*1 161 ZINN, Justiсe. should specify complained error of and Appellants, as trustees of the Chilili assignments, must be otherwise there Grant, brought Land in the dis- action is nothing before the court to review. trict appellee, form, court as a Rhodes v. Bank, First National 35 N.M. ejectment suit 167, determine to a 743; title 290 P. Weggs v. Kreugel, 28 small tract alleged prop- land to be the 730; N.M. 205 Supreme P. Court Rule erty appellants, injunction XV, also for Secs. 14 and 15. appеllee to restrain trespassing upon is province not the of this court It making unlawful use of the land. to read the transcript and search for error. Appellants The case was tried to the court without should have formulated a jury, theory definite close of case the court of error and have made proper appellants assignments found that not established and argued therefrom. upon any theory their casе not duty “It is not the of this court to search Judgment entitled to relief. for error specially not pointed out.” accordingly. was entered Rhodes First v. National Bank, 35 N.M. 290 P. 744. requested findings No of fact were There being nothing here by appellants. preserve any questions To court review, judgment will be been done. affirmed. review this should have Doyle, 55 P.2d McCulloh N.M. so v. ordered.
739. BICKLEY, J.,C. and SADLER, and findings exception was taken to
No MABRY, JJ., concur. beyond and cоnclusion court BRICE, J., did participate. exception general entered in the formal judgment itself. This forms no basis predicate appeal.
which to error on Lewis Tipton, 661;
v.
29 N.M.
222 P.
Moore
Brannin,
50;
v.
N.M.
P.
Rea
In addition to these fundamental CO. procedural appellants errors we find that No. 4315. assignment they filed no of errors nor did Supreme Court of New Mexico. incorporate any assignmeAt of errors in February 15, 1939. Appellants their brief. cite a number of cases in their brief pointing out application any question ques
their sought
tions to be reviewed. A brief
n (original opinion the follow- and substituted opinion of as the the court: *2 original opinion In’ former Chief the HUDSPETH, re- who has since Justice bench, from dissented therein tired ¡from majority. the views We deem proper to note this lit fact.
ZINN, Justice.
Hugo Seaberg, appellee plain- here and below, tiff sued Raton Public Service Company, corporation, be- appеllant here, $3,591.77 low and for complaint alleged interest thereon. The wrongful that the sum claimed was over- charge made in excess the established duly by year fixed in the paid by plaintiff 1926 and protest for under until June Judgment ap- 1933. was entered for the pellee, appeal and this followed. The facts which the suit is found- ed, From are follows: about 1907 until 1, 1933, plaintiff operated the Sea- June Raton, berg Hotel New Mexico. The operated was both hotel as a transient apartment hotel and as a residence and defendant, hotel. The Raton Public Company, corporation organ- is a Service Raton, Robertson, for & Crampton ized under Laws New State of appellant. organization From time Mexico. of its suit, has been en- until Fe, Sanchez, Santa & Kiker generating gaged in the business of Raton, appellee. Seaberg, for Hugo distributing electricity City of Raton CURIAM. pur- PER light, heat and other 16, 1926, March poses. On ordinance appellee’s motion consideration Upon City adopted by the of Raton known was withdrawn the rehearing,’ we have used in ured meters was ordinance these two No. which ordinance By indiscriminately light, heat and unconditionally accepted by appellant. hotel power. the terms of this ordinance carry granted a on its franchise 1919, Seaberg Mаy, After the month of ordi- City Sec. 8 of the of Raton. from time to time made additions to discrim- “That no nance reads as follows: building, building, hotel so that the company, its made ination shall be prior May, 1919, not more than 100 citi- assigns, between successors and rooms, had filing at the time of the of this City, of the zens or inhabitants extensions, making suit rooms. In assigns, shall Company, successors its knowledge and consent Seaberg, with the of the and inhabitants furnish all citizens defеndant, merely extended electric power, or City light, heat and with electric so that could be wiring therein price thereof, uniform same at the parts to all of such extensions furnished un- for like service fixed this ordinance purpose through the meters used may conditions, such or at der like measuring said com- adopted the Com- from time to time lighting, heating purposes of bination *3 never, assigns, and pany, its successors continued, until thе 1st power. Appellant however, the maximum rates exceed to day January, electricity furnish to of fixed.” herein measuring property, Seaberg Hotel to the in 1919 organization time of its From the meters for through two the electricity said current to electric furnished lighting, heating purposes and combined of oper- in and about the
