The State ex rel. Missouri Gas & Electric Service Company v. Trimble

• Decision Date: 09 April 1925
• Docket Number: 25308
• Parties: THE STATE ex rel. MISSOURI GAS & ELECTRIC SERVICE COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

271 S.W. 43

307 Mo. 536

THE STATE ex rel. MISSOURI GAS & ELECTRIC SERVICE COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

No. 25308

Supreme Court of Missouri

April 9, 1925

Record quashed so far as conflicting.

Harvey & Bellamy for relator.

(1) When the Public Service Commission fixed the schedule for wholesale electric rates at Marshall, effective May 16, 1915 no notice of the action of said Public Service Commission was necessary, for the reason that, prior to that time, as stated in the amended answer, there had been no such rate on file and this was, therefore, not a change in rates, but a new rate. No notice under any circumstances is required to be given directly to each consumer, but only a notice by publication. Par. 12, Sec. 10478, R. S. 1919; Marty v Light & Power Co., 259 S.W. 793. (2) When the Public Service Commission fixed the wholesale electric rate schedule, effective May 16, 1915, the provisions of said rate schedule automatically superseded the provisions of the contract, in so far as there was a conflict, and no action was necessary on the part of relator, said milling company or any other of relator's customers, to make said schedule effective. The clause in the Public Service Commission schedule providing for a measurement of the maximum demand had the effect of modifying the contract in reference to the determination of such maximum demand. State ex rel. Sedalia v. Public Service Commission, 275 Mo. 201; City of Fulton v. Public Service Commission, 275 Mo. 67; Kansas City Bolt & Nut Co. v. Power & Light Company, 275 Mo. 529; City Water Company v. City of Sedalia, 288 Mo. 411. (3) In said opinion, it is held that the evidence of witness Rea, that no measurements of the maximum demand had ever been made, sustained the burden of proof and established the illegality of the excessive demand charge collected, notwithstanding said witness also testified that he did not know how to measure the maximum demand, nor the methods used for that purpose, and would not have known what was being done if he had seen the maximum demand being measured, and in this holding said opinion conflicts with Rothwell v. Jamison, 147 Mo. 601, 608, and Childers v. Pickenpaugh, 219 Mo. 376, 435. (4) When the writ of certiorari has been issued and the case is before the Supreme Court for determining whether or not there is any conflict between the opinion under review and the rulings of the Supreme Court, this court will not confine itself to the suggestions made by relator in its petition for the writ, but will quash the record of the Court of Appeals, if it conflicts with any ruling of this court, whether such conflict has been suggested by relator, by respondent, or discovered by the court itself. State ex rel. v. Ellison, 273 Mo. 228; State ex rel. v. Reynolds, 286 Mo. 123; State ex rel. v. Trimble, 253 S.W. 1016.

