123 Minn. 231 | Minn. | 1913
This is an appeal by plaintiff from an order denying its applica
The complaint alleges that ever since 1870 plaintiff has been engaged in the manufacture and sale of gas for heat and illuminating purposes to defendant city and to the residents therein under and by virtue of an ordinance of the city approved February 24, 1870, and accepted and agreed to by plaintiff, a copy of which is attached to and made a'part of the complaint; that this ordinance was modified and amended by an ordinance approved February 23, 1910, which was also accepted and agreed to by plaintiff, and a copy of which is also attached to and made a part of the complaint; that on July 25, 1913, the city council of defendant city “acting and pretending to act under the powers conferred upon and reserved to it” by the amendatory ordinance of 1910 passed, and the mayor of the city approved, a third ordinance, a copy of which is attached to and made a part of the complaint; that the city charter requires all ordinances to be published in the official paper of the city before they shall be in force; and that this- third ordinance will immediately be so published, unless defendants are enjoined from publishing the same.
The complaint further alleges that the value of plaintiff’s plant as a going concern is the sum of $9,990,867; that since the passage of the amendatory ordinance in 1910 plaintiff has been receiving from private consumers 85 cents per thousand cubic feet of gas, and from the city 65 cents per thousand cubic feet; that such rates and the revenue which plaintiff is receiving from all sources is not sufficient to yield a fair and reasonable return upon the value of its property devoted to the public use; that such rates are in no manner and to no extent excessive, unfair or unreasonable, and are not more than is charged at other places for like service under similar circumstances; that plaintiff’s plant at all times has been and is operated as economically and with as little expense as is practicable; that during the ensuing year the operating expenses will be increased more than $106,000 by the increased price of oil, and by
Per cent of consumers affected Saving per year at 70 cent rate
25% $ 0.98
28% 2.53
20% 3.92
10% 6.37
6% 7.76
4% 7.97
2% 12.26
1% 17.16
1% 12.26
i% 19.58
24% 43.14
The answer admits the allegations of the complaint relating to the adoption of the three ordinances therein mentioned, but, with certain exceptions not of special importance, puts in issue all other allegations therein.
It then alleges that plaintiff’s “capital investment” is no more •than $4,318,179; that its net earnings for the year ending March 31, 1913, were $765,777; that between April 1, 1910, and January
The reply alleges that the net earnings of plaintiff for the year ending March 31, 1913, after deducting operating expenses, taxes and depreciation, were no inore than $614,636.41; that the' amount distributed to its stockholders in dividends between April 1, 1910, and January 1, 1913, was no more than $634,000, of which $420,-000 was a portion of its surplus and undivided profits accumulated prior to April 1, 1910;. that the increase in consumption of gas mentioned in the answer was due largely to increase in population and not to the reduction in rates therein referred to; and that this action was designed and intended to be and is the action provided for and contemplated by the ordinance of 1910.
The ordinance of 1870, referred to and made a part of the complaint, gave plaintiff the exclusive right to manufacture and sell gas within the city of Minneapolis. It provided for fixing and determining the rates to be charged the city, but made no provision for regulating or determining the rates to be charged private consumers. It also provided that the city might purchase the property at the expiration of 40 years upon the terms therein prescribed, and further provided that, if the city should decline to purchase upon these terms, the rights of plaintiff should continue for an additional
Section 3. “Regulation of rates. That at any time after the •expiration of three years from and after the first day of the month succeeding the acceptance by the company of this ordinance, and at any time thereafter, but not oftener than once in five years, the -city council may, or if requested in writing by the company so to do, shall, by ordinance, fix and determine the rates to be charged by the company both to the city and to private consumers therein; which rates shall in each instance be so fixed and determined, subject to the provisions of section 5 hereof, and independent of whether • or not the laws now or hereafter in force give to the city council the right, power and authority to so fix and determine the same. The •company shall thereupon comply with such ordinance as to rates, subject only to the provisions of said section 5, and furnish gas at rates not to exceed those so fixed until the same shall be again fixed and determined as herein provided. And the company shall also at all times, unless otherwise determined by the city council, furnish .gas to consumers other than the city and its various boards and departments, at a uniform rate, and without any discrimination between them.”
