State ex rel. v. The Public Serv. Comm.

• Decision Date: 03 December 1945
• Docket Number: No. 20665.,20665.
• Citation: 191 S.W.2d 307
• Parties: STATE EX REL. FEDERAL RESERVE BANK OF KANSAS CITY, v. THE PUBLIC SERVICE COMMISSION.
• Court: Missouri Court of Appeals

191 S.W.2d 307

STATE EX REL. FEDERAL RESERVE BANK OF KANSAS CITY, v. THE PUBLIC SERVICE COMMISSION.

No. 20665.

Kansas City Court of Appeals. Missouri.

December 3, 1945.

Appeal from the Circuit Court of Cole County. — Hon. Edward T. Eversole, Judge.

AFFIRMED.

Sebree, Shook & Gisler, Elmo B. Hunter and Edgar Shook for appellant.

(1) Appellant, as a member of the Public, has the legal right to the electrical energy it may need at any time, unqualified by the availability of it after provision for other customers, and the Report and Order is unreasonable, unjust and unlawful in that it fails to recognize this legal right of appellant. State ex rel. Wood v. Consumers Gas Trust Co., 157 Ind. 345, 61 N.E. 674, 55 L.R.A. 245; Henry v. City of Butler, 11 Mo. P.S.C. 360; R.S. Mo. 1939, Sec. 5645, 15 Mo. R.S.A. 151; People ex rel. Percival v. Public Service Commission, 148 N.Y.S. 583; Rogers Iron Works, Inc., v. Joplin Waterworks et al., 18 S.W. (2d) 420, 323 Mo. 122; Nacogdoches Light & Power Co. v. Thomas & Richardson (Tex. Civ. App.), 138 S.W. 1080; United Fuel Gas Co. v. Railroad Commission, 278 U.S. 300, 73 L. Ed. 390; Arkansas-Missouri Power Co. v. Brown, 176 Ark. 774, 4 S.W. (2d) 15, 58 A.L.R. 534; State ex rel. Laundry, Inc., et al. v. Public Service Commission, 34 S.W. (2d) 37, 327 Mo. 93; Vanderberg v. Gas Co., 126 Mo. App. 600, 105 S.W. 17, Note, 55 A.L.R. 771, 773; State ex rel. Ozark Power & Water Co. v. Public Service Commission, 229 S.W. 782, 287 Mo. 522; People ex rel. New York Edison Co. v. Public Service Commission, 181 N.Y.S. 252, affirmed 130 N.E. 899; 1 Pond's Public Utilities (4 Ed.), 595; 43 Am. Jur., Public Utilities and Services, Sec. 22, p. 586; 29 C.J.S., Electricity, Sec. 25, p. 536; 18 Am. Jur., Electricity, Sec. 32, p. 431; Curtis, The Law of Electricity, Sec. 36, pp. 59, 60. (2) The Report and Order unlawfully accorded appellant the right only to be served out of the Power & Light Company's capacity unused by its regular customers, and in any event omitted a positive obligation on the Power & Light Company to provide the excess from which appellant could be served, or to inform appellant when the excess capacity is insufficient to provide for the full demand of appellant. State ex rel. Wood v. Consumers Gas Trust Co., 157 Ind. 345, 61 N.E. 674, 55 L.R.A. 245; Henry v. City of Butler, 11 Mo. P.S.C. 360; R.S. Mo. 1939, Sec. 5645, 15 Mo. R.S.A. 151; People ex rel. Percival v. Public Service Commission, 148 N.Y.S. 583; Rogers Iron Works, Inc., v. Joplin Waterworks et al., 18 S.W. (2d) 420, 323 Mo. 122; Nacogdoches Light & Power Co. v. Thomas & Richardson (Tex. Civ. App.), 138 S.W. 1080; United Fuel Gas Co. v. Railroad Commission, 278 U.S. 300, 73 L. Ed. 390; Arkansas-Missouri Power Co. v. Brown, 176 Ark. 774, 4 S.W. (2d) 15, 58 A.L.R. 534; State ex rel. Laundry, Inc., et al., v. Public Service Commission, 34 S.W. (2d) 37, 327 Mo. 93; Vanderberg v. Gas Co., 126 Mo. App. 600, 105 S.W. 17, Note, 55 A.L.R. 771, 773; State ex rel. Ozark Power & Water Co. v. Public Service Commission, 229 S.W. 782, 287 Mo. 522; People ex rel. New