Sullivan v. Boston Consol. Gas. Co.
| Decision Date | 07 March 1951 |
| Citation | 327 Mass. 163,97 N.E.2d 535 |
| Parties | SULLIVAN et al. v. BOSTON CONSOL. GAS CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C. J. Moynihan, Boston (T. D. Lavelle, Boston, with him), for plaintiffs.
R. H. Holt, Boston (A. P. Schmidt, Boston, with him), for defendant.
Before QUA, C. J., and LUMMUS, WILKINS and SPALDING, JJ.
Twenty individuals and the city of Boston, all as consumers of gas supplied by the defendant, bring this bill in behalf of themselves and of all other consumers for the purpose of securing refunds of sums which they contend were wrongfully exacted from them by the defendant in the period from July 1, 1942, to August 1, 1946, under the terms of a fuel charge which the department of public utilities had ordered the defendant to incorporate in its filed rates. The Superior Court sustained the company's demurrer and also a plea in bar and dismissed the bill. The plaintiffs appeal. As we are satisfied that the demurrer was rightly sustained, we shall not deal separately with the plea.
The allegations of the bill are in substance these: All the capital stock of the defendant is owned by Eastern Gas and Fuel Associates from which the defendant purchases ninety-five per cent of all gas distributed by it. On April 24, 1942, the defendant entered into a new contract with Eastern, which became effective June 30 and which contained a fuel clause whereby the price to be paid to Eastern by the defendant for gas would increase in accordance with a specified formula as the cost of coal to Eastern increased. This contract was approved by the department after some modification not here material. On April 25, 1942, the defendant filed a schedule of rates, known as 'M. D. P. U. 99' in which was incorporated a fuel charge providing that whenever the price of gas bought by the defendant under its contract with Eastern should be increased by application of the fuel clause in the contract, the price of gas to its consumers should be increased according to a specified formula. The department disallowed this schedule and ordered the defendant to file a new schedule, known as 'M. D. P. U. No. 100' which should contain a fuel charge prescribed in precise words by the department. This prescribed fuel charge, instead of providing that the price of gas to consumers should be increased with the increase in the price said by the defendant to Eastern for gas, provided that the price of gas to consumers should be increased with the increase in the cost of coal to Eastern. On June 30, 1942, the defendant filed the schedule 'M. D. P. U. No. 100,' containing the fuel charge precisely as ordered by the department and making the increase in the price of gas to consumers depend upon the increase in the cost of coal to Eastern and not, as in schedule 'M. D. P. U. 99,' originally filed by the defendant, upon the increase in the price of gas bought from Eastern by the defendant. The new schedule went into effect July 1, 1942. In the meantime on April 28, 1942 the Office of Price Administration, acting under the Emergency Price Control Act of 1942, 56 U.S.Sts. at Large, 23, ch. 26, 50 U.S.C.A.Appendix, § 901 et seq., issued a general regulation (7 Fed.Reg. 3153-3157), which forbade Eastern to charge the defendant more for gas then it had charged in March, 1942. The result was that the price of gas to the defendant did not rise during the period while this order was in force, but nevertheless the defendant continued to make a fuel charge to the consumers based upon the cost of coal to Eastern in accordance with schedule 'M. D. P. U. No. 100.'
It is further alleged that this fuel charge was ordered by the department through mistake and error, the intent and purpose of the department being that the defendant's fuel charge to the consumers should operate only when the price of gas bought by the defendant of Eastern was increased; that 'By inadvertence and mistake the order of the department did not contain this provision'; that the defendant knew of this mistake and of the true intent of the department; that the plaintiffs did not know of it until shortly before the filing of the bill; that the defendant knowingly and intentionally took advantage of the department's mistake; and that 'its retention of the moneys so collected is inequitable, unconscionable and in violation of the duties owed by the respondent as a public utility to the petitioners and the consuming public.'
It is plain at the outset that where the bill speaks of inadvertence and mistake on the part of the department it is not referring to such mistakes as errors in arithmetic or...
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