Section 5. “Rates and prices to be reasonable. That the rates .and prices which shall be fixed and determined by the city council -under and pursuant to the provisions of section 3 of this ordinance, and the price for the use of the lamps and other apparatus and appliances and the service to be rendered and performed by the •company pursuant to the last preceding section (section é, not here material), shall always be just and reasonable, and shall not be so fixed as to fail to afford a fair and reasonable return upon the ■ company’s capital investment, nor until the company shall be given ;a hearing or an opportunity therefor before the city council or a*238 committee thereof as to the reasonableness of the same; and the reasonableness of all snch rates and prices shall always be subject to review and correction in any action or proceeding which shall be instituted therefor by the company in any court having jurisdiction of the subject matter.
“That the company’s ‘capital investments/ as that term is used in this ordinance/shall be and mean the fair and reasonable value of its plant as a going concern, having regard to its condition of repair and its adaptability and capacity for generating and furnishing gas. In determining such value, no value shall be placed on good will, or upon the unexpired term of any franchise, or on future profits based upon any unexpired terms thereof; and in the determination of such value no regard shall be had to the company’s capitalization, as represented by its outstanding stocks and bonds.
“That the term ‘plant’ as used in this ordinance, shall in every case be understood to mean all and every part of the property belonging to or under the control of the company, which is used in the exercise of any franchise belonging thereto, and which is within the limits of the city, and necessarily devoted to the generating and furnishing of gas to the city or the inhabitants thereof, including all lands and all rights therein and all buildings, machinery and apparatus devoted to such service.”
In 1913, the time having arrived when a new rate might be fixed, both plaintiff and the city employed experts with a corps of assistants to determine the amount of plaintiff’s “capital investment” as defined in the ordinance of 1910, to determine plaintiff’s net income therefrom, and to determine the rates necessary to be charged to consumers in order to afford a fair and reasonable return upon such “capital investment.” Both sets of experts made an exhaustive examination and report but differed widely in their results. Hearings were had before the proper committee of the city council at which the experts testified at length and went into the matter in detail.
Beal estate .....................................$ 552,779
Buildings ...................................... 490,043
Apparatus...................................... 1,310,482
Piping, etc..................................... 181,865
Mains, etc. ....................................... 2,089,964
Street lamps, service, etc.......................... 905,395
Meters in use.................................. 550,854
Meters in stock...............•................... 15,851
Stable and garage equipment and tools ............ 21,436
Office equipment.................................. 55,923
Working capital................................. 500,000
Depreciation reserve fund......................... 346,275
Going value.................................... 2,250,000
Total ..................................$9,990,867
Mr. Marks, the expert employed by the city, computed and determined the “capital investment” as follows:
Beal estate ....................................$ 226,944.00
Buildings and structures ....................... 275,510.65
Contents of buildings and structures.............. 470,760.92
Yard connections.............................. 31,919.18
10% on above two items........................ 50,268.01
Holders and tanks ............................ 629,026.00
Street mains and lamp posts.................... 1,646,689.90
Services ..................................... 377,334.00
Meters ...................................... 338,943.27
Tools and equipment.......................... 20,783.00
Working capital............................... 250,000.00
Total $4,318,178.93
Mr. Baehr estimates that a rate of 96 cents per thousand cubic feet of gas is necessary' to afford a return of 6% upon the capital investment. Mr. Marks estimates that a rate of 67.8 cents per thousand cubic feet will afford a return of 6 per cent thereon.
After considering the evidence before it, the city council, acting-under the authority conferred upon it by the ordinance of 1910, passed, and the mayor approved, the ordinance of 1913 which, omitting- the preamble, is as follows:
Section 1. “That from and after Sept. 1, 1913, the prices charged by the Minneapolis Gas Light Company for gas delivered by it to the city of Minneapolis, and its inhabitants shall not exceed the prices following, respectively:
“To the city and to the various boards and departments thereof, sixty-five (65) cents per thousand cubic feet.
