State v. Landon

• Decision Date: 12 May 1917
• Docket Number: 21,053
• Citation: 165 P. 1111,100 Kan. 593
• Parties: THE STATE OF KANSAS, ex rel. JOSEPH L. BRISTOW et al., as the Public Utilities Commission, etc., Plaintiffs, v. JOHN M. LANDON, as Receiver for the KANSAS NATURAL GAS COMPANY, et al., Defendants
• Court: Kansas Supreme Court

165 P. 1111

100 Kan. 593

THE STATE OF KANSAS, ex rel. JOSEPH L. BRISTOW et al., as the Public Utilities Commission, etc., Plaintiffs, v. JOHN M. LANDON, as Receiver for the KANSAS NATURAL GAS COMPANY, et al., Defendants

No. 21,053

Supreme Court of Kansas

May 12, 1917

Decided January, 1917.

Original proceeding in mandamus.

Peremptory writ issued.

SYLLABUS

SYLLABUS BY THE COURT.

1. GAS COMPANIES--Right to Change Schedule of Charges--Consent of Utilities Commission. The receiver of the Kansas Natural Gas Company and the Olathe Gas Company have no right to change the rate, schedule of charges, rules, regulations or practice pertaining to the supply of natural gas to the patrons of the Olathe Gas Company without the consent of the Public Utilities Commission.

2. SAME -- Decision of United States District Court Construed -- Mandamus--Writ Issued Conditionally. The suit recently decided by the United State district court for the district of Kansas (Landon, as Receiver, etc., v. Public Utilities Commission et al., filed April 21, 1917, not reported), while involving among other things the validity of the contract under which the Kansas Natural Gas Company and the Olathe Gas Company have for several years been supplying the customers of the latter company, has not yet resulted in any decision as to the validity of such contract, jurisdiction having been expressly reserved over the issues involved which are not covered by the recent decision. Held, that a writ requiring the defendant companies to continue according to the terms of the contract until such contract be duly and legally set aside or superseded will issue, unless within a time named such consent to depart from the terms thereof be obtained from the Public Utilities Commission.

3. GAS COMPANY--Sale of Gas to Kansas Consumers--Rates Under Control of Utilities Commission. Notwithstanding the decision in the federal case referred to, touching the interstate character of the business conducted by the receiver, we adhere to the decision in The State, ex rel., v. Flannelly, 96 Kan. 372, 152 P. 22, that when selling natural gas to consumers thereof in this state the receiver is not engaged in interstate commerce.

H. O. Caster, and F. S. Jackson, both of Topeka, for the plaintiffs.

Chester I. Long, of Wichita, Robert Stone, of Topeka, C. D. Walker, of Atchison, John H. Atwood, and W. F. Guthrie, both of Kansas City, Mo., for the defendants.

West J., Dawson, J.

OPINION

WEST, J.:

In November, 1908, the Kansas Natural Gas Company entered into a written contract with the Olathe Gas Company by the terms of which the latter, as agent of the former, was to supply natural gas to its patrons on certain terms, a portion of which gas was to be furnished by the Natural Gas Company and a portion by the local company. This contract was considered in The State, ex rel., v. Litchfield, 97 Kan. 592, 155 P. 814, in which it was observed that the local company was operating under a franchise granted by the city authorizing a charge of twenty-five cents a thousand feet for one year and thereafter thirty cents. The principal question was whether the city, or the utilities commission had control of the rate, and it was held that the company was in this respect subject to the jurisdiction and control of the public utilities commission.

September 22, 1916, the commission brought this action in mandamus to compel the two companies to continue the supply and distribution of gas according to the terms of the contract. The allegation is that the defendant companies, without the consent of the commission, abandoned the contract and discontinued operations under it, and thereupon it was proposed that the Kansas Natural or its receiver discontinue its service to the distributing company, and that thereafter no gas would be delivered to it by the receiver except such as should be paid for at eighteen cents a thousand at the gates of the city, substituting an entirely different service regulation and practice of delivering gas, and that the local company had unlawfully consented to the changes and had abandoned and discontinued the former service to the inhabitants of the city of Olathe and the surrounding community.

The answer of the Olathe Gas Company closes a series of allegations with a denial of the jurisdiction of the public utilities commission over its affairs.

The receiver of the Natural Gas Company in his return challenges the jurisdiction of this court; sets up that there was a prior suit pending in the United States district court for the district of Kansas involving the matters in controversy here, and especially the right of the Natural Gas Company to depart from the rates provided in the contract already referred to, asserting that the federal court has assumed and is holding jurisdiction over all these matters and asserting that by his submission to the federal court and his denial of the jurisdiction of this court he is exercising an authority granted him by the United States and the constitution and laws thereof. Further, that he had served notice on the plaintiffs herein and all other defendants in the case in federal court that he would, on October 11, 1916 apply thereto for relief and file a supplemental bill, a copy of which, marked "exhibit D," was set forth; and further alleging that the order already made by the ...