Opinion
No. 30863.
November 27, 1933. Suggestion of Error Overruled January 8, 1934.
1. TENDER.
Tender, to be effective, should be unconditional.
2. GAS. Customer's tender to power company at franchise rate of full amount due for gas consumed, but exclusive of amount due as state sales tax, with demand for receipt in full, held ineffective
Such tender was ineffective because coupled with a condition which would have precluded power company from thereafter asserting right to recover amount of sales tax on gas consumed by customer, and because by giving receipt in full power company would have precluded itself from thereafter charging or collecting sales tax claimed by it from other consumers, power company being a public corporation required to serve all consumers on same terms.
3. INJUNCTION.
Mandatory injunction should not be granted on ex parte application without notice except in cases of greatest emergency.
4. INJUNCTION.
Mandatory injunction should not be granted without notice unless there can be no reasonable doubt of its propriety.
5. GAS. Mandatory injunction requiring power company to resume serving gas to consumer who tendered franchise rate but refused to pay state sales tax and demanded receipt in full held improper, remedy at law being adequate.
The undisputed evidence showed that power company offered to accept amount of bill for gas at the franchise rate without prejudice to the rights of either party, and to continue the service on payment of such rate until the right to charge the two per cent. state sales tax was adjudicated, and that consumer tendered the franchise rate and refused to pay the sales tax and demanded receipt in full.
6. GAS.
Where facts developed at trial showed chancery court had no power to grant mandatory injunction requiring power company to restore gas service to consumer, chancery court was without power to determine company's right to charge state sales tax to consumers, jurisdiction of matter being in law court (Constitution 1890, sections 147, 156, 171).
APPEAL from Chancery Court of Hinds County.
Green, Green Jackson, and A.M. Nelson, all of Jackson, for appellant.
Appellee demanding receipt in full for not only amount due for gas but also for all sums claimed due appellant, as sales tax and others, was properly cut off.
Irwin v. Rushville Tel. Co., 161 Ind. 524; Central Louisiana Power Co. v. Thomas, 145 Miss. 352, 110 So. 674; Clayton v. Clark, 74 Miss. 499; Cooper v. Railroad Co., 82 Miss. 634.
Appellant as a public service corporation, must not discriminate in that exacted from its customers; for discrimination it is liable in damages.
Kolb Cleaning Co. v. Miss. Power Light Co., 145 So. 910; Knotts v. Nolan, 218 N.W. 564; Sullivan v. Minneapolis, etc., 142 N.W. 6; Watkins Shippers Carriers (4 Ed.), p. 128, sec. 61; State v. Public Service Commission, 34 S.W.2d 45; Southern, etc., Co. v. Beekman, 128 So. 71, 157 Miss. 646; Caston v. Hudson, 104 So. 698, 139 Miss. 890; Hinds County Water Co. v. Scanlan, 132 So. 567, 159 Miss. 757; Ladner v. Miss. Public Utilities Co., 158 Miss. 678; Griffin v. Goldsboro Water Co., 41 A. 240; Wieman Pub. Service Corporation, sec. 1396; Pond Public Utilities (3 Ed.), sec. 295; Cooper v. Railroad Co., 82 Miss. 644, 35 So. 162.
When Ross demanded a receipt in full, when he was paying only the franchise rate, without the sales tax, he would thereby have obtained on behalf of himself and all other customers similarly situated an absolute discharge upon the part of this utility to collect, if it so could, whereof later, this sales tax, approximately eighty thousand dollars a year, and would have compelled appellant to make refund of all amounts collected by it from cooperating customers (and by making appellant thus do would have made all utilities do the like), and thus without a judicial hearing as to this appellant subverted the sales tax by appellant agreeing to forego that by law to it given — to get what — about twenty dollars from Ross.
62 C.J. 677; Bacon v. Conn, Sm. Mar. Chan. 348.
A material fact misrepresented by appellee vitiated mandatory injunction granted without notice.
32 C.J. 403; Black v. Huggins, 2 Tenn. Ch. 780; Hilton v. Granville, 4 Beav. 130, 49 Reprint 283; Burbank v. Webb, 5 Man. 264; 14 R.C.L. 331; Mining Co. v. Union, 51 Fed. 264; Endicott v. Nathews, 9 N.J. Eq. 117; Board v. Authority, 32 Ch. Div. 421.
Mandatory injunction without notice is highly improper.
Pearman v. Wiggins, 103 Miss. 4, 60 So. 1; Parker v. Southern Ry. Co. (Miss.), 71 So. 913; Morris v. Tuessell, 109 So. 855; Miles v. Fink, 119 Miss. 147, 80 So. 533; Gulf Coast Co. v. Bowers, 80 Miss. 570, 32 So. 113; Montgomery v. Hollingsworth, 90 So. 80.
