State v. Water Light & Transit Co.

• Decision Date: 08 April 1913
• Citation: 249 Mo. 649,155 S.W. 826
• Court: Missouri Supreme Court
• Parties: STATE ex rel. JACOBS v. WATER, LIGHT & TRANSIT CO. OF CARROLLTON.

155 S.W. 826

249 Mo. 649

STATE ex rel. JACOBS v. WATER, LIGHT & TRANSIT CO. OF CARROLLTON.

Supreme Court of Missouri, Division No. 2.

April 8, 1913.

1. APPEAL AND ERROR (§ 1074) — HARMLESS ERROR — CONSTITUTIONAL QUESTIONS.

Where an appeal was transferred to the Supreme Court on motion from the Court of Appeals on the ground that constitutional questions were involved, the error of the trial court in not granting an appeal to the Supreme Court when requested was harmless and need not be considered.

2. ELECTRICITY (§ 11) — ELECTRIC COMPANIES — RATES — ARBITRATION — CONTRACTS.

Where a franchise to an electric lighting company provided that the rates to be charged should be decided every five years by arbitration and that "the prevailing average current rates for like services in North Missouri shall be the rates adopted at the end of each five years," and the arbitrators agreed that the rate should be 12 cents per kilowatt hour, but nothing was said about a minimum charge, the light company cannot have a minimum charge of one dollar, even though the other cities in Northern Missouri had such a minimum charge; the agreement between the arbitrators, to which no objection was made, being a binding contract.

3. ELECTRICITY (§ 11) — ELECTRIC COMPANIES — RATES — "CONFISCATORY RATES."

Even where an electric light company has been forced to furnish light at 12 cents per kilowatt hour, it cannot contend that the rate is confiscatory simply because there is a loss on subscribers who consume less than one dollar's worth; the company not being entitled to insist on a profit on each transaction but only on its entire business.

For other definitions, see Words and Phrases, vol. 2, pp. 1427, 1428.]

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Action by the State on the relation of Charles I. Jacobs to compel the Water, Light & Transit Company of Carrollton to furnish relator with incandescent light. Judgment for plaintiff, and defendant appeals. Affirmed.

This is a proceeding by mandamus, instituted in the circuit court of Carroll county, Mo., to compel the defendant, Water, Light & Transit Company of Carrollton, to connect its electric lighting system with relator's residence, and to furnish him with incandescent light service at his said dwelling at the ordinance or franchise agreement rate.

There is very little dispute as to the facts involved. The defendant company is the successor of the original grantee in a certain franchise duly granted by the city of Carrollton and ratified by the voters of said city on the 29th day of August, 1892. Said franchise granted to the grantee therein and its successors and assigns, for a term of 20 years, the right to erect and maintain in the streets, alleys, and public places of said city, its wires, poles, appliances, and structures, for the purpose of supplying electric light and power to the inhabitants of said city, prescribed certain rules and regulations not pertinent to the discussion here, and fixed certain rates to be charged by said company for its services in furnishing and supplying its electricity. The rates provided by said franchise were not fixed for the full term of the franchise, but a provision was made in said ordinance whereby the rates could be readjusted every five years. Said provision is contained in section 7 of the ordinance, which section reads as follows: "Sec. 7. It is further agreed that the rates herein given to the town of Carrollton and private consumers shall be subject to revision and change at the end of five (5) years in the manner herein provided, except that said rates shall never be increased more than ten per cent. above the present rates. The mode of such revision shall be by arbitration, by a board to consist of two members, one to be appointed by the town of Carrollton, and the other to be appointed by the Missouri Water & Light Company. Any disagreement between them shall be referred to the circuit court of Carroll county, Missouri, on the petition of either party to this contract. The prevailing average current rates for like services in North Missouri cities and towns shall be the rates adopted at the end of each five years."

Acting under the provisions of the above section of the ordinance, the city of Carrollton and the defendant company appointed their respective arbitrators to act as a board of arbitrators to agree upon, readjust, and fix the rates to be charged by defendant for the five-year period beginning February 1, 1908. The board of arbitrators thus selected agreed upon the rates to be charged during this period, and said contract was, on March 13, 1908, mutually confirmed and ratified by the said city and defendant. That portion of the rate agreement thus mutually agreed to, and affecting the controversy in suit, is as follows: "Fifth. Incandescent lights and power to private consumers (meter to be furnished free by Water, Light & Transit Company), all day and all night service, twelve (12¢) cents per kilowatt hour, with the following discounts if paid on or before the fifth of each month: Bills under ten ($10.00) dollars, ten per cent. (10 per cent.); over ten ($10.00) dollars and not exceeding fifteen ($15.00) dollars, fifteen (15) per cent.; over fifteen ($15.00) dollars and not exceeding twenty ($20.00) dollars, twenty (20) per cent.; over twenty ($20.00) dollars and not exceeding twenty-five ($25.00) dollars, twenty-five (25) per cent.; over twenty-five ($25.00) dollars, thirty (30) per cent."

On or about May 1, 1908, relator, who had for some time been using and paying for defendant's incandescent light service in his dwelling house, went to defendant's office to pay his light bill, which was due on the first of said month. He was there presented with a bill or statement amounting to $1. The sum which relator owed at this time, if his bill is to be determined by the amount of electricity actually used, at 12 cents per kilowatt hour, was 54 cents. He refused to pay the dollar, but did offer and tender the sum of 54 cents, which tender was refused by defendant company; the company, through its agent, explaining to him that it never charged less than $1, less 10 per cent. discount, for any month, whether the electricity consumed amounted in price to that sum or less. Later, the relator still refusing to pay more than 54 cents, the defendant, on May 12, 1908, disconnected its service from his dwelling and removed its meter therefrom. Shortly thereafter relator made written demand upon the defendant to replace its meter and connect his said dwelling house with said electric service and furnish him such service at the rate of 12 cents per kilowatt hour, and tendered the sum of $5 to be used by defendant in payment of any electricity which he had used or in the future might use. Defendant failing to comply with his said written demand, he instituted this proceeding.

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