but this is of no avail since there is no attempt to show that relator ever offered to comply with it. In order to invoke the protection of the ordinance it is essential that a tender of the proper amount be made. McDaniel v. Waterworks Co., 48 Mo.App. 280.
The city of Independence is engaged in the business of providing electric light to its citizens. Relator, who used the light in her home, became delinquent in the payment of the bills for two months and on account of the delinquency, the superintendent of the business shut off the electricity and discontinued the service. Relator at once paid the bills and demanded the restoration of the service, but the superintendent refused compliance with the demand except on condition that relator pay a penalty of one dollar. Relator refused and brought suit by mandamus against the respondents to compel them to restore the light. An alternative writ was issued, respondents filed their return, the cause was tried, judgment was entered in favor of respondents and relator appealed.
The evidence of relator tends to show that in discontinuing the service, respondents acted arbitrarily and oppressively but her evidence is opposed by evidence of respondents to the effect that this act of the superintendent was reasonable and proper and was performed pursuant to rules and regulations prescribed by the city. In the view we take, all respondents contend for on this branch of the case may be conceded and we shall assume, arguendo, that relator was delinquent; that under the rules prescribed by ordinance, the superintendent was compelled to discontinue the service and that in so doing, he acted with propriety and without oppression.
An ordinance of the city provided ...
To continue reading
Request your trial