York Edison Co. v. Public Service Commission, 181 N.Y.S. 252, affirmed 130 N.E. 899. (3) The Report and Order unlawfully discriminates against appellant. R.S. Mo. 1939, Sec. 5645, 15 Mo. R.S.A. 121; State ex rel. Wood v. Consumers Gas Trust Co., 157 Ind. 345, 61 N.E. 674, 55 L.R.A. 245; Henry v. City of Butler, 11 Mo. P.S.C. 360; People ex rel. Percival v. Public Service Commission, 148 N.Y.S. 583; 1 Pond's Public Utilities (4 Ed.) 595; Nacogdoches Light and Power Co. v. Thomas and Richardson (Tex. Civ. App.), 138 S.W. 1090; People ex rel. New York Edison Co. v. Public Service Commission, 181 N.Y.S. 259. (4) Appellant is entitled to be provided break-down service, based upon a reasonable rate therefor, and without any requirement that appellant pay, for a period of one year following a break-down, the published rate applicable to a full-use customer. R.S. Mo. 1939, Sec. 5645, 15 Mo. R.S.A. 121; People ex rel. Percival v. Public Service Commission, 148 N.Y.S. 583; State ex rel. Wood v. Consumers Gas Trust Co., 157 Ind. 345, 61 N.E. 674, 55 L.R.A. 245; Rogers Iron Works, Inc., v. Joplin Waterworks et al., 18 S.W. (2d) 420, 323 Mo. 122; Henry v. City of Butler, 11 Mo. P.S.C. 360; Nacagdoches Light & Power Co. v. Thomas & Richardson, (Tex. Civ. App.), 138 S.W. 1080; Re New York Edison Co. et al., 16 P.U.R. (N.S.) 120; 1 Pond's Public Utilities (4 Ed.) 595; Curtis, the Law of Electricity, Sec. 36, pp. 59, 60; Ibid, Sec. 28, p. 49. (5) The finding by respondent Public Service Commission, in its Report and Order approved by the Circuit Court, is arbitrarily, unreasonable and unlawful. State ex rel. Interstate Transit Lines v. Public Service Commission, 132 S.W. (2d) 1082, 234 Mo. App. 554; State ex rel. Potashnick Truck Service v. Public Service Commission (Mo. App.), 129 S.W. (2d) 69; State ex rel. St. Louis-San Francisco Ry. Co. v. Public Service Commission, 242 S.W. 939, 294 Mo. 364; State ex rel. and to Use of Pugh v. Public Service Commission, 10 S.W. (2d) 946, 321 Mo. 297; Lusk v. Atkinson, 186 S.W. 703, 268 Mo. 109; State ex rel. Case v. Public Service Commission, 249 S.W. 955, 298 Mo. 303; State ex rel. Detroit Chicago Motor Bus Co., Inc., v. Public Service Commission, 23 S.W. (2d) 115, 324 Mo. 270; State ex rel. Anderson Motor Service Co. v. Public Service Commission, 154 S.W. (2d) 777, 348 Mo. 613; People's Telephone Exchange v. Public Service Commission, 186 S.W. (2d) 531; State ex rel. and to Use of Chicago, Great Western Railroad Co. v. Public Service Commission of Missouri, 51 S.W. (2d) 73, 330 Mo. 729. (6) Appellant is entitled to have defendant Power & Light Company establish and follow a schedule of reasonable rates for break-down service of the type required by appellant. Craig et al. v. Kansas City Power & Light Co., 23 Mo. P.S.C. 474; United Fuel Gas Co. v. Railroad Commission, 278 U.S. 300; People ex rel. Percival v. Public Service Commission, 48 N.Y.S. 583; State ex rel. City of St. Louis v. Public Service Commission of Missouri, 47 S.W. (2d) 102, 329 Mo. 918; State ex rel. Potashnick Truck Service v. Public Service Commission (Mo. App.), 129 S.W. (2d) 69; Re New York Edison Co. et al., 16 P.U.R. (N.S.) 120; State ex rel. Wood v. Consumers Gas Co., 157 Ind. 345, 61 N.E. 674, 55 L.R.A. 245; 43 Am. Jur. 586-7, Sec. 22; 29 C.J.S. 536, Sec. 25; Curtis, The Law of Electricity, Sec. 28, p. 49.