“To private consumers within said city, seventy (70) cents per thousand cubic feet.
Section 2. “Except as to the rates or prices aforesaid, said ordinance of February 23, 1910, shall remain in force and all the terms and conditions thereof shall be applicable in all respects as if the prices herein fixed had been originally agreed upon.
Section 3. “This ordinance shall take effect and be in force from and after its publication.”
As soon as the ordinance was approved by the mayor and before it was published, plaintiff began this action to have it adjudged void as unreasonable and to enjoin defendants from publishing it or putting
In its decision upon the application for a temporary injunction, the court recited plaintiff’s motion in full as stated in the notice thereof, and then concluded its decision as follows:
“And the court having duly considered said motion, and the affidavits, records and files offered by the respective parties, and the arguments of counsel:
“It is ordered, that said motion be, and the same is hereby, denied, the order to show cause accompanying said motion discharged, and the restraining order therein terminated and annulled.”
This purports to be and in terms is a decision upon the merits upon all the questions presented.
The judge, however, appended to his order a memorandum from which it is claimed that he only passed upon and determined that the court had no authority to prohibit the publication of the ordinance and did not consider or determine the other questions presented. The memorandum recites that plaintiff applied for an injunction restraining the publication of the ordinance, and, in effect, expresses the opinion that such an injunction would be in violation of the contract between the parties; that the city has the right to complete the act of fixing the rates by publishing the ordinance; and that the remedy of plaintiff is to appeal to the courts, after the rates have
The question before this court is whether, upon the facts before the trial court, the refusal of that court to issue a temporary injunction was error. The rule in such cases, established by numerous decisions of this court, is this: “Where, upon the hearing of an order to show cause, or a motion, an issue of fact is raised by the affidavits and evidence of the respective parties, the determination thereof by the court will not be reversed by this court if there be evidence reasonably tending to support it. First Nat. Bank of Winona v. Randall, 38 Minn. 382, 37 N. W. 799; Bausman v. Tilley, 46 Minn. 66, 48 N. W. 459; State v. Madigan, 66 Minn. 10, 68 N. W. 179.” Stai v. Selden, 87 Minn. 271, 92 N. W. 6; First State Bank of Montgomery v. Schatz, 104 Minn. 425, 116 N. W. 917; Perkins v. Gibbs, 108 Minn. 151, 121 N. W. 605; Viers v. Perry, 112 Minn. 348, 127 N. W. 1120; Kloppenburg v. Minneapolis, St. P. & S. S. M. Ry. Co. supra, page 173, 176, 177, 143 N. W. 322.
' It is conceded to be settled law that rates established by a municipality under legislative authority are presumed to be fair and reasonable. It is also a well-settled rule that where parties by contract authorize and empower any man or body of men to determine a certain matter according to rules prescribed by the contract and within limitations therein fixed, such determination, when made, is presumed to have been made in accordance with the provisions of the contract and to be proper and correct. We think this rule applies to the present case, and that the rates fixed by the city council are
The plaintiff bases its motion for a temporary injunction upon the complaint and upon affidavits summarizing the testimony given before the city council by its experts. Defendants base their opposition to the motion upon the answer and upon affidavits summarizing the testimony given before the city council by experts employed by. the city. According to the affidavits presented by the city, the rate fixed in the ordinance of 1913 is reasonable and adequate. According to the affidavits presented by plaintiff, this rate is inadequate and unreasonably low.
Upon the showing made this court cannot say that the weight of evidence is manifestly or palpably in favor of plaintiff’s contention that the proposed rate is unreasonably low. There is substantial and credible evidence in support of such contention. There is also substantial and credible evidence in support of the contention that such rate is fair and adequate. The burden is upon plaintiff to show that it is not adequate. The evidence is so conflicting and so nearly balanced that the case is within the rule above stated, and the decision of the trial court must stand unless plaintiff is entitled to such injunction upon other grounds.