plaintiff for his use Seaberg if billed therefor as and power, 5‡ basic rate of of his hotel at а ations used. had been only one meter hun- fifteen for the first per kilowatt hour court, tried to who case was the 4‡ additional and for each kilowatts dred findings hearing made of after evidence during month in ex- the kilowatt consumed find- of law. These and conclusions fact furnished current so cess thereof. follows: conclusions are as ings and meters, through but was two was measured only together and as if lumped for building is said hotel so construсt- “That plaintiff had been used. The al- one meter placed wiring is so ed, the electrical and allowed cash discount received the so therein, impossibility an it has been 10% paid furnished were for current if bills said additions and since exten- all times following 10th of the month. prior made, to plaintiff arrange for to sions were May 1, 1926, plaintiff with Beginning re- separate as to make use of so the same separate additional reduction of electricity uses of ceived for the meters 10%. charges heating power continued until system used, of and lighting, This for with- During expense all this as would 1, 1929. such been ruin- out Jan. plaintiff’s to the plaintiff destructive and received meas- busi- current ous electric ,164 ly property, and in the remain- residence resi- permanent said to as landlord
ness part property. business said portion of occupants of dential transient said landlord рroperty, as January or at time on /‘That portion thereof. other guests thereafter, would have it cost January, day of $5,000.00 equipped 1st to have so than “That more publication of defendant, Seaberg property Hotel for the said said through- generally effective which rates could have measured new use of meters in- Raton, attempted city electricity heating, separately for said of used out the for paid by plaintiff to be rates power; and if said sum lighting crease light- electricity for prop- uses of expended combined money said been for said had Seaberg power in said heating and ing, controlled erty, plaintiff could not have aforesaid, said so that Hotel, measured electricity by permanent tenants use previously es- be the thereafter portion rate would so said hotel said residence - pur- lighting for ratе tablished them to measurements to have restricted per (9‡) kilo- Nine cents poses, to-wit: according the classification for thereof fifty kilo- (k.w.h.) the first power; watt hour heating if said month, during each consumed expended watt hours said sums of more than per kilowatt hour eight (8^) cents plus wiring said purpose so $5,000.00for the dur- consumed 200 kilowatt hours the next in- separate meters could be property that per month, plus (5^) cents five ing eаch electricity for separately measure stalled electricity excess hour all kilowatt power, lighting, heating uses of hours. said 250 kilowatt away money have been thrown would said established “That all the different rates since the institution reason has the said defendant the defendant for this suit maintained separate city of the use meters electricity in abandoned different uses 1929, including a flat for the has established use of Ratоn, prior purposes combined plaintiff, within the rates to heating, lighting all users of ordinance of fixed limits city. Raton, which said ordinance estab- city of only, above maximum lished *4 “That times said at all while new addi- charge. could defendant being,made Seaberg to said tions Ho- other user elec- was no of there “That property wiring and electrical tel was be- exactly city Raton of of tricity in the thereto, the ing extended defеndant com- plaintiff, prior to either as the pany class knew said construction of and of same wiring, and day 1929, continued to furnish January, said 1st of elec- following the or plaintiff for tricity use in said large to building in the exten- being no other sions, through meters, part measured said large pure- two in a Raton used city of by billing plaintiff only if company one meter the defendant or other electricity agent were used official purposе for for combined or thereof for of purposes heating, lighting power; undertaking of determine the to amount electricity of and said plaintiff extensions and additions would used separately for plaintiff lighting not have wir- or for heating been made with or for power; ing said company therein manner defendant well extended in the afore- knew on day said except January, 1929, first of said reliance the continued and at all timеs company readiness of to thereafter bringing until the of this suit, plaintiff serve electricity plaintiff with measured made of use elec- through tricity said meters for the use furnished purposes combined to him for of lighting, of heating power. heating purposes and for power, of but at all times after said day January, 1st of “That no other electricity user of suf- day until the 1st June, 1933, of fered January increased rate on charged said company plaintiff thereafter, during any in- time electricity at the rate for furnished for volved.in that suit. lighting purposes only.” business “That charged