W. Elec. Co. v. City of Jamestown

• Decision Date: 07 February 1921
• Citation: 47 N.D. 157,181 N.W. 363
• Parties: WESTERN ELECTRIC CO. v. CITY OF JAMESTOWN.
• Court: North Dakota Supreme Court

47 N.D. 157

181 N.W. 363

WESTERN ELECTRIC CO.

v.CITY OF JAMESTOWN.

Supreme Court of North Dakota.

Jan. 4, 1921.

Rehearing Denied Feb. 7, 1921.

Syllabus by the Court.

In an action by a public service corporation to recover for electric current furnished a city, where, pursuant to a contract for one year, made in 1912, the corporation has furnished electric current for street lighting from year to year and has accepted payment at the rate stipulated in such contract, although in 1914 the city council adopted a resolution canceling such contract, and where, in February, 1918, the corporation gave notice of an increased or surcharge rate of 10 per cent. upon the theretofore existing rate and continued to furnish such current for such purpose to the city without the city accepting or agreeing to pay such increased rate, and continued thereafter to receive payment for the current furnished under the contract rate stipulated, it is held that the original contract was continued and renewed by practical construction through the acts and conduct of the parties, and that the corporation is not entitled to recover the increased or surcharged rate.

In such action by a public service corporation to recover from a city for electric current furnished in operating city water pumps, where in the franchise to the corporation granted in 1902 it was provided that the corporation should pump water in the standpipe which the city has not located at the rate of $2.50 per 100,000 gallons, and where pursuant thereto until 1910 it furnished such power by means of a steam pump, and thereafter, when the city had changed its wells and pumps, furnished electric current for their operation for a period of eight years, all at the rate stipulated in the franchise, and at which rate it received payment, and where since August 1, 1918, it has furnished current and has sought to charge the city at the current rate charged to private consumers, all with full notice that the city claimed such service at the prescribed franchise rate, it is held:

(a) That the corporation was obligated under the terms of its franchise to furnish such electric current at the agreed rate.

(b) And that the Public Utilities Act (chapter 192, Laws 1919) effective March 5, 1919, granting to the Board of Railroad Commissioners the power to regulate electric light rates, did not abrogate or affect the terms and consideration of the franchise granted in 1902.

In an action by such Public Service Corporation to recover from a city the reasonable value of electric current furnished for a library and reading room, where a public library and reading room was maintained in a room of the city hall from 1910 to 1918 for which the corporation furnished electric current until 1914, without specific request therefor by the city and without any bill being presented for payment of such current, and where, after presentation of a bill for such current furnished, the same was rejected by the city, and, without further negotiations, the corporation continued to furnish electricity up to the time of the commencement of this action, with knowledge that the city claimed that the corporation was obligatedto furnish such electricity under its franchise, it is held that the parties by their acts and conduct have adopted a practical construction of the franchise, and that there existed no contract, either express or implied, to pay the corporation any money for the electric current so furnished.

Appeal from District Court, Stutsman County; Nuessle, Judge.

Action by the Western Electric Company against the City of Jamestown. From a judgment of dismissal, plaintiff appeals. Affirmed.

S. E. Ellsworth, of Jamestown, for appellant.

F. G. Kneeland and Thorp & Rittgers, all of Jamestown, for respondent.

BRONSON, J.

This is an action to recover for electric current furnished the city. The action was tried to the court without a jury. The plaintiff has appealed from a judgment of dismissal in favor of the city. This same action, upon a demurrer to the complaint, was previously before this court. 175 N. W. 622. In its amended complaint the plaintiff seeks to recover for a first cause of action the reasonable value of electric current furnished to the city for lighting its streets and public places between February 1, 1918, and July 31, 1918, amounting to $253; for a second cause of action the reasonable value of electric current furnished the city as power in the operation of city pumps from August, 1918, to November, 1919, in amount $11,975.46; for a third cause of action the reasonable value of electric current furnished in lighting a public library and reading room in the city hall from December 28, 1908, to date, in amount $1,402.02.