John P. Randolph, Ludwick Graves and James H. Ottman for respondent.

(1) The Bank is not discriminated against by the holding that where it might only want a connection with the lines of defendant and professes it will not need any capacity under any foreseeable conditions, then the Bank could rely only on the unsued capacity in the lines of the defendant in case of a complete breakdown during the time that it is not required for the use of the public. United Fuel Gas Co. v. Railroad Commission, 278 U.S. 300, 73 L. Ed. 390, l.c. 396; People ex rel. New York Edison Co. v. Public Service Commission et al., 181 N.Y.S. 259, 130 N.E. 899, l.c. 260-261 of 181 N.Y.S.; 43 Am. Jur. 586-7, Sec. 22; 29 C.J.S., 536, Sec. 25; 18 Am. Jur. 431, Sec. 32. (2) The Commission fully understood the demands of the Bank and the conclusion of the Commission is in harmony with the testimony. People ex rel. New York Edison Co. v. Public Service Commission et al., 181 N.Y.S. 259, 130 N.E. 899, l.c. 260-261 of 181 N.Y.S.; New York Edison Company, Incorporated, et al., 16 P.U.R. (N.S.) 120, l.c. 125.

BLAND, P.J.

This is an appeal from a judgment affirming an order of the Public Service Commission. The appellant, the Federal Reserve Bank, (hereinafter referred to as the Bank), is a corporation and, as such, owns a bank and office building in Kansas City. The defendant, in the proceedings before the Commission, the Kansas City Power & Light Company, (hereinafter referred to as the Light Company), is a public utility engaged in the manufacture, transmission, distribution and sale of electrical energy to the public in Kansas City, Missouri, and vicinity. The Bank for 20 years was a regular, full-use and continuous customer of the Light Company, using in its building energy supplied and provided for under contracts and schedules as filed with the Public Service Commission. The energy supplied was furnished at 13,000 volts. The Light Company owned and operated the necessary equipment and sub-stations for delivering the energy to transformers and other necessary equipment owned and maintained by the Bank. The transformers of the Bank reduced the energy from 13,000 volts to a voltage suitable for use throughout the Banw and the bank building.

In 1940 the Bank determined to install its own electrical generating equipment and, in that year, did install its own power plant, consisting of three engines capable of producing 250 kilowatts each. The maximum demand of the Bank itself and its tenants at that time was less than 500 kilowatts, so that it had an excess or standby capacity equivalent to 50% of its maximum demand. Any two of its engines were sufficient to carry its load. Nevertheless, because large and important operations and services, governmental and otherwise, including the storage of large sums of money and valuables in its vaults and the operation of tabulating, calculating, sorting and other machinery and appliances with electrical energy, and the functions of many persons among its employees, and its tenants, were dependent upon an uninterrupted source of electricity, the Bank deemed the provision of standby or breakdown service to be furnished by the Light Company imperative.

On May 29, 1940, the Bank gave the Light Company notice that the contract for electric current was being terminated and requested the Light Company to submit to it a rate covering standby or emergency service to protect the Bank and the tenants in the building in which the Bank is located in case of failure on...