State v. Atkinson

• Decision Date: 28 June 1918
• Docket Number: No. 19644.,19644.
• Parties: STATE ex rel. ELECTRIC CO. OF MISSOURI v. ATKINSON et al.
• Court: Missouri Supreme Court

204 S.W. 897

275 Mo. 325

STATE ex rel. ELECTRIC CO. OF MISSOURI v. ATKINSON et al.

No. 19644.

Supreme Court of Missouri. In Banc.

June 28, 1918.

Rehearing Denied July 15, 1918.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Certiorari by the Electric Company of Missouri against John M. Atkinson, to review an order of the Public. Service Commission, granting a certificate of public convenience and necessity to the Western Power & Light Company. From a judgment of the circuit court affirming the order of the Service Commission, the Electric Company of Missouri appeals. Affirmed.

Schnurmacher & Rassieur, of St. Louis, and Perry S. Rader, of Jefferson City, for appellant. A. Z. Patterson and James D. Lindsay, both of Jefferson City, for respondent Atkinson and others. Amandus Brackmann, of Clayton, for respondent city of Maplewood. Wilfred Jones, of Maplewood, for respondent Civic League of Maplewood and another. I. R. Kelso, of St. Louis, for respondent Western Power & Light Co.

BLAIR, J.

In Division Commissioner ROY filed an opinion as follows:

"On February 14, 1916, the Public Service Commission granted to the Western Power & Light Company, a corporation of St. Louis county, a certificate of public convenience and necessity to construct, maintain, and operate an electric light and power system in the city of Maplewood in said county under a franchise granted by said city. The Electric Company of Missouri, appellant herein, was an intervener in that proceeding; and; after such certificate was ordered to issue, it proceeded by certiorari in the circuit court of Cole county to have the order of the commission reviewed. The circuit court affirmed that order, and the cause is here on appeal.

"The city of Maplewood was incorporated as such in 1908. It is about eight or nine blocks wide from east to west, the streets and blocks being more artistic than regular in their direction and form. The eastern half is more compactly improved than the part further west, there being no appreciable difference in that respect between the eastern half and the adjoining portion of the city of St. Louis. The boundary between the two cities does not follow a street, but runs diagonally through lots and blocks. The population of Maplewood is about 6,500.

"Before Maplewood was incorporated, and as early as 1892, the appellant, at first under a different name, began, and has since continued, to furnish the citizens of that county, including what is now the city of Maplewood, with electric light and power. So far as the evidence shows, the appellant has never owned a generating plant. The evidence does show that it procures its electricity from the Union Electric Light & Power Company, and that it furnishes to the latter company a different kind of electric current from Keokuk; the latter current not being used in Maplewood. Just what the relations are between appellant and the Union Company does not appear. The appellant, through a holding company, owns the gas business, which furnishes gas to Maplewood and to the portions of the city of St. Louis, adjoining Maplewood. It also owns a subway system.

"It is conceded that appellant never obtained any franchise from the city of Maplewood to do business in that city, but that it is continuing to operate under its original county franchise. At the time of the granting of the certificate to the Western Company by the commission, the appellant was furnishing to the citizens of Maplewood and of other cities and rural districts in said county light at the maximum rate of 12 cents per kilowatt hour. Just across the line in St. Louis the Union Electric Light & Power Company, from which appellant gets its current, was furnishing it at a maximum of 9 cents. There was a similar difference in the rates on gas in favor of St. Louis, it being furnished by appellant on both sides of the line. Appellant was at that time lighting about 643 residences and serving 144 commercial light and power consumers in Maplewood. It was furnishing to that city about 150 street lamps of 60 candle power each, at $14.40 per annum for each lamp. Its business in Maplewood was about 17 per cent. of its total business in that county.

"It is conceded that the contract for street lighting, made between the city and the appellant in 1910 for a period of five years, was never submitted to an election for the approval of the votes of the city, and that it was not so submitted for the reason that both the city officials and the appellant were of the opinion that it would be defeated if it were submitted. It is also conceded by the parties herein that such contract was illegal for that reason.

"The subject of cheaper lights was discussed by the representatives of the city, and by the interveners herein, the Civic League of Maplewood and the South Maplewood Improvement Association. They applied to appellant for lower rates and received a good natured laugh in answer. They were told by appellant to apply to the Public Service Commission. The Western Power & Light Company had then been in business for about two years, furnishing electricity in various cities in St. Louis county and in the rural portions of that county. It has a generating plant in that county. Application was made to it on behalf of Maplewood for rates, and the answer was made by the Western Company that it did not care to name any rates if they were sought merely for the purpose of being used against the appellant. It was assured that the application was not made for that purpose. Competition bids were called for by the city, .with the result that the appellant offered to furnish the 60 c. p. lamp at $14.40, while the Western Power & Light Company offered them at $11.20. The latter offer was accepted, and a contract made in accordance therewith. It was a part of the agreement between the city and the Western Company that the latter should have the right to do a general electric business in the city. That company was given a franchise by the city to do such business. That franchise fixed 10 cents as the maximum rate. Both the franchise and contract were approved by more than two-thirds majority at an election held for that purpose. Bath the contract and the franchise were for a period of ten years. That franchise contained the following: `Sec. 4. Grantee shall, without charge therefor, furnish free to the city, lights for its offices and fire house, to the extent of one hundred (100) kilowatt hours per month.' And also this: `Sec. 5. Nothing in this ordinance shall be construed as conflicting in any way with any state laws now in force, or which may hereafter, during the term of this franchise, be in force, governing or regulating the conditions of light and power service, or the rates to be charged for same by public utility companies in the state of Missouri.'

"The evidence tends to show, and it is not contradicted, that prior to and at the time of that election the appellant made a very active campaign to defeat the approval of such contract and franchise. It issued many circulars, and put many agents in the field for that purpose. On the hearing before the commission the officers of appellant made no statement of the price paid by it to the Union Electric Light & Power Company for the current. They did testify that they had made a calculation, taking into consideration the necessary annual allowance to amortize the plant, and that the rate offered to the city by it could not be reduced without reducing the net income below the point where it would pay interest on the investment. The president of the Western Power & Light Company testified that the service could be furnished by that company on the terms offered by it at a reasonable profit after making reasonable allowance for amortizing the plant. There was no evidence to the contrary.

"I. Appellant contends that the provision in the franchise granted to the Western Power & Light Company by which said company was required to furnish the city, without charge therefor, light for its offices and fire house to the extent of 100 kilowatt `tours per month, is a discrimination in favor of the city as against other consumers, and that such franchise is void for that reason. There are several reasons why that franchise should not, in this proceeding, be held void. In the first place, it does not appear how much electricity the city uses to light its offices and fire house. Whether it would amount to a hundred kilowatt hours per month is not shown. Respondents...