People's Gas Light & Coke Co. v. Hale

94 Ill. App. 406, 1900 Ill. App. LEXIS 673

• Court: Appellate Court of Illinois
• Decided: April 8, 1901
• Status: Published

Opinion

Mr. Justice Windes

delivered the opinion of the court.

For appellant it is claimed that the Mutual Fuel Gas Co. was under no legal obligation to furnish manufactured or illuminating gas for fuel purposes at seventy-two cents net per thousand cubic feet, but for appellees it is contended that, under the ordinance to Hank & McClarv, the material features of which have been set out in the statement preceding this opinion, to whose rights the appellant company succeeds, it is limited to a charge of seventy-two cents per thousand cubic feet for gas used for fuel purposes, irrespective of the grade or quality of the gas. They also contend that equity has the right to enjoin the charge of $1 per thousand cubic feet for gas for fuel purposes, which is proposed to be charged by the appellant company, for the reason that such' price is extortionate, excessive and unjust, and appellant, in its business of performing a public service for the citizens of Chicago, is bound to render such service at a reasonable price. We will consider these questions in the order noted.

Whether or not the appellant is under a legal obligation to furnish gas for fuel purposes at seventy-two cents per thousand cubic feet, independent of the second contention of appellees, must be determined from the construction of the ordinance to Hank & McClary, above referred to, and from the ordinance alone, if by its terms it is plain and unambiguous. It seems to be conceded by counsel on both sides, and it is the law, if it were not conceded, that said ordinance is a contract in the first instance between Hank & McClary and their assigns of the one part, and the board of trustees of the village of Hyde Park, acting in a representative capacity for the citizens thereof, including the appellees, of the other part. It determines their rights with regard to its subject-matter, until changed by the proper authority. Hank & McClary assigned all their rights and interests under the ordinance to the Mutual Fuel Gas Co., and that company, as we have seen from the statement, performed all its duties and obligations as the assign and successor of Hank & McClary incumbent upon it. It first furnished to the people of Hyde Park gas for heating and power purposes, but abandoned that business and thereafter engaged in the business of furnishing an illuminating gas up to the time of the consolidation of that company and its merger into the appellant company. By virtue of such consolidation, and by the statute under which it Was made, the appellant company became and is vested with all the rights, privileges and franchises of the Mutual Company under said ordinance, and is also bound by all the duties and obligations of the Mutual Company under the ordinance. This is conceded by counsel for appellant. .

Section 1 of the ordinance grants to Hank & McClary and their assigns, the right to construct, maintain and operate a system of works to enable them to receive, produce and furnish for sale natural and other gas and petroleum oil or either of them. By section 8 they are obligated to commence their works within six months from the date the ordinance was passed, and complete the same and furnish “gas for fuel, power, light or heat within eighteen months from said date,” and in case they should fail in either of those respects, or, having commenced to supply gas, they should “ cease to supply gas for fuel, power, light or heat for a period of more than thirty days,” then their rights and privileges granted should cease. Section 9 provides for the character of pipes to be laid for oil and for high pressure natural gas. ■

From these provisions it seems plain, beyond any controversy, that the Mutual Companjq as the assign of Hank & McClary, had the right to furnish any kind of manufactured gas or natural gas, either for fuel, power, light or heat, or either of said gases, for any, either or all of said purposes. The appellant company, as its successor, has the same rights, under the ordinance; that is, it may furnish and sell any kind of manufactured gas for light, heat or fuel, and may furnish and sell natural gas for the same purposes or for either or any number of such purposes.

Section 11 of the ordinance, which has been quoted in full in the statement, as we construe it, did not permit the Mutual Company to charge for its gas furnished for illuminating purposes more than $1 net per thousand feet, and if it furnished a gas for heating purposes (which we think includes fuel purposes), if inferior to the gas which it furnishes for illuminating purposes,it should notchargemore than seventy- two cents net per thousand cubic feet; but as the company did not furnish an inferior gas it was not obliged to furnish an illuminating gas that complied with the test of the ordinance for that kind of gas, to be used as a fuel or heating gas, at the net price of seventy-two cents per thousand cubic feet. We think this becomes apparent when the different sections of the ordinance are considered, viz., the closing part of the 11th section, which provides for the prices to be charged the village, one price “ for illuminating gas ” and another price “ for heating gas,” and the further provision of the same section which requires that -when “ illuminating gas ” should be furnished the supply should be of “gas-light under uniform and sufficient pressure between sunset and sunrise of each day, and the quality of the same shall be as nearly uniform as practicable; averaging for any one month not less than sixteen sperm candles, burning 120 grains per hour; to be determined by authorized photometrieal tests, a five-foot burner being used.” It is a significant fact that nowhere in the ordinance is a reference made to the kind or quality of the gas to be furnished, except when the gas is to be used for illuminating. This, we think, makes a clearly marked and defined distinction between gas which was required to be furnished under the ordinance for lighting and illuminating purposes, and any other gas contemplated to be furnished for any other purposes, whether for heat, fuel or power; and furthermore makes it clear that the appellant, for a gas which would stand the test provided by the ordinance for an illuminating gas, was entitled to charge therefor a net price of 31, per thousand cubic feet, and for any other gas of an inferior quality, not coming up to the test required by the ordinance, appellant could charge not to exceed seventy-two cents per thousand cubic feet. It seems clear and beyond question, that it could never have been contemplated by this ordinance that the appellant should be required to furnish a high grade or quality of gas, such as would stand the test for illuminating gas, and when the same was used for fuel or heating purposes it could not charge therefor to exceed seventy-two cents net per thousand cubic feet.