Plaintiff contends that the action of the city council in fixing rates is tentative merely, and, in case an action is brought to have such proposed rates adjudged unreasonable, that they do not tahe effect until the termination of such action. Were this contention well founded, it would determine plaintiff’s application for a temporary injunction adversely to plaintiff, for, if the mere bringing of the action suspends the operation of the rates, there is no need for such injunction. Although the contract is not entirely clear we cannot give it the effect claimed.
Section 3 empowers the council to fix and determine the rates by ordinance, but provides that such rates, “shall in each instance be so fixed and determined, subject to the provisions o. oection 5.” This imposes a limitation upon the power of the council, and requires it to exercise such power under and in accordance with the restrictions
After providing for fixing the rates by ordinance, section 3 further provides that “The company shall thereupon comply with such ordinance as to rates, subject only to the provisions of said section ■5, and furnish gas at rates not to exceed those so fixed until the same ■■shall be again fixed and determined as herein provided.” This imposes an obligation upon the company to put the rates into effect ■except as it may be relieved therefrom under and in accordance with the provisions of section 5. Section 5 provides, in effect, that the ■company may institute, in the courts, any proper action or proceeding to determine whether the rates fixed by the ordinance are reasonable.
We think it is intended that the council shall determine what rates :are reasonable and establish such rates by ordinance, and that the ordinance shall go into- effect as ordinances usually do, but that ■plaintiff, if it claims that the rates so established are not fair and reasonable, may resort to the courts for a determination of that question.
The contract provides that the rates shall be fixed by ordinance. In the absence of any provision to the contrary this necessarily implies that the ordinance shall be enacted and put into effect as provided in the well known charter provisions governing such matters. The provision for a hearing before the council, the limitations placed ■upon its action, the fact that no appeal is provided and no time limited in which plaintiff may bring suit, the probability that the time when the rates should go into effect would have been expressly ■stated had it not been intended that the ordinance should take effect as ordinances usually do, and the provision that the company shall ■comply with such ordinance, all indicate that the parties intended the ■ordinance to take effect at once. It may also be noted that the action
It is also improbable that the parties intended to offer such an inducement for prolonging the litigation as would result from the construction contended for. Take the present case as an example. Plaintiff claims that the proposed change in rates will reduce its revenue over $300,000 per year. If these rates are fair and reasonable, and are eventually determined so to be, but do not take effect until the final termination of the litigation concerning them, plaintiff will receive over $800 per day as a premium for prolonging such litigation.
The fact that plaintiff does not appear to have made such claim in the trial court; that it sought by injunction to prevent the publication of the ordinance; and that it offered and still offers to give bond to refund any excess over the proposed rate received during, the litigation in case such rate be held valid, indicates that plaintiff itself understood and expected that the rates would go into effect’ as soon as the ordinance should be published.
It is also contended that the decision appealed from should be reversed under what is termed the “comparative hardship.” rule. Under this rule injunctions are frequently issued in cases in which the final outcome may be doubtful, if the injury to the moving party will be certain, great and irreparable if it be denied and the final decision be in his favor, but the injury to the opposing party, if it be granted, will be inconsiderable whatever the result. "Whether the relative injury that may be inflicted upon the respective parties by granting or refusing such injunction is such as to justify its issuance in cases in which the final outcome is doubtful is a question peculiarly within the province of the trial court to determine.
In all the cases cited by plaintiff in support of this contention the facts were materially different from those in the case at bar. In Missouri, K. & T. Ry. Co. v. Love (C. C.) 177 Fed. 493, involving-railway rates, the rates had actually been in effect for many months, and the trial court held that the proof established that they were
In Love v. Atchison, T. & S. F. Ry. Co. 185 Fed. 321, 107 C. C. A. 403, the circuit court of appeals affirmed the action of the trial court in Missouri, K. & T. Ry. Co. v. Love (C. C.) 177 Fed. 493, referred to above, but (at page 331) states the rule governing appellate courts in such matters as follows: “An appeal from an order granting or refusing an interlocutory injunction does not invoke th& judicial discretion of the appellate court. The question is not whether or not
These comprise all the cases cited by plaintiff upon this point. They state that the relative injury which may result to the respective parties, is an important and may be so disproportionate as to be a controlling element in determining whether an injunction should issue. But in all, save the two Wisconsin cases, the trial court granted an injunction. They are not cases in which the refusal of the trial court to grant such relief was sought to be overruled. In the two Wisconsin cases, the court held that the right of the moving party was clear, not doubtful, and that the trial court abused its discretion. No case is cited in which an appellate court has reversed a trial court for denying an injunction where the evidence left the final outcome doubtful.