The answer generally denies the complaint and alleges a written agreement for street lighting, and, pursuant thereto, the furnishing of electric current by the plaintiff; alleges a franchise granted to and accepted by the plaintiff by the terms of which plaintiff became bound to furnish to the city free electric current to its city hall and engine house without cost and also to pump water for the city at a certain specified rate, and, further, that pursuant to such ordinance the plaintiff has so furnished electric current in pumping water for the city and in furnishing electric light to a library room and reading room. It further alleges that no liability of the city was ever created by the city council as required by law to pay the demand made for the electric current furnished.

The facts in the record necessary to be stated are substantially as follows:

In 1902 the city enacted an ordinance granting to the Jamestown Electric Light Company a franchise for a period of 25 years to use its streets for poles, wires, transmission of electricity, etc., in the operation of an electric light and power plant. The plaintiff is a successor in interest, and exercises its privileges as a public service corporation in the city pursuant to the terms of such ordinance. The ordinance provides that during its life the company shall furnish electric current to light the city hall and engine house of the city and the city offices therein without cost to the city, and also furnish free fire protection to the citizens and pump water into the standpipe which the city has now located, at a rate of $2.50 per 100,000 gallons. The ordinance also stipulated a maximum rate that shall not exceed 15 cents per K. W. during the life of the franchise for electricity furnished consumers, either public or private.

In 1912 a white way was established upon the streets of the city. In March, 1912, the plaintiff submitted to the city council a proposition to furnish current for lighting this white way for a term of one year upon a flat rate, which, subject to a slight modification agreed upon, was accepted by the city council. Thereafter current was furnished for this white way at the flat rate basis for which bills were rendered and paid by the city. In February, 1918, the plaintiff added a 10 per cent. increase to be known as a surcharge to the street lighting rate. For six months, from February to July, 1918, this surcharge amounted to $253, the amount of plaintiff's first cause of action. The city council refused payment of such surcharge, although it has otherwise paid the regular flat rate, which amount has been monthly received by the plaintiff. In January, 1914, it appears that the city council by an “aye” and “nay” vote upon a resolution declared the contract made in March, 1912, to be canceled and annulled. Nevertheless thereafter the plaintiff continued to furnish electric current under the same arrangement as theretofore existed until the month of February, 1918. From 1902 to 1910 the plaintiff furnished power through the steam of its boilers for pumping water from a well located adjacent to its plant and was paid at the rate provided in the franchise. Then in 1910 the city made changes in its public water system. New wells were provided at some distance from the plant of the plaintiff. The pumps installed were designed to be operated by electric current. The plaintiff thereupon furnished the current, and for a period of over eight years furnished such current at the rate stipulated in the franchise, rendered bills therefor, and received payment thereof. In 1918 plaintiff removed its plant to another location and installed a meter for the purpose of measuring the current supplied for pumping. It continued to furnish electric current to the city. It rendered bills from August, 1918, to November, 1919, monthly, showing the electricity so furnished and the rates therefor in accordance with its scheduled charge. The city refused to make payment excepting at the franchise rate. On March 5, 1919, the Public Utilities Act (chapter 192, Laws 1919) became effective, and by operation of law, as plaintiff maintains, the rates fixed by plaintiff's schedule became the legal rates for this public utility within the defendant city. The amount so claimed for current furnished for pumping is the amount alleged in the second cause of action.

In 1908 the city constructed and occupied a city hall, a large brick building consisting of three floors. On the second floor a large room some 30 by 40 feet in dimension was fitted up as a public library and reading room. There, from December, 1908, until about December, 1918, such library and reading room was maintained and electric current for lighting this room, as well as the building, was furnished by the plaintiff. In the year 1914 the plaintiff furnished the city a statement for the current furnished as shown by a separate meter. The city refused payment on the ground that it was the duty of the plaintiff to furnish this current in accordance with the provisions of the ordinance. Again a claim was presented and rejected before the commencement of this action. The amount thereof constitutes the third cause of action.

Decision.

[1] 1. Electricity...