275 Mo. 483 | Mo. | 1918
This is an appeal by the Public Service Commission and others from a judgment of the circuit court of Jackson County, annulling an order of the Public Service Commission (hereinafter called for brevity simply “Commission”) in a case wherein one W. H. Roach, was complainant. After the conventional motions, the Commission and the complainant appealed.
This case is one of three of similar character and bottomed upon identically similiar facts. The relief
It was shown by the testimony adduced upon the hearing before the Commission that the Royal Brewing Company, situate at Weston, Missouri, .is a corporation, the stock of which is largely, if not wholly, owned by respondent M. O. Danciger and his brothers. The Royal Brewing Company is engaged in the brewing of beer and in the manufacture of so-called soft drinks. The town of Weston contained, according to the last census, a population of 1019 persons, though the evidence adduced tends to show roughly that it now contains about 1500 population. Some six years before the hearing the Royal Brewing Company (hereinafter called for brevity the “Company”) installed in its brewing plant the necessary machinery for producing electric light solely for its own use in lighting its property. During the last three or four years preceding the hearing before the Commission, the Company has also been using the electric current so generated for the purpose of operating by electricity a large part of the machinery used in its brewing business. Shortly after the Company put in its private electric plant it discovered that it was able to produce more electricity than was necessary for its own use in lighting and running its plant. It thereupon began to make special private contracts to furnish, under the conditions and circumstances below named, electricity for lighting and power purposes to certain private citizens of the town of Weston, located within a radius of three blocks of the
The sale of the surplus current, although it is generated by the Company, and with the Company’s
The complainant, Roach, is the owner of a weekly newspaper published in Weston, called “The Weston Herald.” About a year, or 'a year and a half, before the matters here in controversy, arose, complainant bought this paper and printing plant from one Taylor. Power and lights were then being furnished by the Company through respondent upon the arrangement above set out to Taylor, and after complainant’s purchase of the newspaper the service was continued until June 7, 1916, 'when the wires were suddenly cut by Danciger, without prior- notice, and the service discontinued. Upon demand made for reinstatement of the service, and upon a refusal thereof, this proceeding was brought.
The printed form of receipt mentioned by respondent as having been given by him “a time or two as receipts” to his customers, contained on the reverse thereof a statement of the rates to be charged customers for current furnished for lights. No - reference was made in definite kilowatts to rates for motor service,
The area of three blocks from the Company’s plant is all of the town of Weston which was given any service, and not nearly all of the residences and businesses in this area have this service. The district within three blocks of the plant comprises only about one-fifth of the town of Weston since the Company’s plant is situate on the extreme edge of the town. The record discloses that a number of persons, both within the area of three blocks, and without the same, made requests for service, and were refused, because respondent was, he says, unable to furnish this service by reason of lack of surplus current.
There are no contracts in writing with any of the customers of respondent. The arrangement for furnishing the five or six lights to the city, for which the city pays, was made verbally, and is thus related by a witness who was a member of the Board of Aldermen when this arrangement was made: “I spoke to Mr. Danciger, about it, and he said he had no franchise or anything, and I asked him as a favor if he would not permit us to put a few lights down town. Our lights were bad. He said, well if you stretch your own wires and be responsible for the up-keep, that he was not to be responsible for any damage or anything, that he would furnish a few lights. . . . Said, of course sometimes they go out. So we put in at that time about three lights, and then after we got by the fire department, he put a light on the bridge. He wired the fire department gratis. . . . The final arrangement was just made between me and Mr. Danciger.
Upon the trial respondent, testifying for himself, was asked to state his reason for cutting off the service from the complainant. His answer was this: £ £ The first reason was, that I wasn’t holding myself out as a light company, that I was ruining my machinery, that I was running at a loss at the plant. I have electric-driven machinery that I wasn’t able to use, using steam machinery that cost twice or three times the amount of money to operate, and another reason was that these men who were using the current were the last men that got the service. That was another reason. The third reason was that I was furnishing these people current at a loss, doing it as a favor and they were abusing me personally, and trying to destroy the business I had, all I had in the world, and I didn’t feel any too friendly. Those are the different reasons for cutting off that current. ’ ’
The Commission after taking voluminous testimony in the case made a report in which it held that respondent was conducting a public utility; that he owed the duty of serving complainant, and that the discontinuance of the service was without reasonable excuse, and thereupon entered an order that the service be restored. From this order respondent herein took the case by the statutory writ of review, or certiorari, to the circuit court, of Jackson County, wherein upon a hearing de novo the order of the Commission was annulled. Thereupon the Commission and the complainant Roach. appealed.
There'is but one question in the case. That is a question of law, and is, to-wit: Is M. O. Danciger, Public ■ trading as M. O. Danciger & Company, entrtiiity. gaged in doing such business as by law permits the regulation thereof by the^Public Service Commission Act?
