119 Minn. 225 | Minn. | 1912
Mandamus to compel the respondent to furnish electric service to the relator’s residence in the city of St. Paul. An alternative writ was issued but, after hearing had and upon findings made, such writ was quashed; whereupon from an order denying the relator’s motion for a new trial, prayed for on the grounds that the court erred in overruling the relator’s motion for judgment upon the findings or for amended findings and judgment thereon, the relator appealed.
1. The respondent is, and during all the times hereinafter mentioned has been, a corporation duly organized and existing under the laws of this state, with power to generate, distribute, and supply electric current for light, heat and power, and other purposes, to the cities of the state and the inhabitants of such cities, and by virtue of certain ordinances is and, at all times material to the issues involved in this case, has been authorized to carry on its said business in the city of St. Paul. Being a corporation organized and empowered to perform a public service, and having accepted a franchise from the city authorizing it to operate therein, it is bound by the implication of the law to make no unreasonable discrimination between those to whom the said service is to be furnished; that is, it must not be partial and must serve alike all who are similarly circumstanced with reference to its system or who are members of any class to which it has undertaken or is otherwise bound to furnish service. State v. Board of Water & Light Commrs. of Duluth, 105 Minn. 472, 117 N. W. 827; Minnesota Canal & Power Co. v. Koochiching Co. 97 Minn. 429, 450, 107 N. W. 405.
This is the rule almost universally applied to telephone companies (State v. Board of Water & Light Commrs. of Duluth, supra; State
Unquestionably, then, it was, and is, the respondent’s duty to supply, without discrimination, electric service to all citizens of St. Paul whose property is so situated as reasonably to entitle them thereto under the ordinance, and under the' general law applicable to public service corporations, and to refrain from unjust discrimination between such citizens. So the next question is: Does the relator come within this class ? He claims that he does, on the ground that he is a member of a class rendered determinate by the respondent’s own acts, that is, that his residence is within a service zone already established by the respondent; his ultimate claim of a violation of a legal duty due him from the respondent being that it is
2. The next question then is: Has the relator done all that he is called upon to do in order to invoke his right to equal service from the respondent?
“The law requires them,” said the court in Chesapeake v. Baltimore, 66 Md. 399, speaking of telephone companies, “to be impartial and to serve all alike, upon compliance with their reasonable rules and regulations.” It appears that the .relator has had his house wired and equipped for the use of electricity, that he has made due appli
It is a matter of common knowledge that when an application is made by an individual for service from such a company, such as for water, gas, electric light or power, or telephone service, certain things have to be done in order to connect the applicant’s premises with the company’s system, and we think that it is equally well knovm that the company, and not the applicant, usually attends to such matters, except in so far as they may be controlled by special rules and regulations applicable to the particular service. Now the respondent makes no claim that the relator has fathed to comply with any of its special rules or regulations. It does not even appear that the respondent has any such. It admits the relator’s application and demand, and that his house is equipped to receive the service, and yet refuses to furnish it, basing such refusal flatly and, aside from the question as to the effect of a provision of the franchise ordinance as to extensions, hereinafter considered, solely upon the ground that the relator has not procured for it a right of way to his premises.
More specifically stated, the claim is that, in order to reach the relator’s premises without crossing private property belonging to others, a line must be strung across Amherst street and possibly Geneva street, and that probably a pole will have to be set in one of these streets; that the franchise ordinance makes the city’s consent a condition precedent to the right to do these things or either of them; that no such consent has been obtained; and hence that the respondent cannot be compelled to furnish the service to the relator. The respondent’s contention is that this consent must be obtained by the relator before he can insist upon being seiwed by the respondent, or at least it must appear that the respondent has the right to string a wire over these streets and, if necessary, to set poles therein. In our vieAv of the case, however, the obtaining of Avhatever consent that may be necessary in order to authorize the respondent to string
More specifically it is a matter of common knowledge, and hence propér to be judicially noticed, that cities are divided by streets and alleys into blocks and subdivisions of blocks, the blocks and subdivisions thereof being very generally owned by private individuals and the streets and alleys being subject to a public use and under the police control of the municipality; that public service companies using wires for the distribution of the service supplied by them, such as telephone and electric-light companies, customarily set poles in the streets and alleys and string wires along and over and across the same; that such wires can be strung only a few hundred feet in any direction without crossing a street or an alley, even where the line is strung upon poles set upon a private right of way; that many persons are served by these wires or lines that are thus strung along and across the streets and alleys as above stated; and that when the consent of the city is necessary, in order that the company may lawfully set such poles and string such wires as may be necessary to carry the service to the persons so served or to be served, the company, and not its patrons or applicants for service, attends to the obtaining of such necessary consent by application to the council or otherwise, and it is to the company, and not to its numerous patrons, that the permission is granted and the permits issued.
Such, then, being the general custom, the question is at once suggested as to whether this custom was followed by the respondent in its dealings with its patrons generally throughout the city and particularly in the service zone involved in this case, or rather the question is whether there is any evidence in the case of a different custom; for in the absence of such evidence the general custom would be presumed to obtain, and the relator’s prima facie case would, thus
In addition to this, it appears that the respondent’s lines cross Amherst street, in this same service zone, twice, and it does not appear that any patron now being served was required to obtain the city’s permission for such crossings. There was evidence that no permission was obtained specifically with regard to these crossings, and the relator attempted to introduce other evidence to the same effect. Such evidence was offered, however, solely for the purpose of showing that the city’s consent was not necessary in order to legalize the stringing of wires across these streets—a question not material in our view of the case—and hence the propriety of the court’s rejection of this evidence need not now be considered.