Great stress is laid by counsel for appellees upon the fact that the Mutual Company during all .the time it supplied gas up to its consolidation with appellant, and the appellant thereafter up to the time of the commencement of the Allen suit, only charged seventy-two cents for the same gas when used for fuel or heating purposes, for which was charged when used for lighting or illuminating purposes $1; also upon the further fact that when the Allen suit was commenced and appellant sent out the circular with regard to gas and prices to its patrons, it did not therein make a distinction as to the price it proposed to charge, because of the quality of the gas furnished. These facts might bo of controlling importance in construing the ordinance, if there was any uncertainty or ambiguity about its terms, but as we have seen, there is none. We are not at liberty to go beyond this ordinance itself in construing it, and consider the acts of the parties thereunder as throwing light upon its construction. When the words of an ordinance or a contract— and this ordinance is a contract—are plain and explicit, there is no need to, and a court will not, go beyond its wording in construing it. Ballance v. City of Peoria, 180 Ill. 29-38; Butterfield v. Sawyer, 187 Ill. 598, 602; Ottawa, etc., Co. v. Downey, 127 Ill. 201-4; R. R. Co. v. Dumser, 109 Ill. 402-10; People v. Rose, 174 Ill. 310-16; R. R. Co. v. City of Chicago, 173 Ill. 471-82; State Board, etc., v. Ross, 91 Ill. App. 281-6; Sutherland on Stat. Construction, Secs. 235, 237-8.

The fact that the Mutual Company, and after it the appellant, furnished a high grade gas and permitted consumers to use it for fuel purposes, and charged only seventy-two cents for it when so used, did not bind appellant to continue such permission at that price.. Had the permission been to use the gas free of charge, it would not be contended that this gave the consumer the right to have free gas longer than appellant was willing to extend such a gratuity. The principle is, however, the same, as we construe this ordinance.

It is argued by appellees that under the statute authorizing the consolidation, appellant could not increase the price of gas that was furnished by the Mutual Company to its consumers above what it was during any part of the year immediately preceding such consolidation, but we think the contention is not sound. The section referred to is as follows : ,

“Sec. 11. Any corporation purchasing, etc., or into which any company or companies are consolidated and merged under this act, shall be at the time of availing itself of or accepting the benefits of this act in the actual business of furnishing gas to consumers, and shall be subject to the following provisions: Such corporation shall not increase the price charged by it for gas of the quality furnished to consumers during any part of the year immediately preceding such purchase or lease or such consolidation and merger. Such corporation shall furnish gas to consumers as good in quality as it furnished previous to such purchase or lease, or such consolidation and merger.”

A reference to this section and the first section of the act makes it plain that the price which should not be increased after the consolidation, is the price which was charged by the company into which other companies are consolidated and merged under the act. The company to which other companies may sell or transfer their rights, franchises and privileges must, under the first section of the act, be a “ gas company doing business in the same city, town or village,” and that company, under the section quoted, must have been, at the time of the sale or consolidation, “ in the actual business of furnishing gas to consumers.” From this it is evident that the language in section 11, viz., “ Such corporation shall not increase the price charged by it for gas,” etc., refers to the company in which the other companies were consolidated, or to the purchasing corporation, and to the price charged by it for gas in the same city for any part of the year immediately preceding the consolidation.

Much argument has been indulged in by counsel on both sides as to a distinction which, it is claimed, should be made between “ manufactured ” gas and “ illuminating ” gas, and as to the power of the court after the appeal was perfected to change the injunction order by striking out the “ illuminating ” in the order as originally entered, and inserting in lieu thereof the word “ manufactured.” Under our construction of the ordinance, we regard the distinction between these words as of no importance in this case, but if it were important, under the previous decisions of this court, we could only consider the order of injunction as it was when the appeal was perfected. Cook Co. Brick Co. v. Bach, 93 Ill. App. 88; Blackall v. Sexton, 72 Ill. App. 395.