Court is without power to render a declaratory judgment.
Willing v. Auditorium Co., 277 U.S. 289, 72 L.Ed. 885; State Teachers' College v. Morris, 144 So. 374, 164 Miss. 158.
W.H. Cox, of Jackson, for appellee.
The appellee had vested right to gas from utility strictly at franchise rate.
A.L.I. Contracts, secs. 138, 139; Y. M.V.R.R. Co. v. Sideboard, 161 Miss. 4, 103 So. 669; 1 Pond on Public Utilities (1932 Ed.), secs. 251, 260.
By the acceptance of the franchise by the appellant, and its entering upon the performance thereof, the appellee acquired a vested right to natural gas service in accordance with the provisions of said franchise, and the right to be served at said rate was fixed by said franchise contract.
Griffith v. Vicksburg Water Works Co., 88 Miss. 371, 40 So. 1011; 1 Pond on Public Utilities (1932 Ed.), secs. 121 and 123; R.R. Comm v. Los Angeles R.R. Co., 74 L.Ed. 234; United Fuel Co. v. R.R. Comm., 73 L.Ed. 390; New Orleans Gas Co. v. La. Light Co., 29 L.Ed. 516; Durham Co. v. City, 67 L.Ed. 580; Columbus Railway Power Light Co. v. City of Columbus (Ohio), 63 L.Ed. 669.
The appellant was without authority to demand any charge or rate in excess of the maximum rate provided by the franchise.
Southern Ry. Co. v. Buckeye Cotton Oil Co., 126 Miss. 562, 89 So. 228; M. O.R.R. Co. v. Jensen, 162 Miss. 741, 139 So. 840; Southern Ry. Light Co. v. Beekman, 157 Miss. 346, 128 So. 71; Sec. 182, Mississippi Constitution of 1890.
The franchise must be enforced as written. The court will not make a different contract for appellant enabling it to pass the tax on to the consumer, and then enforce it.
Goff v. Jacobs, 164 Miss. 817, 145 So. 728.
Utility was properly enjoined to restore gas service wrongfully discontinued and properly assessed with damages therefor.
32 C.J., Injunctions, secs. 348, 349, 370, 372 and 373; Louisville Gas Co. v. Alexander (Ky.), 36 L.R.A. 125; L. N.R.R. Co. v. Pittsburgh (Ky.), 55 L.R.A. 601; O'Neill v. Citizens Pub. Service Co. (S.C.), 70 A.L.R. 887; Pitts v. Carothers, 152 Miss. 694, 120 So. 830; 32 C.J., pp. 53-54; Cumberland Telephone Company v. Hobart, 89 Miss. 255, 42 So. 349; Miss. Valley R.R. Co. v. Sanders, 87 Miss. 607, 40 So. 163; Godfrey v. Meridian Ry. Light Co., 101 Miss. 565, 58 So. 534; Ill. Central v. Ramsey, 157 Miss. 83, 127 So. 725; McDonald v. Moore, 159 Miss. 326, 131 So. 824.
Attorney's fees are recoverable, under the Mississippi rule, in cases in which exemplary damages are given.
Y. M.V. v. Consumers Ice Power Co., 109 Miss. 43, 67 So. 657; Town of Indianola v. Woods, 118 Miss. 738, 80 So. 7.
Argued orally by Garner Green, for appellant, and by Harold Cox, for appellee.
C.D. Ross was complainant in the court below and secured a mandatory injunction, without notice and hearing, against the Mississippi Power Light Company, prohibiting it from cutting off the gas service of said C.D. Ross, and to compel the acceptance of thirty cents per thousand cubic feet, without the addition of the two per cent. sales tax imposed by law.
The bill alleges that the Mississippi Power Light Company was under contract with the city of Jackson and the public to charge, not in excess of thirty cents per thousand cubic feet; that the complainant, between July, 1932, and February 15, 1933, had used, in his home in the city of Jackson, sixty-seven thousand six hundred cubic feet of natural gas, for domestic purposes, the amount for each month being set out, and, that he only owed the company twenty dollars plus accrued interest, exclusive of the controverted item of the two per cent. sales tax, which the complainant had tendered in cash, in full payment of said bill; but that the defendant wrongfully refused to accept said payment unless the complainant would pay, also, an additional two per cent. state sales tax. This the complainant refused to do, whereupon the defendant threatened to cut off the service of gas unless said additional amount of two per cent. state sales tax was paid in addition to the proper charge fixed by the franchise. The bill also alleges that the complainant tenders in his bill, and stands ready, willing, and able to pay the franchise rate, but refused to pay defendant the two per cent. sales tax.
