Hunt v. Marianna Electric Co.

Smith, J., (after stating the facts-). (1-2) It does not appear from the pleadings in this case why the change in the system was made. For aught we know from the pleadings, it may have been ordered by, the city council, buit, however that may be, it may be assumed from the ■state of ‘the pleadings that the change was permitted by the council. We can not know what the terms of the franchise were under which appellee company was operating, as that information is not disclosed in any of the pleadings; but we do know that such matters are within the control and under the regulation, to some extent, of the city council. In the matter of granting franchises involving the use of the city streets the city has the right to impose proper conditions to secure a suitable and adequate service to the public. It may not only impose these conditions in the first instance, but it may impose conditions after the grant of the franchise, subject only to the condition that it may not impair 'the obligation of any contract made with the public service corporation. But, not even by contract, can the city convey away its right of regulation under the police power. Hot Springs Electric Light Co. v. Hot Springs, 70 Ark. 300. (3-4) Notwithstanding the allegation of the pleadings that the service formerly rendered by the electric company was satisfactory and sufficient, it is not alleged that the change was needlessly .and capriciously made, and even though there may have been no municipal requirement in regard to this change, the electric company would have the right to make such change in its system and method of operation as, in the exercise of an honest judgment on the part of its managing officials, was necessary to a proper service of the public, and there is no allegation that 'the change was not an advantageous one from the standpoint of the general public, although it is alleged that it was an unnecessary one from the standpoint of these plaintiffs. Counsel have not .cited us to any case .discussing or deciding the questions here involved, and we have been unable to find any, and accordingly we have been com- pelled to decide this case upon a consideration of what appears to be the general principles involved. (5) It is urged as a reason against the right of the electric company to make this change that there existed an implied contract between appellant and the company that .a current should be furnished them which would permit the use of the fixtures which they owned and which, in some instances, had been bought, and recently bought, from the company itself. If this is true, no change could ever be made, for it would hardly happen that .all fixtures would cease to be serviceable at the same time, and if a change was ever to be made it must necessarily be true .that, when it was made, there would.be some fixtures which would still be serviceable and .have a usable value with the .supply cf the old current. The pleadings concede the duty of the users of the electricity to furnish their own appliances, but this, they say, they have done and they call upon the company to make such adjustments as are necessary to adapt their fixture^ to the new system or to furnish them with new appliances; and we conceive the question in the case to be whether or not the company is under any duty to perform this service, or whether that expense should be borne by the plaintiffs. In our judgment, it not having been alleged that the change was needlessly or capriciously made, we think this expense should be borne by the plaintiffs. Otherwise, having become a part of the operating expense of the company, this would be an item to be considered in fixing the rates to be charged all consumers cf electricity and would be an expense to be borne at least by the public generally, rather than those owners who were required to supply themselves with new appliances. We are much impressed with the reasoning of the Court of Appeals of Missouri in the case of Fisher v. St. Joseph Water Co., 132 S. W. 288, where, in a discussion of a question involving, to some extent, the principles here involved, it was said: “Whether ,a public utility, such as a system .of waterworks, be owned and operated .by the municipality or by a private corporation, the consumers in the long run must pay, not only the operating expenses of the business, but also the whole cost of construction and expense of maintenance and betterments, together with a reasonable profit on the investment, if the business be in the hands of a private corporation. It would seem to be more fair and just that each consumer should bear the construction expenses relating exclusively to his own service than that the gross sum of all such expenses should be ratably assessed against all the consumers through the medium of an increased charge for the service.- In one form or another 'the consumers must foot all the bills, and we think it is reasonable; so far as it may be done, to make each pay for what he gets.” It is no doubt true that these plaintiffs, from their' standpoint,-will be required to incur an expense without fault on their part; but some one at last must bear this expense, and we think that burden must fall upon them. Opportunity for wide choice exists in the selection of appliances for the use of the electric current, and interminable confusion might ensue and great injustice be done if the company was required to take into account these various opinions and preferences resulting from the change in appliances. It was the duty of the plaintiffs in the first instance to furnish their own appliances, and the change of system not having been made needlessly or capriciously we think it equitable that they should acquire, at their own expense, such fixtures as are adapted to their purposes to receive the current under the new system. Moreover, there are no allegations in the complaint from which it could be said that there was any privity of contract requiring the company to furnish the appellants with any particular kind of current. There was an allegation- in the complaint that the change in the system was made without notice to certain, owners, who, in ignorance of the change, turned on the current of the new system whereby their motors were burned out and otherwise damaged. We have not thought it proper or necessary to consider in this case the question of the liability of the electric company to such owners, and, if they have any cause of action growing out of a failure to give notice of the change, it is not concluded by this opinion. The decree of the court sustaining the demurrer will, therefore, be affirmed. McCulloch, C. J., -disqualified and not participating.