86 Kan. 86 | Kan. | 1911
The plaintiffs owned an office building1 in Iola, and prior to January 1, 1910, had been paying for natural gas a flat rate of fifteen cents a month for each light and $2 a month for each heating stove. December 30,1909, the city enacted an ordinance, taking effect January 1,1910, providing for a charge of twenty cents per thousand cubic feet for gas and a minimum charge •of fifty cents per month whether fifty cents’ worth was used or not. Section 1 provides that consumers shall be •required to use such meters as shall be approved by the ■city, and that but one meter shall be furnished by the city for each service pipe taken from the mains, except “where two or more houses use gas from the same line in which case a meter shall be installed for each such house, all meters shall be set between the stop box and the distributing pipe under the supervision of the city gas inspector. . . . Where two or more independent users, use gas from the same service pipe, except as •above provided, the city will look to the property owner and not to the independent user for gas rates. All meters furnished under this section shall be furnished by the city free of rent therefor, but the applicant shall pay the expense of installation.” Section 2 provides that where any building is owned by two or more owners, each owning separate parts, each part shall be ■considered separate property, and a meter shall be furnished under section 1 for each separate part. Section 10 provides that “the city will furnish extra meters to the individual for his tenants for the monthly rental of 20 cents per meter per month, applicant to pay the cost of installation.”
The plaintiffs alleged that their building was piped in pursuance of an ordinance of 1904, calling for flat Tates, and that the ordinance of 1910 is void in the respects already mentioned, because unreasonable and ■discriminating, and prayed that the city might be en
None of the evidence is brought up. The question therefore is whether in the absence of the evidence we should say that the ordinance is void for the reasons specified. The plaintiffs in their brief say that if the city has the power to prescribe rules and regulations
While no specific statutory authority is cited for the enactment of an ordinance fixing rates, we shall assume, as the plaintiffs apparently have done, that such power exists by implication and under the general power vested in cities of the second class to make contracts and enact ordinances. The council evidently deemed it proper and reasonable to collect fifty cents a month from each patron whether he used gas amounting to that sum during the month or not, on the theory that this minimum charge would pay for reading meters and other services performed by the city in connection with the service, although the amount of gas used in. one month might not entitle the city to this sum.
The. provision regarding service pipes was manifestly inserted upon the theory that the city could not as well afford to keep track of numerous tenants as could the owner of the property, unless he chose to provide for separate service pipes.
The twenty-cent rental for meters placed in buildings for the purpose of enabling the landlord to know how much gas each tenant used was doubtless deemed a reasonable compensation for the service and expense on the part of the city. What the exact circumstances were and what facts may have justified or failed to justify the council in these supposed views we do not know. No provision appears requiring anyone to pur
As it is impossible to know how much gas any tenant would use during any given month or how frequently “the amount would be less than 2500 cubic feet it would be a mere matter of speculation as to whether the fifty-cent minimum charge would operate as a material burden upon any consumer or not, and in the absence of any showing to that effect we can not say that it would or that the ordinance is in this respect .unreasonable. The provision would apply only to the three meters used for metering gas to the premises, and there is nothing to indicate that less than 2500 feet would pass through either one of these in a month.
The requirement that a landlord either provide separate service pipes or be responsible for all the gas used in his building is said to be a discrimination .against tenants merely because they are tenants, although they be ready, able and willing to use and pay for the gas desired by them. The plaintiffs cite as authorities upholding this contention, Thornton on The Law Relating to Oil and Gas, §§ 526, 586, and State v. Butte Water Co., 18 Mont. 199, 44 Pac. 966, 32 L. R. A. 697, which holds that the refusal of a water company to supply water to a tenant in the possession of •a house, when he is ready to pay for it in advance, can not be justified by a by-law declining to contract for water except with owners or their authorized agents. But that was the case of one tenant in possession and occupancy of a house, and not one in which a tenant in an office building demanded the service. It is not deemed, however, that this provision was made for the purpose of discriminating against tenants, but xather for the purpose of treating tenant property as
The regulation being one contained in an ordinance it is presumptively reasonable until the contrary is shown or unless it is unreasonable or discriminatory on its face. Having none of the evidence before us, and it not appearing prima facie unreasonable but reasonable, it must for the purposes of this case be upheld.
The complaint that a counterclaim was considered and passed upon without the intervention of a jury, and in an injunction suit, is fully answered by the fact that no objection or request for a jury appears to have been made. There was an exception to the judgment, but this was too late. Section 296 of the civil code provides that in actions arising on contract a jury may be waived by written consent, filed with the clerk, or by oral consent in open court, entered in the journal. In Cavenaugh v. Fuller, 9 Kan. 233, cited by the plaintiffs, a demand for a jury was refused. Beery v. Naylor, 65 Kan. 368, 69 Pac. 347, is also cited, which holds that in an action on a creditor’s bill where no second judgment was prayed for it .was error to render a money judgment. It was expressly decided in The State v. Cutler, 13 Kan. 131, that where the parties try an action before a judge at chambers without any objection or exception to the action of the judge in trying the case without a jury, they will be held to have waived a jury trial. The general rule is that the.waiver may be by any conduct or acquiescence inconsistent, with an intention to insist on a jury trial. (24 Cyc. 154.) The plaintiffs are presumed to have known their rights, and having failed to assert them at the proper-time they can not be heard to do so now.
The judgment is affirmed.