152 So. 269 | Miss. | 1934
Appellants operate a restaurant in McComb, in Pike county, and appellee is a public service corporation furnishing electric current to the inhabitants of said city. *819 At the time the bill of complaint was filed herein by appellants, they had become in arrears in the payment of their monthly bills for electric current, and, such default having continued, the public service corporation had threatened to discontinue service unless said arrears were paid. Appellants thereupon exhibited their bill of complaint against appellee, and alleged therein "that they jointly become the owner of stock in the defendant company, being certificate No. TJO857 five shares preferred stock, and certificate No. JO7728 one share of preferred stock, amounting in the aggregate to six hundred dollars; that at the time of the acquisition of said stock it was sold to them with the distinct understanding that at any time they so desired they might turn said stock back to the company and that the company would pay them the cash thereon at its par value within ten days from date, as they maintained a regular sales department for that purpose; that they have repeatedly offered said stock back to defendant company and asked that they comply with their contract and pay them as they represented and guaranteed to do at the time of the purchase of same." And the bill further alleged that after their monthly bills had become in arrears they had called on the local manager of the service corporation and had tendered him the stock and asked that the stock be charged with the light bills in arrears, and that the electric light service be continued on the indebtedness claimed to be due appellants on account of the said stock so tendered to the company, and that the said local manager refused to recognize the stock as a payment or basis of credit for electric current, and the bill prayed for a mandatory injunction to compel the company to accept said stock in payment of the monthly bills for electric current already furnished, and that the company be ordered to continue to furnish electric current in part payment for the aggregate sum claimed to be due appellants on said stock. Upon presentation of the bill to the chancellor he ordered the injunction to issue, and this *820 without any notice to the company, and the company has continued to furnish electric current to appellants without payment therefor, as required by said writ of injunction. The service corporation demurred to the bill, moved to dissolve the injunction, and gave notice therewith of its claim for damages on account of the wrongful issuance of the injunction. The demurrer was sustained, damages for attorney's fees and other such incidents were allowed on the bond, but the court refused to allow any recovery on the injunction bond for the electric current furnished after the issuance of the injunction and in obedience thereto. The complainants have appealed from the decree dissolving the injunction and dismissing the bill, and the company has taken a cross-appeal as to the action of the court in disallowing recovery for the current furnished while the injunction remained in force.
The bill is without merit, and the demurrer was properly sustained for more than one reason; but, since one is enough, we will state that which, so far as this case is concerned, may be regarded as a principal reason. A public utility is obliged by law to furnish its service to the general public without discrimination, to all alike so far as within the same class with respect to that service, and no devices are permitted, whether by contract or otherwise, whereby any so served shall receive any special privileges. And a public utility must so conduct its internal business that its ability to perform its public functions and furnish its public service shall not be impaired; it shall not be allowed to so contract in respect to its internal affairs as to distinctly cripple or destroy its power or ability to perform its public duties. And since the continuance, unimpaired, of its ability or power to furnish electric current, or other like physical service, requires necessarily the receipt therefor by the utility company at frequent intervals of the cash or its immediately available equivalent, it follows that, unless the law recognize and enforce the right of the utility to have and receive for its service at such frequent intervals the *821 cash therefor, or its immediately available equivalent, the law would fail on the one hand to so support it that it may certainly be enabled to do what the law on the other hand requires it to do.
It was in full recognition of the foregoing principles and in affirmance thereof that this court wrote its opinion in Central Power Co. v. Thomas,
The authorities are uniform to the effect that a public service corporation cannot refuse to furnish its public service because the patron is in arrears with it on account of some collateral or independent transaction, not strictly connected with the particular physical service. For instance, electric companies frequently sell electric stoves, refrigerators, and the like. Such a company cannot cut off electric service because the patron is in default in the payment of a bill of that description. State v. Butte E. P. Co.,
Appellants complain that the court allowed attorney's fees on the dissolution of the injunction. When a bill states a good cause of action, wherein the injunction is only an incident to complete relief, and it is necessary to answer and take full proof on the merits of the principal cause of action asserted, then for the defense of the suit the fee of the solicitor is referred to the merits and not to the dissolution of the injunction, as, for instance, in Mims v. Swindle,
The issuance of the preliminary injunction in this cause was grossly improper, for two reasons: First, it was without notice, contrary to the established rule as stated in Pitts v. Carothers,
Since it was by force of the wrongful and unlawful injunction *824 that the service company was compelled to continue to furnish electricity without pay, the company is as clearly entitled to recover therefor on the injunction bond, up to the time of the final dissolution of the injunction, as a defendant would be entitled, where, under an injunction of this kind, he had been compelled to deliver specific chattels to the complainant, which chattels the complainant had removed or destroyed or consumed in the use thereof. Moreover, when a complainant, contrary to the plain rules of law, established in the interest of good government and with the object to prevent arbitrary and oppressive abuse of preliminary legal process, persists in instigating such an abuse and in taking the temporary benefits thereof, we must and will allow damages on the bond in the fullest amount and over the entire field that such damages can upon any reasonable basis be sustained. In so far as it refused to allow against the injunction bond the amount due to be paid to the service company for current furnished while the injunction was in force, the decree is reversed, and the cause is remanded, with directions to proceed in accordance with this opinion.
Affirmed on direct appeal; reversed and remanded on cross-appeal.