The second claim of appellees, that equity has the right to enjoin the appellant from charging $1 per thousand cubic feet because it is excessive and unjust, is not, in our opinion, tenable. The cases cited by appellees’ counsel do not sustain their claim. They concede practically that it is the province of the legislative body to fix the rate which shall be charged for services rendered by a #-w<m-public corporation such as appellant, when its business is impressed with a public interest, but they say that because it has been held by the courts that they have the right to determine, after a rate has been fixed, whether it is reasonable or unreasonable, it follows that the courts have the right to say that a proposed rate is unreasonably high and that another and lower rate is sufficiently high. The adjudicated cases do not sustain the contention, and we do not feel justified, under any general principle of the law to which our attention has been directed, in going beyond the line fixed by the decided cases.

It has been held by a number of the cases cited by appellees, that where persons or corporations carry on a business which is public in its nature, and upon which is impressed a public interest, they must serve all who apply on the same terms and at reasonable rates. City of Danville v. Danville Water Co., 178 Ill. 299, 309; same case, 180 Ill. 235-41.

The courts have also held that, in the absence of statutory regulations upon such matters, they must decide what is reasonable. Eegulations by ordinance are the same as statutory regulations. Munn v. Illinois, 94 U. S. 113-34; Rogers Park Water Co. v. Fergus, 178 Ill. 571; Dow v. Biedelman, 125 U. S. 680; Interstate Com. Com’n v. Ry. Co., 167 U. S. 479-99, and cases cited; Capital, etc., Co. v. City of Des Moines, 72 Fed. Rep. 818.

But it has been further held that “ the power to regulate and control the charges of railroad companies or other agencies engaged in public employments is legislative and not judicial,” and that the charges for services of employments which are public in their character, must be regulated by the legislative bodies, subject only to such restraints as are imposed by charter contracts and by the authority of Congress to regulate foreign and interstate commerce. R. R. Co. v. Jones, 149 Ill. 361-7; see also, the Danville Water Co. case, supra; Interstate Com. Com’n case, supra, pp. 499 and 505; Express cases, 117 U. S. 1-29; Capital, etc., Cas Co. v. City of Des Moines, 72 Fed. R. 818, and cases therein cited; Nebraska Tel. Co. v. State, 55 Neb. 627.

In the Interstate Commerce case the court say;

“ It is one thing to inquire whether the rates which have been charged and collected are reasonable—that is a judicial act—but an entirely different thing to prescribe rates which shall be charged in the future—that is a legislative act.”

In the Gas Co. case, 72 Fed. Rep., it was held that it is the province of the court, when the question is properly presented, to determine whether or not rates which have been established by statute or municipal ordinance are reasonable, but that the court has no power to fix rates; that “ it may not declare what rates would be reasonable and by its decree establish those rates as the rates to be charged. Its power is exhausted on this point when it has duly passed on the reasonableness of the rates as fixed in the ordinance.”

In Nebraska Tel. Co. case, supra, the court say, “ The power—the jurisdiction—to determine what compensation a public service corporation may exact for services to l e rendered by it, we understand to be a legislative, and not a judicial, function. * * * Fixing a compensation which public service corporations may charge for services to be rendered by them is legislating; it is law making. The power of the courts is limited to declaring what the law is, and they are precluded by the constitution from performing legislative functions;” and held that though it was within the power of the courts to declare laws fixing the compensation to public service corporations void because the compensation fixed • was unreasonable, they did not have authority to determine what compensation would be reasonable for service to be rendered in the future.

While the Circuit Court might, in a proper case and under proper pleadings, have determined whether or not the charge of $1 under this ordinance for illuminating gas when used, for fuel or heating purposes is excessive and unjust, there is no allegation in this bill that such a charge is excessive or unjust, but the whole theory of the bill and its allegations is to the effect that such charge is in violation of the ordinance and the consolidation statute.

We therefore hold in this case that the board of trustees of Hyde Park, a legislative body, having fixed the rate which appellant is entitled to charge for gas which it has supplied or may supply to its customers, and there being no allegations justifying it and no evidence in the record from which it could be said that the rate is unreasonable, unjust or excessive, the Circuit Court had no right to determine that question against appellant. Especially was it without power or jurisdiction to determine the rate at which the appellant should charge its customers for gas in the future, as is done by this injunction order.

The fact that the Mutual Company and appellant furnished to consumers the high grade gas at seventy-two cents for fuel purposes, does not establish that $1 for that gas is excessive or unjust, it appearing at the same time that they also received $1 for the same gas when used for illuminating and that the prevailing price in Chicago charged for illuminating gas when used for fuel is $1.

In the view we take of the case it seems unnecessary to consider appellant’s tender to appellees of natural gas for heating and fuel purposes, and whether or not appellees have shown that they will suffer irreparable injury if appellant is not restrained from charging them $1 per thousand feet for high grade illuminating gas.

The order of injunction of the Circuit Court is reversed.