A. F. Rector and R. H. Duggins for respondents.

(1) Under the contract filed with the Public Service Commission and the wholesale rate schedule filed on April 16, 1915, relator contracted, after it had by its experts and engineer determined and filed the rated H. P. of defendant's motors and lights and other apparatus connected, necessary to operate said milling plant at 170 H. P. equal to 127 K. W. and fixed its demand charge at 55 per cent of the equivalent rated H. P. motors, to-wit, 127, and fixed 71 K. W. as the demand charge, or $ 154.50 per month, as demand and service charge. This contract was based on the wholesale rate schedule filed, and could not be changed by relator without an order of the Public Service Commission after notice to defendants. Sec. 10478, par. 12, R. S. 1919; Wichita Co. v. Industrial Co., 214 P. 804; P. U. R. 1923-B, p. 309. (2) The relator rated the H. P. motors at 170 H. P. when it installed the electrical machinery, changing the power from steam to electricity, at 170 H. P. which equals 127 K. W. maximum demand charge. 50 K. W. at $ 2.25, $ 112.50; 20 K. W. at $ 2.00, $ 40.00, equal to $ 152.50. And under the contract made, the demand charge 71 K. W. for nearly three years, to be exact thirty-three months, relator determined the demand charge to be 71 K. W., and billed the defendant $ 154.50 per month. Having for so long a time charged defendant 71 K. W. as its monthly demand charge, the relator is bound by the terms of the contract as interpreted and adopted, and will be held to have so contracted and are bound by the contract as applied in the premises by the parties to it. The doctrine is well established, that when the parties themselves interpret the contract and its terms, they are bound thereby. (3) There is no evidence that the utility company made any measurement of the demand charge at the time the increase from 71 K. W. to 86 K. W. was made, nor at any time from June 1, 1918, to February 28, 1921. Before any increase in the demand charge could be made, if any could be made under contract, measurement of demand load was required, by the terms of the schedule on file. If by any reasoning the company could increase the demand charge by measuring the maximum demand in any month, to obtain the average kilowatts indicated in any thirty-minute interval in which the consumption of electricity was greater than any other thirty-minute interval in the month, relator was required to make monthly measurement in order to determine the exact amount of the demand charge to be billed against defendant for the month. The evidence is that no measurement was ever made, and the testimony was not questioned or disputed. No measurement having been made, no increase in the demand charge could be made. It was the duty of the utility company, if it had the right to increase the rate, to do so only after actual measurement warranted it, and it was required to measure accurately before increasing the demand charge. Rhodes-Burford H. F. Co., v. Union Elec. L. & P. Co., 2 Mo. P. S. C. p. 666. (4) The amount paid to the relator under protest can be recovered in this action. Brewing Co. v. St. Louis, 187 Mo. 367; Westlake v. St. Louis, 77 Mo. 47.

OPINION

David E. Blair, J.

This is an original proceeding in certiorari, wherein relator seeks to quash the opinion and judgment of the Kansas City Court of Appeals, in the case of Missouri Gas & Electric Service Company v. Rea & Page Milling Company. In the circuit court the service company had judgment against the milling company upon the cause of action stated in its petition and also had judgment upon the counterclaim of the latter. The milling company appealed, and respondents reversed the judgment and remanded the cause with directions to the circuit court to enter judgment for the milling company upon its counterclaim. The propriety of the judgment for the service company upon its petition was not challenged in the Court of Appeals. It is contended that the opinion of respondents in respect to the counterclaim is in conflict with certain designated decisions of this court.

We cannot refrain from suggesting that relator has gone to much unnecessary and unjustifiable expense in printing in this court what appears to be the entire record which was before the Court of Appeals. The only part of the record which we can properly consider in this proceeding is that pertaining to the question of conflict of opinion. Our Rule 34 provides for the filing of a petition of not exceeding five pages, in which shall be set out the issue presented to the Court of Appeals and which shall show wherein and in what manner the alleged conflicting ruling arose and the precise place in our official reports where the controlling decision will be found. Said rule also provides what such petition shall contain. It is apparent that the record in such certiorari proceeding should begin with the filing of the petition for our writ of certiorari and should embody such petition and exhibits accompanying same, together with subsequent proceedings in this court.

The sufficiency of relator's abstract has not been challenged by respondents and we do not mean to hold that it does not include everything essential to a fair and proper presentation of the question of conflict. Our suggestion is that such record contains too much.

We will briefly state the facts, as they appear in the opinion of respondents. The service company was operating a plant at Marshall, Missouri, for the production of electricity for light and power purposes. The milling company was operating a flour mill in the same city. The service company convinced the milling company that a saving in operating costs could be effected by installing electric motors to replace steam as motive power in its mill and, in April, 1915, the two companies entered into a contract in relation to such installation. A contract, to become effective May 16, 1915, was executed, covering rates and charges for furnishing such electric current. The latter contract was filed with the Public Service Commission, together with the schedule of wholesale rates in conformity therewith. Such contract, so filed with the commission, contained the following provision in relation to the method of determining the maximum demand.

"The maximum demand shall be estimated as follows: 55 per cent of the total equivalent rated horse-power motors and lights and other apparatus connected. The company may, if it desires, measure the company's maximum demand, in which case the maximum demand in any month shall be the average number of kilowatts indicated or recorded in the 30-minute intervals in which the consumption of electricity is greater than in any other 30-minute interval in the month."

The schedule of rates on file with the commission, provided for a demand charge of $ 2.25 per month per kilowatt for the first 50 kilowatts of...