State ex rel. Weise v. Sedalia Gas Light Co.

1. Gas Light Company: reasonableness of rule fixing charge FOR “meter rent.” It is well understood that a corporation, so engaged as the appellant gas company, may, in its dealings with the people adopt and enforce such reasonable and just rules and regulations as may be necessary to protect its interests and further the designs of its incorporation. And where the return of an alternative writ of mandamus, commanding the gas company to furnish the relator with gas, set out his refusal to “ pay a monthly rental upon and for the use of the meter furnished by the company, of one dollar and twenty-five cents per month,” in accordance with a rule of the company imposing such a payment in all cases where the consumer consumes less than five hundred feet of gas, and which rental was to be taken in full for such gas, not exceeding five hundred feet in any one month, held, such rule is not unreasonable and that it is error to strike out, on motion, that part of the return setting up such rule. 2. - : MUNICIPAL ORDINANCE. An ordinance of the city of Sedalia, granting its franchise' to the appellant, contained a provision, that said company should furnish the city and its inhabitants “a good article of illuminating gas, at a price per cubic foot, not exceeding the rate charged in similarly situated places,” held, this ordinance did not deprive the company of the authority to prescribe the foregoing rule as to the “meter rent,” and it was error to strike it out as it was proper matter of defense.

Appeal from the Pettis Circuit Court. — Hon. Riciiaed Field, Judge. Statement of the case by the court. The petition avers, and the alternative writ recites, that the appellant was organized under the general laws of the state of Missouri for the purpose of supplying the city of Sedalia and its inhabitants with illuminating gas; that by section 14 of said article 7 (Wag.-Stat.) said company might lay its pipes, etc., through the streets of said city, by consent of the municipal authorities thereof, under such reasonable regulations as said authorities might prescribe ; that on the seventeenth day of June, 1868, an ordinance was passed by the municipal authorities of said city granting to said company the exclusive right to lay its pipes through said city, and to supply it and its inhabitants with gas, for a period of thirty years, upon the sole condition, however, that said company should furnish the city and its inhabitants “a good article of illuminating gas, at a price per cubic foot, not exceeding the rate charged in similarly situated places ; ” that said company accepted the terms of said ordinance; thát the relator complied with all the reasonable rules and regulations of said gas company, which are fully set forth in the petition and alternative writ; that notwithstanding all this, and relator’s offer and tender of full pay for all gas consumed, the gas company removed the meter from his place of business and refused to furnish him gas, etc. All this is admitted in respondent’s return to the alternative writ, and the sole justification pleaded, for its refusal to furnish gas to relator, is that, in addition to the rules and regulations set out in the petition and alternative writ, said gas company had adopted another to the effect that, ‘ ‘ all persons using or desiring to use gas manufactured by the defendant within said city, should pay a monthly rental upon, and. for the use o.f, the meter furnished by the defendant of the sum of one dollar and twenty-five cents per month, in all cases where such consumer consumes less than five hundred feet of gas, and wliicli rental was to be taken in full of suck gas, not exceeding the amount of five hundred feet in any one month.” Thereupon relator moved to strike out that part of the return for the following reasons: I. The rule, regulation or by-law, in said portion of said return set up and pleaded as a reason why a peremptory mandamus should not issue against defendant herein, is not a'fair, impartial nor reasonable rule or by-law; it is oppressive and discriminatory and contrary to public policy; it is beyond the power of the defendant to make and seeks to enlarge the powers of defendant, granted it by the laws of the state ; it is in conflict with the ordinance of the city of Sedalia, as set forth in the alternative writ, under which it supplies the city of Sedalia and its inhabitants with illuminating gas. II. [ Said portion of said return states no facts which in law constitute good cause why the defendant should not obey the mandate of the alternative writ issued herein. v This motion was sustained. The respondent refused to plead further, and the return, after this