114 Ark. 498 | Ark. | 1914
(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.
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.
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.