State ex rel. Shewalter v. Jones

JOHNSON, J. The city of Independence is engaged in the business of providing electric light to its citizens. Relator, who used the light in her home, became delinquent in the payment of the bills for two months and on account of the delinquency, the superintendent of the business shut off the electricity and discontinued the service. Relator at once paid the [303] bills and demanded the restoration of the service, but the superintendent refused compliance with the demand except on condition that relator pay a penalty of one dollar. Relator refused and brought suit by mandamus against the respondents to compel them to restore the light. An alternative writ was issued, respondents filed their return, the cause was tried, judgment was entered in favor of respondents and relator appealed. The evidence of relator tends to show that in discontinuing the service, respondents acted arbitrarily and oppressively but her evidence is opposed by evidence of respondents to the effect that this act of the superintendent was reasonable and proper and was performed pursuant to rules and regulations prescribed by the city. In the view we take, all respondents contend for on this branch of the case may be conceded and we shall assume, arguendo, that relator was delinquent; that under the rules prescribed by ordinance, the superintendent was compelled to discontinue the service and that in so doing, he acted with propriety and without oppression. An ordinance of the city provided “that all bills for electric lights furnished customers shall be discounted ten per cent if paid on or before the tenth of each month and if the same be not paid by the twentieth of each month', the electric light furnished to such delinquent shall be cut off. Any person whose electric light may have been cut off under the terms of this ordinance may be reinstated upon payment to the city clerk of all bills for electric light which may be in arrear and a penalty of fifty cents.” Apparently, the superintendent fell into the error of demanding one dollar instead of fifty cents from inferring that a written contract existed between relator and the city which, in the printed form used in all such instances, contained the provision that “the total bill due must be paid and $1 in addition, before [304] ■service shall be reinstated on the premises.” No such contract existed between the parties and, therefore, the right of the city to exact a fee or penalty for turning on the current must rest, if it exists, on the ordinance we have quoted. Our decision, however, will leave out of account this error of the superintendent and for present purposes will treat the case as though he had demanded payment of fifty cents instead of one dollar. These concessions reduce the case to a single question: Is the city entitled to exact payment of a penalty of fifty cents from relator as a condition precedent to a resumption of the discontinued service? The trial court answered that question in the affirmative; we answer it in the negative. Necessarily, most public utilities are monopolies. Whether owned and conducted by municipalities or by public service corporations,- they deal in the prime necessities of urban life and must be and are subject to the control of the courts to the end that all classes of people may enjoy proper service without discrimination or individual oppression. The law recognizes no distinction between municipal governments and public service corporations in the service of the public. Municipal ownership imposes the duty on the city to give reasonably good service, to treat all classes of citizens alike, and to impose only such rules and regulations as are reasonable and just. If we thought the ordinance under consideration was reasonable in the rule sought to be enforced by the city, we would say that relator has no case since the law would presume that she knew of the ordinance and would imply a contract between her and the city of which that ordinance would be a part. But we say the ordinance is unjust, discriminatory and, therefore, oppressive. That part of the regulative ordinances which authorized the city to discontinue the service of a delinquent customer is reasonable for, obviously, neither [305] the city nor a private corporation could run- its business successfully without some such regulation. [Vanderburg v. Gas Co., 126 Mo. App. 600.] But when the delinquent customer pays the amount due on his bills at the time the service was shut off, he is entitled to have the service restored without the imposition of any penalties. Even on the theory that the penalty is so-called and is nothing more than a reasonable charge to cover the expense of shutting off and turning on the light, the right to enforce it cannot be recognized. The expense of turning on and off the current enters into the monthly rates charged for the service. This is made certain by the fact that no charge, as such, is made to patrons for such service. If a man should change his residence in the city, his light would be turned off at his old abode and turned on 'at. the new without extra charge. To force relator to pay such extra charge would be to compel her- to pay again for what she already has paid, and this not only would be discriminative but would accord the city the right to use its monopoly as an instrument of extortion. These views are well supported by authority. [State ex rel. v. Tel. Co., 93 Mo. App. l. c. 361; Water Co. v. State, 46 Neb. 194; Turner v. Water Co., 171 Mass. 329; Shepard v. Gas Co., 6 Wis. 536; Smith v. Water Co., 104 Ala. 315; Smith v. Tel. Co., 42 Hun (N. Y.) 454.] The case of Water Co. v. State, supra, is squarely in point. There the Supreme Court of Nebraska says: “The cost and expense of turning off and on the water for a patron enters into and forms a part of the semiannual rent paid in advance by such patron under the rules of the company. It would be unjust to permit the Water Company to exact payment for this service a second time. An enforcement of the rule would compel a citizen who had once made default in his water rent, though he afterwards paid all such rents, to pay [306] a greater price or rate for water than that paid by another citizen for the same water under the same conditions.” This ruling received the express approval of the. Supreme Judicial Court of Massachusetts in Turner v. Water Co., supra, and we think its soundness cannot be successfully questioned. The point is made by respondents of a defect of proper parties, but this is not before us on the record, and will not be considered. The learned trial judge should have adjudged the issues for relator. The judgment is reversed and the cause remanded with directions to issue the peremptory writ. All concur.