portion being stricken out, being in effect a concession of the recitations of the alternative writ, a peremptory writ was ordered. The sole ground of error is the action of the court in striking out said portion of respondent’s return. The rules and regulations pleaded by the defendant in its return to the alternative writ issued in this case, was not prohibited by its charter or by the ordinance. While not permitted in express terms, the power to adopt such rulés is incidental and implied and within the limits of the business for which it is organized. A corporation may adopt whatever rules and regulations are necessary and convenient to successfully carry out the purposes of its charter, and may deal precisely as an individual or a co-partnership. Barry x. Exchange Go., 1 Sand’f., ch. 289 ; Wood’s Field on Corp. [ 2 Ed.] p. 386 ; Wendall v. Slate, 62 Wis. 304 ; Morawitz on Corp., secs. 152, 189, 192. Such transactions, as are customary or usual in the prosecution of the kind of business in which the corporation is engaged, are impliedly authorized by its charter, and it may make such rules and regulations to co nduct its business within its general scope as are reasonable and convenient to it, and not oppressive orunjust or as are specially interdicted by statute. Hood x. Railroad, 22 Conn. 16 ; Morawitz on Corp., sec. 189 ; Ferguson x. Gas Go., 37 How. 193 ; Wood’s Field on Corp. [ 2 Ed.] sec. 222; Angel & Ames on Corp. [8 Ed.] sec. Ill ; Green’s Brice’s Ultra "Vires, p. 65 ; 1 Rorer on Ry., p. 227, and authorities cited ; Bank v. Billings, 4 Pet. 562; Downing x. M. & Wash. Go., 40 N. II. 230. The relator admits the right of the defendant to adopt rules and requirements in his pleadings, and alleges a compliance therewith. The defendant sets up another rule and avers the relator has not complied with such rule. The answer is stricken out. The defendant contends this was error. That the fairness and justness of the rule could not be ascertained or determined, except under the evidence, and the facts should have been heard under the answer. Corrigan v. Gage, 68 Mo. 541. Such rules are usual and reasonable. Shepherd x. Gas Go., 6 Wis. 584; 11 Wis. 236; 15 Wis. 318 ; State ex rel. x. Gas Go., 34 Ohio St. 579 ; Williams x. Gas Go., 52 Mich. 501. (1) The gas company has no authority, under its charter, nor the ordinance, of the city under which it laid its pipes, etc., to charge a consumer for the use of a. meter by which to measure the amount of gas consumed ; said ordinance requires it to furnish the inhabitants of the city with gas, at a price per cubic foot, etc. The gas consumed is all it has a right to charge for — it must measure it itself. The consumer is not required to furnish the means of measuring it, nor to pay for the use of such means. W. S. 1872, art. 1, sec. 14, p. 336. This requirement was contrary to, and in excess of, the powers conferred by its said charter, and the terms of said ordinance. Fields on Corps., sec. 295; Boone on Corps., sec. 57, and authorities cited. Respondent had no authority to charge so much per cubic foot, and in addition thereto, for the use of á meter to measure it, whether the amount used was large or small. Shepard v. Gas Oo., 6 Wis. 539 and comments on rule 17. The meter is for the benefit of the company — not the consumer. Ferguson v. Gas Oo., 37 How. Pr., p. 189, on 191, 2 par. (2) Said requirement is unreasonable and unjust and oppressive. State v. Overton, 24 N. J. L. 435 ; Railroad v. Williams, 55 111. 185.; Bass v. Railroad, 36 Wis. 450. (3) It is partial and discriminatory and contrary to public policy. It is a mere pretext by which to enable the gas company to charge this small consumer more per cubic foot than it does the larger consumer. Goddard v. Mer. Ex., 9 Mo. App. 290 on 295. Commonwealth v. Power, 41 Am. Dec. — note on pages 471 to 486 inclusive. Gas companies are not like trading companies, nor is gas an article of trade, because not bought, measured and delivered in given quanties, but is furnished, used and paid for after it is used, because it cannot be measured before. Hence, the ordinary disproportion in cost of measuring, handling and delivering large and small quantities does not apply, and the said requirement cannot be justified on this ground. Shepard v. Gas Oo., 6 Wis. 539 ; Williams v. Gas Oo., 52 Mich. 499. It was not necessary to hear any evidence, whatever, to enable the court to pass upon the validity of the rule plead in the return and stricken out. See State ex ret. v. Merchants' Exchange, 2 Mo. App. 96 — where a demurrer was sustained, instead of motion to strike out. Hoffbauer v. Railroad, 52 Iowa, 342; Tedder v. Fellows, 20 N. Y. 126 ; Railroad v. Whitlemore, 43 111. 420.