It is further alleged in the bill that after said tender, the defendant wrongfully and unlawfully cut and discontinued its supply of natural gas to the complainant, and closed its gas service pipes to the home of the complainant because of his refusal to pay the two per cent. sales tax, and that the complainant was solely dependent on the continuance of said service for cooking, heating, and personal use, all of which is and was well known to the defendant, and by reason of which complainant was damaged in the amount of one hundred fifty dollars. The bill prayed for an injunction ordering the resumption of gas service to the complainant at the franchise rates, and that such injunction might be made permanent.
The mandatory injunction was issued on the execution of a bond in the sum of three hundred dollars, enjoining the Mississippi Power Light Company from collecting the two per cent. sales tax, and directing it to immediately resume and restore service of natural gas to the said C.D. Ross.
Service was thereupon restored and the defendant, Mississippi Power Light Company, filed an answer, setting up that it had not refused to accept the amount due from C.D. Ross for gas at the rate of thirty cents per thousand cubic feet; but, on the contrary, had offered to accept said money, reserving the right to both parties to contest the right of the company to charge the two per cent. sales tax to the consumer.
On the hearing, it appeared, without dispute, that the defendant company had offered and agreed to accept the amount of the bill at the rate of thirty cents per thousand cubic feet without prejudice to the rights of either party, and to continue the service on the payment of said franchise rate until the right to charge the two per cent. sales tax was adjudicated.
The complainant testified that he tendered the franchise rate without the tax, but that the defendant would not accept the amount as in full, and refused to give him a receipt in full as demanded by him.
The proof shows, without dispute, that had the complainant paid the thirty cents per thousand cubic feet and accepted the receipt for that sum without prejudice to the rights of either party to have the matter adjudicated, the gas service would have been continued; but had the power company given Ross a receipt in full, that would have precluded it from thereafter charging or collecting the sales tax claimed by it, and, being a public service corporation, it would have been compelled to serve all consumers on the same terms. The proof also shows that the aggregate of the sales tax on all consumers amounted to eighty thousand dollars which the power company would have been compelled to pay without charging it to the customers.
There was no relief, under the bill, which could have been rendered other than the injunction sought. We know of no right that a party has to make a tender of money to an opposite party coupled with a demand for a receipt in full. Under the law, when a party tenders an amount, such tender should be unconditional. In the case at bar, the tender was coupled with a condition which would have precluded the other party from thereafter asserting a right. Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189, 37 L.R.A. 771, 60 Am. St. Rep. 521; Cooper v. Yazoo M.V.R. Co., 82 Miss. 634, 35 So. 162.
The statement in the bill that the power company refused to continue the service of gas unless the two per cent. sales tax was paid, as shown by the complainant's own testimony, is not true. But for this allegation, we do not think the court would have granted the mandatory injunction without a hearing.
A mandatory injunction should not be granted upon an ex parte application without notice except in cases of the greatest emergency. Glover v. Falls, 120 Miss. 201, 82 So. 4. A mandatory injunction should not be granted without notice to the defendant unless there can be no reasonable doubt of its propriety. Montgomery v. Hollingsworth, 127 Miss. 346, 90 So. 79; Morris v. Tuessell, 144 Miss. 343, 109 So. 854.
On the hearing, the injunction was made perpetual by the chancellor, holding that the defendant was without power to charge the sales tax in addition to the thirty cents per thousand cubic feet fixed by the franchise.
On the facts which we have hereinabove set forth, the chancery court had no right to grant the mandatory injunction, nor to perpetuate it on the hearing. The complainant had an adequate remedy at law. The test of jurisdiction must be determined by the facts developed on the trial, and the chancery court having no power, on the facts of this case, to grant such an injunction, nor to make it perpetual, it was without power to pass upon the right of the defendant to charge consumers with the state sales tax imposed by law. The jurisdiction of this matter was in a court of law. Sections 156 and 171 of the Constitution. This is not a case under section 147 of the Constitution, because the chancery court, under the facts, had no right to grant an injunction, and there was no relief that could be granted under the bill, other than injunction. There had been no payment of the tax in dispute, and no coercion to force its payment. The company having offered to receive the amount of the franchise rate due without the tax, and the complainant having refused to pay that amount without a receipt in full, there was nothing else involved which the court could adjudicate except the writ of injunction.
There was no cross-bill filed by the defendant, and in no aspect of the case did the chancery court have jurisdiction of the controversy.
The judgment of the court will be reversed and the bill dismissed.
Reversed and dismissed.