Mackin v. Portland Gas Co.

61 P. 134 | Or. | 1900

Lead Opinion

Mr. Justice Bean,

after making the foregoing statement of the facts, delivered the opinion of the court.

The only question on this appeal is whether the court below erred in sustaining the demurrer to defendant’s answer, and ordering a peremptory writ. Briefly, the facts are that in March, 1897, the plaintiff purchased gas of the defendant for use at No. 284 Morrison Street, under a contract which provided that, in default of the regular payment of a bill, the company would discontinue the supply until payment should be made. Some time in that month he quit using the gas, and left, as the defendant alleges, an unpaid bill of $5.25. Thereafter, and in September, 1899, he again applied to’ the company for gas to be used at No. 107 Fourth Street, and it was furnished him up to November 11, when he was notified by the defendant that unless he paid the old bill it would be discontinued. This he refused to do, and the company cut off the gas. Upon these facts, the inquiry is whether the plaintiff is entitled to a writ of mandamus to compel the defendant to turn on the gas.

1. ’ The right of a court to compel by mandamus a company engaged in furnishing gas for general consumption to supply all persons along its mains or conduits who offer to and do comply with its rules and regulations is undoubted and unquestioned: Haugen v. Albina Light & Water Co., 21 Or. 411 (14 L. R. A. 424, 28 Pac. 244); State ex rel. v. Nebraska Teleph. Co., 17 Neb. 126 (52 Am. Rep. 404, 22 N. W. 237); Crumley v. Watauga Water Co., 99 Tenn. 420 (41 S. W. 1058); Shepard v. Milwaukee Gaslight Co., 6 Wis. 539 (70 Am. Dec. 479, and note, 27 Am. Law Reg. 277).

2. And the authorities are agreed that such a company may adopt and enforce whatever reasonable rules and regulations may be necessary to protect its interests, which would include one providing that the supply of gas may be discontinued if a customer fails or neglects to pay his bills when due: American Waterworks Co. v. State ex rel., 46 Neb. 194 (50 Am. St. Rep. 610, 64 N. W. 711, 30 L. R. A. 447); State ex rel. v. Sedalia Gaslight Co., 34 Mo. App. 501; Tacoma Hotel Co. v. Tacoma Light & Water Co., 3 Wash. St. 316 (28 Pac. 516, 14 L. R. A. 669, 28 Am. St. Rep. 35).

3. The contention for the defendant is that, under its rules in force at the time the contract was made with the plaintiff, and which became a part of the contract, it had a right to discontinue the supply of gas to a customer at one set of premises until payment should be made of a delinquent bill for gas furnished him at another, and in this we think it is supported by the authorities. The cases of People v. Manhattan Gaslight Co., 45 Barb. 136, and Montreal Gas Co. v. Cadieux [1899] App. Cas. 589, are in point. In the former it appears that the relator commenced taking gas in 1858 at No. 61 Seventh Avenue, and was supplied with same until the twenty-eighth of December, 1861. He paid his bills up to the nineteenth of August, 1861, but not thereafter. In May, 1864, he applied for gas at No. 121 West Sixteenth Street, which was furnished without objection on account of the former indebtedness until the ninth of February, 1865, when the compan)'- shut off the supply, and refused to furnish any more because of his failure to pay the balance due for gas furnished at No. 61 Seventh Avenue. A judgment denying an application for a mandamus requiring the defendant to supply gas at No. 121 West Sixteenth Street was affirmed. In Montreal Gas Co. v. Cadieux [1899] App. Cas. 589, the statute defining the powers of the gas company provided that “if any person * * * supplied with gas by the company shall neglect to pay any rate, rent, or charge due to the * * * company at any of the times fixed for the payment thereof it shall be lawful for the company * ■ * * on giving twenty-four hours’ previous notice to stop the gas from entering the premises, service pipes, or lamps of any such person * * * by cutting off the said service pipe or pipes, or by such other means as the company shall think fit.” The respondent was a customer of the company. He had two sets of premises in Montreal — No. 1125 Notre Dame Street, and No. 282 St. Charles Borromee Street, where he resided — and took gas for both. The company cut off the supply from No. 1125 Notre Dame Street for nonpayment of the bill for gas furnished to that house. This measure had no effect in producing payment, whereupon the company gave notice that unless the other bill was paid it would cut off the gas at his residence, and, after repeated notices to that effect, carried its threats into execution, and cut off the gas at his residence, as well as at No. 1125 Notre Dame Street; whereupon he brought an action to compel it to continue the supply of gas at his residence, and, upon appeal to the privy council, it was held that he was not entitled to the relief demanded. In the opinion it is said: “The only question is a question of fact. Is the respondent, in the words of the act, a person supplied with gas by the company who has neglected to pay a rate, rent, or charge due to the company at the time fixed for the payment thereof? It cannot be disputed that he is. The occasion, therefore, has arisen which authorizes the company to stop the gas from entering his service pipes. There is nothing in the act to limit the right of the company to the service pipes of the defaulter in a particular building, or connected with a particular meter, in respect to which the default has been committed. There is nothing in the act to throw the rate, rent, or charge for gas upon the premises for which the supply is furnished, or to make it payable out of the premises of the defaulter. The supply is to the consumer, and the default is the consumer’s default. His liability to the company is a liability for the whole of the debt which he owes them at the time.”