plaintiff prior the rate Conclusions of Law. January 1, 1929, was fixed defend- prior January “2. That recognition ant of of the use many years, for the defendant company electricity through measured said meters had, within the limits of the franchise purposes lighting, for the combined of granted city to it Raton, of fixed heating рower, higher and at a rate and established rates for the use of elec- charged than that users of residence tricity Raton; in said and that it property only electricity measured in rate for Seaberg fixed a the said Hotel way, the same at a somewhat low- property, for use as both prop- residence er purely light- than that used for erty property, and business electricity ing purposes, so that plaintiff the rate to through measured meters the combined equality should on an with charged rates purposes lighting heating power, to other users of of all classes greater a rate than purely that offered res- city Raton, throughout said and that for property idential and at a lesser rate than years ten the defendant com- public that offered to the purely busi- pany recognized the rate fixed for lighting purposes, ness and thаt the rate plane equality with the rates theretofore established charged for and charged to users of all class- Seaberg use in the property, Hotel consist- city. es within the said fpr use property increasing “That charged before the rate purposes combined property residence inspec- property, and business plane aon property tion of said hotel equity made with the to other *5 appellant, argument within the structure of the such users of of all classes is without merit. city of Raton. com- complained That action appel-
“3. The rates charged to the pany rates raising permitted by in do not exceed lee the rates January 1, thereaft- on provided the ordinance. ordinance er, as to when not increased rates were higher maximum rates somewhat than the electricity in any other user or users of actually charged by appellant city, investigation said taken without appellee. In itself we the ordinance property or of the said hotel examination propriety recognition charg- find therein, any use of and said higher purposes rate ing lighting a arbitrarily was in action was taken power heating purposes. than for or plaintiff. discrimination any require so-called ordinance does not pur- mixed rate rates for combination or * * * “4-. That fix one. poses and the court cannot estopped conduct had become its own having different collecting or justification for find can Where then we plaintiff paid amounts which under judgment? court’s trial protest and which in all to amounted all, found, necessarily if be It must $3,515.89, found to be sum as above of discrimination. claim plaintiff’s in the plaintiff.” due there can discrimination Without ' parties that agree for the Counsel in recovery plaintiff’s foundation pow- City properly Raton exercised the overcharge. merely claiming this case N.M.Comp.St.Ann. granted er it appellee The discrimination passed when it fix- 90-402 the ordinance § that, had been though a rate complains is They agree rates. maximum also that use long continued established Kemp announced Lumber the doctrine partly partly business proрerty, Ry. Co., & S. Atchison T. F. N. v.Co. rate, old this is, flat residential—that 387, which 9 P.2d doctrine as stat- M. utterly was, beginning rate Jan. syllabus is follows: “Statute ed plaintiff, and was arbi- he denied maximum rates constitutes declara- fixing electricity used trarily required pay maximum are rates below reason- tion heat, light- as well as for * * * ”, applies to the ordinance able single meter, through a ing, measured by the council Raton adopted under lighting rate. purely business operating. which the then, any us, Appellee not Viewing the situation before does contend that in- similarly paid situated might the action has less other user sofar argued paid. user should have up- as an attack such deemed than His be either paid that he of the rates and claim is has reasonableness more than he It, preférred lift- or paid appear should has been because he rate. does not ed out of he claims competitors. a classification which did shown belong he and which had been estab- what rates were *6 him, person by lished and other defendant in Raton. It is the of put plaintiff damaged has been a in not shown into classification that was appel- preferential belong. he claims he does not The given to treatment others. argues lee that this discrim- constitutes a Although was the court there found that ination which has resulted in an over- no other of as the the same class charge judgment amount of ren- in the the Seaberg Hotel, the did find court that dered in his favor'. was under construction a on Jan. appellee argument With this we the of large completed hotel which was in June agree. cannot was year. that trustee corporate Never- owner. of the director con Discrimination as between theless, shown discrimination has been by the sumers will nоt be tolerated courts. to result from this. challenge that