In the absence, then, of evidence of a contrary custom, it must be held, upon this record at least, that the respondent has not required other patrons and applicants to procure for it a right of way upon and across the streets necessarily used or crossed in carrying the service to them, and that such is not the respondent’s usual custom.
We have not adverted to the feasibility of reaching the relator’s premises by way of an underground conduit, although it appears that the consent of the city to this method of construction is not necessary under the terms of the franchise ordinance. Nor have we discussed the question of the respondent’s right to employ its power of eminent domain in order to obtain a right of way over any private property that it may be necessary to cross in order to give the relator the service applied for by him, though it appears that by such a right of way the relator’s premises could be reached from the respondent’s nearest pole to the east thereof and less than two hundred fifty feet distant therefrom, without crossing any street or alley. With regard to these matters, it is sufficient to say that they are in the same category with the matter of right of way upon or across the streets with overhead wires. With the possibility or feasibility of any one or more of these methods of bringing the service to him, the relator has nothing to do; nor can he dictate the manner in which his premises are reached. These are matters which the respondent has the right to determine for itself, and must determine; and if each of these ways of carrying the service to the relator was barred by insurmountable difficulties, whether legal or physical or financial, the burden was upon the respondent to show such fact, and to sustain this burden there must, of course, be some showing of a bona fide attempt to reach the relator with the service and a failure thereof, or •else proof of the futility of such an attempt. It affirmatively appears that the respondent has made no attempt to get permission to cross the street with its overhead wires, and there is no evidence of the nonfeasibility of an underground crossing. There is some evidence of an attempt to secure a right of way over private property, but it is wholly insufficient. Certainly the respondent cannot be allowed
3. The respondent’s only other contention is that the relator has mistaken his remedy, in that his petition should have been addressed to the city council and not the court. Section 8 of the franchise ordinance, says the respondent, required the relator to make application to the city council to compel an “extension” of the respondent’s lines; but we do not think that this section stands in the way of a writ to compel the respondent to do its duty, and this aside from any question as to whether such section conflicts with the respondent’s statutory obligations. This section, after providing that “the grantee shall from time to time extend any of the electric lines which are now or may be hereafter maintained or operated under this franchise, for the conduct of electricity upon any street or portion of street in said city, within six months after being ordered so to do by the common council,” provides further that the common council shall have no power to require such extension to be made unless there shall first be presented to it a petition signed by residents upon the street upon which the extension is to be made, and “provided further that there shall be an average of one of such houses or buildings for every one hundred feet of underground extensions ■so required to be made, exclusive of street crossings, and an average of one of such houses or buildings for every three hundred feet of overhead extensions, exclusive of street crossings,” the months of December, January, February, March and April to be excluded “in computing the time within which such extensions must be made.”
Assuming for the moment that this provision of the franchise ordinance affects the relations and the mutual rights and obligation of the company and its individual patrons, its effect upon the case before us would depend upon the meaning of the word “extension” as used therein. Counsel for the respondent assumes that the line necessary to reach the relator’s premises would be an “extension;” but to this we cannot agree. We think it apparent that the relator’s premises may be reached with a mere subsidiary line, and we are satisfied that such lines are not “extensions” within the purview of
Furthermore, we think it ajiparent from the ordinance itself that section 8 has no application to the present case. Section 2 provides that the grantee shall within eighteen months from the date of its acceptance of the ordinance “construct and install the necessary poles, wires, conduits, conductors and other appurtenances so as to supply customers with electricity for use in all property and buildings that may desire the use thereof, along the streets of said city for a distance of at least five mthes, and in addition to the requirements for extensions hereinafter contained, said grantee shall so construct and install at least an additional three mthes each year for a period of two years,” etc. Is it not manifest that the word “extension” as here used means extension of the system? So, also, section 4 provides that proper service shall be given “to all of its patrons along its entire system and all enlargements and extensions thereof.” Besides section 8, these are the only other places in which the word “extension” occurs; and we think that, taking the three sections together, it is clear that section 8 contemplates extensions of the system or service zones, and does not purport to affect the sufficiency of the service within an established service zone.
But we do not think that section 8 of the ordinance was intended to affect the mutual rights and relations of the company and the individual consumers. Before this franchise ordinance was enacted the respondent’s predecessor, and so the respondent, had no right whatever to maintain its system in the city of St. Paul. R. L. 1905, § 2927. Its right, therefore, to operate in the city is derived from the franchise ordinance, and by such ordinance such right is sub
Aside from the effect of section 8 of the ordinance, mandamus is unquestionably the proper remedy; and since, as we have held above, this section is not applicable in the instant case, the respondent’s contention that the relator has mistaken his remedy cannot be sustained.
It is but fair to the respondent to state that in the court below and also in this court, the respondent’s position, as, in part, stated by it, is that, “if there is any possible way by which this court can issue this mandamus order and we can serve the plaintiff in this case, we are willing to comply with that order. We have no desire to deprive plaintiff of electric service which he requires.” But such willingness, however much to be commended, is no defense, and was not, indeed, asserted as such. And the respondent having fathed to meet the prima facie case made out by the relator, it follows that the relator is entitled to relief. Where the respondent in mandamus to compel the furnishing of a public service fails to establish its affirma
The relator is entitled merely to a writ—based upon amended findings as above stated—ordering the respondent to furnish him with electric service, within such reasonable time at the court below may fix, after hearing had for the determination of that question only, without direction as to manner in which the respondent shall perform its duty in such regard. State v. Board of Commrs. of Renville County, 83 Minn. 65, 69, 85 N. W. 830.
Order reversed with direction to proceed in accordance with this opinion.