This argument seems particularly applicable to the rule of the defendant. There is nothing in it limiting the right of the company to shut off the gas to the particular building in which default has been committed, but the provision, in effect, is that, in default of the regular payment of a bill by a customer of the company, it will not supply gas to him until payment is made. The cases principally relied upon by plaintiff are distinguishable from the one at bar. Wood v. City of Auburn, 87 Me. 287 (32 Atl. 906, 29 L. R. A. 376), was a suit to enjoin the defendant from cutting off the supply pending a judicial investigation; and, besides, in that case, and also in State ex rel. v. Nebraska Teleph. Co., 17 Neb. 126 (52 Am. Rep. 404, 22 N. W. 237), there was no rule of the company or stipulation in the contract providing for shutting off the supply in default of payment of bills. In Gaslight Co. v. Colliday, 25 Md. 1, the contract provided that gas should be introduced into the premises described, “and that in default of payment for gas consumed in said premises the flow of gas shall be stopped until the bill be paid,” etc., and the court very naturally held that under such rule the company could not shut off the supply at one building on account of a default in payment for gas furnished another. Lloyd v. Wash. Gaslight Co., 1 Mackey, 331, was also based upon the construction given by the court to the contract between the company and the consumer. If, therefore, we take the allegations of the answer to be true (as we are bound to do on this appeal), the defendant, under its rules and the terms of the contract, had a right to refuse to supply the plaintiff with gas at No. 107 Fourth Street, because he had made default in payment for gas previously furnished to him at other premises.

4. The plaintiff contends, however, that, taking the alternative writ and the answer together, it appears that there is an honest controversy between the company and the plaintiff concerning the bill for gas furnished at No. 284 Morrison Street, and the defendant had no right or authority to cut off the supply in order to coerce the payment of the disputed bill. But this is an application for a peremptory writ of mandamus, and to entitle plaintiff to the relief demanded his right must be clear. If he has paid or tendered payment of the rates legally due, he is entitled to the writ; otherwise, not: People ex rel. v. Green Island Water Co., 56 Hun, 76 (9 N. Y. Supp. 168). It is said to be well settled that a court of equity will, in cases of this character, prevent by injunction the shutting off of the supply pending the determination of a dispute between a customer and the company : 27 Am. Law Reg. 283; Sickles v. Manhattan Gaslight Co., 64 How. Pr. 33; Wood v. City of Auburn, 87 Me. 287 (29 L. R. A. 376, 32 Atl. 906). But a mandamus is an affirmative remedy, and before a peremptory writ will issue the plaintiff’s right must be clearly established: 2 Spelling, Extr. Relief, § 1386; American Waterworks v. State ex rel., 31 Neb. 445 (48 N. W. 64); State ex rel. v. Board of Sup’rs of Delafield, 69 Wis. 264 (34 N. W. 123). We are of the opinion, therefore, that the court below erred in sustaining the demurrer to the answer. The judgment is reversed, and the cause remanded for such further proceedings as may seem proper, not inconsistent with this opinion.

Mr. Martin L. Pipes for the motion.

Reversed.

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Rehearing

Decided 13 August, 1900.

On Motion for Rehearing.

The gas company demanded and received a deposit of $7 from Mackin as security for the very gas it is withholding, and it has the deposit still. Under this condition the decision of the court necessarily includes the proposition that a rule of the company is reasonable that permits it to refuse gas to a customer who has deposited security for his bill, or paid for his gas in advance, because he owes for other gas already consumed. Such a proposition is not just and is not the law. If that rule is to be upheld, it must be on the principle that a gas company has a remedy for the collection of debts due it that no other citizen has. Such a rule is not for its protection, for it is already protected by the deposit. The enforcement of this rule is coercion pure and simple. The company cannot shut off the supply that has been paid for in advance, because an old bill is unpaid: Merrimac River Sav. Bank v. Lowell, 152 Mass. 556 (10 L. R. A. 122, 26 N. E. 97).

When the company received and kept the money to pay for the gas it was bound to furnish that gas; our right is clear to the gas already paid for on the conceded facts, and we are entitled to the writ. The court has fallen into the error of supposing that the question to be decided is the justness of the bill, instead of the fact of the dispute. When a bill is honestly disputed, it is the duty of the company to furnish the gas, and let the dispute be settled by an action. It is never the duty of the consumer to prove that he does not owe the bill, but the company must prove that he does.

Per Curiam.

The deposit of seven dollars, mentioned in the petition for rehearing, it is alleged by the alternative writ was made at the time plaintiff applied for gas at No. 107 Fourth Street, as “security for the payment of the reasonable charges” for gas furnished, “which sum the said company received and still holds for such purpose.” It is also averred and admitted that from the twenty-seventh of September to the eleventh of November, 1899, plaintiff used gas for which he has not paid, and for which the money remains a security. The record does not disclose the amount of the unpaid bill. It may be over or under the amount of the deposit. I11 either case, the contention that such deposit is, in effect, a payment in advance for the gas which the company now refuses to furnish is clearfy without merit. The other questions so ably argued in the petition were all considered on the original hearing, and we see no reason to depart from the conclusions then reached. The petition for rehearing is denied. Rehearing Denied.