Appellant asserts consum largely a business case Appellee to show discrimination relies on the prove (1) that some allege must and er Bak Light Hilltop & Texas Power v.Co. similarly situated other consumer received Co., Tex.Civ.App., S.W.2d Jan. that, and preferential as between treatment 10, 1935. consumers, utility discriminat the two brought suit case, plaintiff In that (2) charges, other making in that the ed recovery of against for the preferential who received the consumer alleged that overcharges. Plaintiff alleged competitor plain of the was treatment sched- two maintained by reason discrim tiff, (3) that and rate, and the MR as ules, known one damaged. has been plaintiff ination the rate; and that the LP known other findings of fact made the trial cheaper two was the MR schedule entirely question silent оn the are court plaintiff’s setup, con- rates, under that Conclusion Law No. 3 discrimination. power con- amount of the sidering the however, does, contain statement that factors, plain- necessary sumed, other plain- in rates effective as to increase the MR benefit of tiff was entitled “was in discrim- tiff facts, rate;' notwithstanding those but that plaintiff,” and conclu- against ination pay required billed plaintiff was 4 states No. that the Law sion provid- it rate consumed at the current “arbitrarily overcharged dis- schedule, LP and as a con- ed for him.” crimination overcharged to the amount sequence case, however, But in appear in the that record that oth- sued for. not does alleged during further similarly also given situated a better ers opinion supplied current great defendant had written Mr. late Cardozo, similarly situated, sought other consumers denied the relief Justice schedule, provided (page rate MR and said 609) for in the : result, plaintiff and that as a had un- been “The find, Commission does not lawfully against. discriminated assert, complainant does the rate not was unreasonable in the sense that it would Here, however, us, case before subject to condemnation if rate a like the record shows that the himself similarly charged others situ been anything does not know about the rates What is unlawful in thе action ated. any- to others and doesn’t care discriminatory in its carriers inheres thing ques- about those does rates. He not anything quality, and When not in else. that, tion but if he had premises wired his gist alone discrimination and that is the segregate according the current so offense, one the difference between to the use he could various classes of measure of another light received current heat at the shippеr. by the damages suffered provided reduced rate the schedule. Coal R. v. International Pennsylvania Co. does The record not show that other L. Co., S.Ct. 230 U.S. Min. preferential user of received *7 Ann.Cas.1915A, 315; 1446, Mitchell Ed. treatment. Co., Pennsylvania R. & Coke Co. v. Coal There is discrimination therefore 916, L.Ed. 247, 258, 57 230 33 S.Ct. U.S. appellee, showing no dis- Pac. Co. v. Darnell- Southern [1476]; 1472 crimination he cannot recover. 534, 531, Co., 245 U.S. Lumber Taenzer theory clearly 451, [455, of the law is 186, Thе stated P.U.R. 62 L.Ed. 38 S.Ct. Chicago Com W. Keogh Commerce & N. 1918B, 598]; in case of Interstate v. Campbell, 156, 165, 47, 43 Co., United States ex rel. U.S. 67 mission v. 260 S.Ct. R. 607, 385, 1273. 53 77 L.Ed. Telegraph 289 U.S. S.Ct. Postal Cf. 183, [188]; L.Ed. Valley Company filed The Birch Lumber Press, 228 N.Y. v. Associated Cable Co. complaint 1920E, with the Interstate Commerce 380, 256 127 379, N.E. 370, [P.U.R. main ground that rates on evidentiary Commission to circumstance is It 1]. unduly carriers certain setting tained along with others be viewed unduly prejudicial is not the measure occasion. Pennsylvania In competitors. The com R. Co. v. preferential its more. damages Min. Co. U.S. fa Coal [230 to award in mission declined ternational whereupon L.Ed. Ann.Cas. plain 57 plaintiff, 33 S.Ct. vor Keogh supra; Chicago v. 315], & 1915A, this action a writ of tiff commenced 43 compel the commission to R. Co. U.S. S.Ct. [260 mandamus N.W. supra. Supreme Court, 183], in The L.Ed. make the award. cago Co., supra (260 & N. W.
‘'Overcharge and discrimination R. U.S. very different consequences, must be [156] S.Ct. 47 [67 L.Ed. 189]). question kept thought. is not hоw When the rate much distinct off better complainant shipper today would is or un be exacted of a excessive if it had paid a itself, irrespective question lower rate. reasonable in and is how may much off competitors, worse it is because the rate exacted of others have paid less.” recovery overcharge be without oth one is not to recover as of course a
nell-Taenzer
ment reasonable
given
be more
sylvania R. Co. v.
has
R.
damages
has
him is
Taenzer Lumber
recovery
with
and the
er evidence of loss.
[531]
1918B,598]).
be
a discrimination because some other
paid only
paid
sum.’
him,
534,
315]), but
whether more or
BICKLEY,
J.,C.
and SADLER and
something
proved
presumed.
to be
and not
*8
MABRY, JJ., concur.
U.S.,
Id.,
page