173 N.W. 739 | S.D. | 1919
This action was brought by plaintiff city to restrain defendant from' putting in effect a new schedule of rates for electrical current to 'be furnished by defendant to its patrons in plaintiff city. It appears from the allegations of the complaint that the said, city, by ordinance, did, some 10 years ago, grant to certain parties a franchise under which such parties were authorized to install in said city, an electric light plant, togethef with the necessary poles, wires, cables, etc. It is undisputed that defendant has succeeded to all of said parties' rights under such franchise. This franchise was to extend for 20 years. One of the provisions of said franchise was:
“The grantee shall have the right to charge a maximum rate of fifteen cents per kilowatt hour for electricity furnished consumers connected to its system, but said grantee shall have*223 the right to charge for such electricity a less rate or rates consistent with the uses for which it may be puc, and to enable said grantee to successfully compete with like systems of work or other agencies employed __in lighting, heating or other uses to which electricity may be put.”
It was also provided in- such franchise that the grantees therein should furnish services “under reasonable regulations, to be approved by the city council of' said city,” and further that said grantees should have the right to make such rules and regulations, not in conflict with the provisions of said franchise or with the laws of this state or of public policy, as might be necessary for the sale of current and the proper conduct of such grantees’ said business “subject to the consent and approval of the city council of said city”. It is alleged that, after the passage of such ordinance and the granting of such franchise, defendant did submit to the city council of plaintiff a schedule of prices for the sale of electricity in said city, which said schedule was approved by the city and afterwards acted upon by the defendant. It is alleged that in 191-8 defendant promulgated a new schedule of prices, materially increasing the prices that had been theretofore established under the approval of the city council, but in no case exceeding 15 cents per kilowatt hour; and it is alleged that said defendant intends to and is about to enforce the payment of such prices. It is to restrain the nutting into effect of such schedule of prices that this action is brought. Defendant demurred to the complaint on the ground that it does not state facts sufficient to> constitute a cause of action. The demurrer was sustained, and this appeal is from the order sustaining same.
“to provide for the lighting of streets and public grounds, the laying down of gas pipes, and erecting of lamp posts for conveying electric lights, telegraph and telephone lines, and to regulate the distribution, sale and use of gas or other illuminative fluids.”
Since such ordinance was passed, plaintiff city has become incorporated under the general laws of the state.
Appellant, for the first time in this court, urges that it never
The order appealed from is affirmed.