105 Minn. 472 | Minn. | 1908
The relator, a resident of Duluth, was formerly a customer for lluminating gas of the respondents, the water and light department f the city of Duluth. Their net cash rate for gas was seventy-five ents per thousand feet. Their gross rate upon nonpayment on a ¡pedal date was ninety cents per thousand feet. The service was all etered. The relator, while a customer of the respondent in the utumn and winter of 1904-1905, neglected to pay his monthly gas ills by the time fixed, and when respondents then required him to pay
| It is elementary that a municipal light and water board must justly [exercise its conferred powers in the making and enforcing of regulations so as to promote the purpose of its creation' in the place at [which it is to transact business, and to render the public and its patrons [the contemplated service for compensatory, but not excessive, rates, [impartially determined, and so as not to improperly discriminate between different persons or property, or different classes of persons
This court has recently had occasion to hold void certain regulations because they failed to conform to this standard. Gordon & Ferguson v. Doran, 100 Minn. 343, 111 N. W. 272, 8 D. R. A. (N. S.) 1049. It does not at all follow that “the fundamental law of public service enterprises — the duty to serve all on tender of payment”-is universal in its application or persists despite certain express statutory provisions to the contrary. Indeed, the general principle is that the judiciary ought not to interfere with the means of- collection of rates established under legislative sanction, unless they are plainly and palpably in violation-of law. San Diego Land & Town Co. v. National City, 174 U. S. 739, 740, 19 Sup. Ct. 804, 43 L. Ed. 1154. Both on reason and authority the method of collection here in issue was reasonable and proper. With unusual unanimity, such regulations have been sustained alike where there is statutory authority and where there'is not. Our attention has not been called to any case in which a rule like the one at bar, authorized by statute, has been held void.
In a case involving an exactly similar state of facts (Jones v. Nashville, 109 Tenn. 550, 72 S. W. 985), Shields, J., in sustaining the regulation, said: “The ordinance contributes to the economical and prompt collection of the water assessments, and is almost necessary for that purpose, as, without it, not only would the city be delayed in the collection of the assessments, but would be put to the expense of a multitude of petty suits annoying to it and harassing to its inhabitants, and would suffer great loss on account of insolvencies. * * *1 We see nothing harsh and oppressive or discriminating in this ordinance, but we are of the opinion that it is reasonable and valid, an-that its enforcement against the plaintiff furnishes her no legal caus< of complaint against the defendant.” And see Mackin v. Portland. 38 Ore. 120, 61 Pac. 134, 62 Pac. 20, 49 L. R. A. 596; Tacoma v. Tacoma, 3 Wash. St. 316, 28 Pac. 516, 14 L. R. A. 669, 28 Am. St. 35; Montreal v. Cadieux [1899] App. Cas. 589; Com. v. Philadelphia, 132 Pa. St. 288, 19 Atl. 136; People v. Manhattan, 45 Barb. 136; City v. Burton, 90 Ga. 486, 16 S. E. 214; Detroit v. Moreton 111 Mich. 401, 69 N. W. 659; Brass v. Rathbone, 153 N. Y. 435
Many of the cases upon which defendant relies have been repeatedly distinguished. It was pointed out in Jones v. Nashville, supra, that in Crumley v. Watauga, 99 Tenn. 420, 41 S. W. 1058, the water company had accepted a duebill from a delinquent customer and after-wards allowed him to receive and pay for water. It was denied the right to subsequently coerce him by denying him a present legal right to buy water. The same distinction applies to Wood v. City, 87 Me. 287, 32 Atl. 906, 29 L. R. A. 376. See Mackin v. Portland, supra; Jones v. Nashville, supra. In Turner v. Revere, 171 Mass. 329, 50 N. E. 634, 40 L. R. A. 657, 68 Am. St. 432, it was essentially conceded that such power to shut off water might have been specifically conferred by statute upon the municipality. See City of East Grand Forks v. Luck, supra. Gaslight v. Colliday, 25 Md. 1, and Eloyd v. Washington, 1 Mackey (D. C.) 331, involved rules held improper because of the construction of the contract. See Mackin v. Portland, supra. In New Orleans v. Pardding, 12 Rob. (Ra.) 378, there was no ordinance or statute justifying the refusal to supply because of indebtedness of the former tenant.
.Nor is the view of the law here accepted inconsistent with cases involving service by telephone and telegraph companies and common carriers to which relator refers us. Thus it has been held that a telephone company operating a messenger service cannot forbid its subscribers from telephoning for messengers of a competing company. People v. Hudson, 19 Abb. N. C. (N. Y.) 466. Nor can such company refuse to put a telephone in an office because public toll booths were available. State v. Nebraska, 17 Neb. 126. So a common carrier cannot refuse to receive freight because of nonpayment of back charges for other shipments. Eastern v. Plolbrook, 4 Ky. Law 730; Hutchinson, Carriers (3d Ed.) § 865. It may also be conceded as a general principle — although it is not strictly here involved- — that a ;ity, in supplying its citizens with gas or water, acts not by virtue of ts sovereignty, but performs the function of a private corporation. Hone the less its situation, under present legislation, is not identical ith that of telephone companies or common carriers. The statute
4. The imposition of a fifteen-cent penalty or discount and of certaii costs and expenses of shutting off the gas and turning it on as part; of the arrearage charged relator does not entitle relator to the man damus he seeks. The trial court in effect found that the total charg of ninety cents per thousand feet was a reasonable price and rat for gas consumed by the relator. He was charged at that rate. 1 discount of ten or fifteen per cent, on the gross price was shown t be current. The legality of such a penalty or discount was sustains in Com. v. Philadelphia, supra. And see Girard v. City, 88 Pa. St. 393; Tacoma v. Tacoma, supra. The costs and expenses charge were found to have been reasonable in extent.
The requirement of such charges did not render the regulation voi because of want of uniformity in operation. They were reasonabl incident to the right to collect arrearages in rent. True, they wer not charged against persons who had paid their bills. Neither wer prior debts. The delinquent patron was reasonably required to bea the abnormal expense he had caused. The burden operated uniforml upon all delinquents, just as patrons who do not pay by a given tirr; are required to pay larger prices. All persons similarly situated wei similarly treated. The validity of the regulation is not successful® impeached by these considerations. State v. Sedalia, 34 Mo. App. 501; Powell v. City of Duluth, supra; San Diego Hand & Town Co. v. National City, supra. And see American v. State, 46 Neb. 194, 64 N. W. 711, 30 L. R. A. 447, 50 Am. St. 610. I
The conclusion follows that the relator is not entitled to mandamuH The question has been considered on its merits. It is therefore uiH
Affirmed.