In this connection, we may mention in passing, respondent contends that M. O. Danciger & Company cannot be compelled to furnish the service in question, because, since the electric current used is .obtained from the brewery company, which is a corporation, the result of such an order would be tantamount to, and result in forcing the company to do, an ultra vires act. Upon
It is contended by appellants -that the whole question is settled by sub-divisions 12 and- 13 of Section 2 of the Public Service Commission Act, which define an “electric plant” and an “electric corporation,” over which plants and aggregations, as defined, other appropriate provisions of this act (Subdivision 25, Sec. 2, p. 560, Laws 1913)- confer plenary powers of regulation. The above clauses read thus:
“The term ‘electric plant,’ when used in this act, includes all real estate, fixtures and personal property operated, controlled, owned, used or to be used for or in connection with or to facilitate the generation, transmission, distribution, sale or furnishing of electricity for light, heat or power; and any conduits, ducts or other devices, materials, apparatus or property for containing, holding or carrying conductors used or to be used for the transmission of electricity for light, heat or power.
“The term ‘electrical corporation,’ when used in this act, includes every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever (other than a railroad or street railroad corporation generating electricity solely
While the definitions quoted, supra, express therein no word of public use, or necessity that the sale of the electricity be to the public, it is apparent that the words “for public use” are to be understood and to be read therein. [State ex rel. v. Spokane Co., 154 Pac. 1110.] Por the operation of the electric plant must of necessity be.for a public use, and therefore be coupled with a public interest; otherwise the Commission can have no authority whatever over it. The electric plant must, in short, be devoted to a public use before it is subject to public regulation. [Munn v. Illinois, 94 U. S. 113.] Since, the sole right of regulation depends upon the public interest, the subdivisions quoted above, and which define an electric plant and an electric corporation,, mean the same, whether the idea of a public use is expressly written therein or not; it is, nevertheless, of necessity connoted and to be understood therein. We are not to be understood as saying that an electric plant constructed solely for private use could not, by professing public service, become by such profession and by the furnishing of general public service, a public utility.
There is in this case no explicit professing of public service, or undertaking to furnish lights or power to the whole public, or even to all persons in that restricted portion thereof who reside within three, blocks of the Company’s plant. Por there is in the case neither existence nor assertion of the right of eminent domain. Nor does there exist any franchise or license, nor has there been obtained from the town of Weston any right or privilege to cross the streets, alleys, or other public places therein, nor are there any charter powers authorizing the company, or the respondent, to engage
It is certainly fundamental that the business done by respondent either constitutes him a “public utility,” or it does not. If he is a public utility, he is such within the whole purview and for all inquisitorial and regulatory purposes of the Public Service Commission Act. If, therefore, what respondent did constitutes him a public utility, other apposite sections of the law confer upon the Commission the power of compelling him to furnish and provide such “instrumentalities and facilities as shall be safe and adequate to furnish service.” [Sec. 68, p. 602, Laws 1913.] Still other provisions would seem to confer upon the Commission the power to compel service as to all residences, businesses and purposes, within a radius of three blocks from the Company’s plant. Certainly so much could be compelled by orders of the Commission. Absent the matter of franchise, it is possible, we suggest arguendo, that plenary authority exists, if respondent be a public utility, to compel the furnishing of the service to the entire town of Weston. The plant is now running at its full capacity, and if any considerable extension of the service thereof were ordered, extensive and expensive additions of machinery to the plan1 must likewise be ordered. In order to afford such service to the whole town, or even to all persons within the three-block area, the respondent would he compelled to obtain from the town of Weston a franchise permitting him to erect poles and wires along and across the public streets and alleys thereof. In an analogous case we have said that the Commission cannot compel a public utility to do a thing wherein the- obtaining of a: franchise is a condition precedent. [State ex rel. v. Public Service Com., 270 Mo. 1. c. 442.]
In the light of these-considerations does the business of respondent constitute him a public utility, within
The precise question before us is one of first impression in this jurisdiction. It has been up before the courts but few times in any jurisdiction. It has been up recently before the Public Service Commissions of the several States a number -of times. The holding of the courts thereon, while not absolutely unanimous, has been usually against the contentions of the appellants here (Cawker v. Meyer, 147 Wis. 320; Del Mar Light & Power Co. v. Eshleman, 167 Cal. 666; State ex rel. v. Spokane Railroad Co., 154 Pac. 1110; Brown v. Gerald, 100 Me. 351; Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429; Avery v. Vermont Electric Co., 75 Vt. 235; Fallsburg, Co. v. Alexander, 101 Va. 98; 1 Wyman on Public Service Corps, sec. 243), while a very few of the courts, and the public service commissions rather unanimously, have held to the contrary (Wingrove v. Public Service Commission, 74 W. Va. 190, and cases cited in 1918 A. L. R. A.). After a careful examination of the cases Mr. Wyman, in his excellent work on Public Service Corporations, at the section cited supra, says:
“That the business of supplying gas is public in character is now universally recognized, provided that the company supplying is committed to supplying g'as to the community in general. But the case can be imagined of an institution with a generating plant for its own supply, which might even supply one neighbor without being obliged to sell to all others. In the same way
In the late case of Cawker v. Meyer, supra, the Supreme Court of Wisconsin said:
“The State claims that by furnishing heat, light, and power to the tenants of their own building the plaintiffs became a public utility; that the furnishing of such commodities to any one else than to one’s self is furnishing it to the public within the meaning of the statute. It'is obvious that such a construction is too narrow, for it would constitute the owner of every building furnishing heat or light to tenants, as well as every householder who rents a heated or lighted room, a public utility. The Legislature never contemplated such a -construction to he given the words ‘public utility.’ They must receive a construction that will effectuate the evident intent of the Legislature and not one that will lead to a manifest absurdity. It was not the furnishing of heat, light or power to tenants or, incidentally, to a few neighbors that the Legislature sought to regulate, hut the furnishing of those commodities to the public, that is, to whoever might require the same. [Wis. River Imp. Co. v. Pier, 137 Wis. 325, 118 N. W. 857.]”