The relative injury that may result to the parties, together with all the other circumstances bearing upon the matter, should be taken into consideration by the trial court in forming its conclusion. But where the evidence as to the merits is comparatively evenly balanced, it is only in exceptional cases that interference by an appellate court can be justified. The excerpt from the opinion of the circuit court of appeals in Love v. Atchison, T. & S. F. Ry. Co. supra, states the rule governing the Federal appellate courts in such cases. Ritter v. Ulman, 78 Fed. 222; Bradshaw v. Miner’s Bank, 77 Fed. 932, 23 C. C. A. 578; City of Terre Haute v. Farmers’ Loan & Trust Co. 99 Fed. 838, 40 C. C. A. 117.
This court has consistently followed and applied the same rule.
In each of the following cases the trial court refused to issue a temporary injunction and this court declined to interfere as the trial court was acting within the limits of its discretion. Rockwood v. Davenport, 37 Minn. 533, 35 N. W. 377, 5 Am. St. 872; Myers v. Duluth Transfer Ry. Co. 53 Minn. 355, 55 N. W. 140; McGregor v. Case, 80 Minn. 214, 83 N. W. 140; Watters v. City of Mankato,
The final outcome of the suit when it shall have been tried upon the merits is doubtful. The evidence in support of the opposing claims is comparatively evenly balanced and consists largely of opinions which are more or less conjectural. As suggested by the Supreme Court of the United States, in Louisville v. Cumberland Telephone & Telegraph Co. 225 U. S. 430, 32 Sup. Ct. 741, 56 L. ed. 1151, and Knoxville v. Knoxville Water Co. 212 U. S. 1, 29 Sup. Ct. 148, 55 L. ed. 371, an actual test by putting the rates into operation for a time may show that plaintiff’s fears as to the results are unfounded. If such test shows that the rates are too low to give a fair return upon the capital investment, the courts will not hesitate to grant relief. But in view of the uncertainties in which the question now before the court is involved, and of the principles governing the action of this court in such matters, we are not prepared to say that the trial court, under the rule of “comparative hardship,” abused its discretion by permitting the rates to remain in effect for the present.
Order affirmed.
The following opinion was filed on November 7, 1913:
Per Curiam.
Plaintiff’s application for a re-argument is based mainly upon the contention that the trial court merely determined that the publication of the ordinance should not be enjoined, and did not pass upon the other questions presented. Plaintiff applied to the trial court for a temporary injunction restraining defendants during the pend-ency of the action from publishing the ordinance, from putting it into effect, from causing the institution of any suit or proceeding to put it into effect, and from making any complaint based upon the violation of its provisions. The court denied the entire application It did not merely deny the application to enjoin the publication of the ordinance, but it also denied the application to enjoin defendants from enforcing the provisions of the ordinance.
But as the memorandum of the trial judge and the arguments in this court furnish foundation for plaintiff’s claim that the denial of the application to enjoin the enforcement of the rates was based upon grounds not going to the merits of such application, the case will be remanded without prejudice to the right of plaintiff to apply to the trial court for a re-hearing upon the question as to whether defendants shall be enjoined from putting the rates prescribed in the ordinance into effect during the pendency of the action.
In enacting the ordinance, the city council was acting within its-proper province and the facts are not such as would justify a court in prohibiting the performance of the conditions necessary to complete such action. Therefore the trial court was correct in refusing to enjoin the publication of the ordinance; but this is not to be construed as precluding consideration of the validity of the ordinance upon the merits.
The application for a re-argument is denied.