In the case of Del Mar Water Light & Power Co. v. Eshleman, supra, it was held that even a water company which was organized to furnish water to certain owners of town lots, which had been theretofore sold to such owners by a land company to which the Del Mar Company was an ancillary corporation, had the right to restrict its service to such lot owners, and to a few others of the public whose former water supply had been taken over by the Del Mar Company. Apposite to the facts and questions here it was said in the Del Mar case that:
The case of State ex rel. v. Spokane Railroad Co., supra, which was decided by the Supreme Court of Washington, is practically. on all-fours with the case at bar upon the ultimate facts. Not only is this true, but the definitions in our own Public Service Commission Act (and. largely the act itself) were obviously taken, with mere slight verbal changes, from the prior Washington enactment on the same subject. [Laws of Wash. 1911, pp. 538-612.] Construing this act in 1916, in a case in
“We understand the law in this State to be that companies furnishing electrical energy may or may not be public service corporations, depending upon the objects for which they were organized and the business in which they are engaged, the logic of the cases being that we will judicially inquire whether the sale of power is a selling to the public generally or is only an incident to the business in which the company is engaged . . . The character of such companies and their relation to the public has been frequently considered by this court. We find no departure from our first holding that a sale of electrical energy or power for private enterprises is not an engaging in a public business and gives such companies no right to assert the sovereignty of the State. [Citing authorities.] ...
“It is argued that the present act (1911) furnishes ample authority for holding that public necessity, as evidenced by the legislative declaration, now requires that such companies be held subject to regulation in their private affairs, and that the right of the public to the enjoyment and use of such property is regulated, guaranteed, and safeguarded by appropriate legislation. But we think the act does not go so far . . . Granting for the sake of argument the right of the Legislature to exercise the police power to the extent of regulating and controlling the price to be charged for power sold to private individuals or to others, such right should not be declared by the courts in the absence of express legislation. The regulation and control of business of a private nature is sustained by reference to the police power, and even then it is sustained only when courts have been able to say that a business is in character and extent of operation such that it touches the whole people and affects their general welfare. It is upon this principle
“Neither has the business of selling surplus power been so notoriously beset by abuses that we can judicially notice it as having an outlaw character. The right to regulate under the present law must be measured by the public interest. It will hardly be contended that appellant’s contracts with those to whom it sells its surplus are of any interest or concern to anyone other than the immediate parties. It is not alleged that it is neglecting its public duty because of them. No one has a right to compel appellant to sell its surplus. The act of sale is purely voluntary. Like the merchant it can sell at one price to one man and at another price to another. ... If either is not content with the offering of the other he does not have to contract. He can go his way. But it is not so with appellant, when exercising its public function, that is, furnishing something — a necessity — that all are entitled to receive upon equal terms, under equal' circumstances and without exclusive conditions. [Beale & Wyman, Rate Regulation, sec. 1.]”
The case of Van Dyke v. Geary, 244 U. S. 39, is strongly relied on by appellants as upholding their contentions. We do not regard it as doing so, and we have no quarrel with the law announced, upon the facts existing in that case. The facts, which in our view differentiate that case from this one, are at page 48 thus stated by the court in the opinion: “Counsel contend that the use is not public, because water is furnished only to particular individuals in fulfillment of private contracts made with the purchasers of town-site lots. But there is nothing in the record to indicate that such is the fact.” (Italics our).
The rule by which profession of public employment is to be tested, where, as here, such profession arises, if at all, implicitly, is thus laid down'by Mr. Wyman:
Testing the facts of the instant case by this rule, and by the rule announced by the majority of the courts,, as well as by the reason of the thing, and the far-reaching results of any other view, rather than by the view taken by a majority of the Public Service Commissions of the several states, we are constrained to hold that as to complainant, the respondent owed him ho continuing public duty of service, and that the view taken nisi is correct.
It follows that the case ought to be affirmed. Let this be done.