Bell v. Kaye , 127 Miss. 165 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

The appellants filed a bill in the chancery court to enjoin the appellee from collecting rates for water and light services, the appellee being the owner of the water and light plant at Booneville, said rates being fixed by the mayor and board of aldermen after a suit between the ap-pellee and the city adjudging former rates insufficient compensation. The bill alleges that the appellants are each patrons of the appellee and are users either of the electric current or water or both furnished by Kaye. It is further alleged that a suit was instituted by Kaye in 1920 asking the cancellation of an order passed by the board of mayor and aldermen in 1919 fixing the rates to be charged, and that on hearing of said suit the ordinance was declared void, but the court declined to fix rates, holding it had no such power. Prom said order an appeal was taken by the town of Booneville with supersedeas, but in March, 1921, the said appeal was dismissed by the supreme court. On the 5th of April, 1921, the mayor and board of aldermen met in regular session, and upon petition of the attorneys of Kaye attempted to pass an ordinance increasing the rates to be charged and fixing an increased rate dating from the 10th day of August, 1920, to the 10th day of August, 1921. It is further alleged that the petition on which the pretended ordinance was passed was incorrect and misleading, and stated things to be facts which did not exist, and that the mayor and board of aldennen relied upon said statements and were therefore misled and induced to pass the said ordinance. It is further alleged that this ordinance is null and void, and that the same was not passed in the manner and form required by larv, and that the said ordinance is retroactive, vague, and indefinite, and that Kaye is attempting to collect the charges for services as set forth in the said ordinance and is endeavoring to collect from the petitioners amounts named in the bill.

It is then alleged that it is the custom of Kaye to cut off and discontinue supplying customers who fail to pay the charges demanded by him, and.that petitioners believe that he will follow his usual custom if the said sums named are not paid on or before the 16th day of April, 1921, and thereby cause each of them irreparable injury and inconvenience. It is further alleged that Kaye has no right or authority to enforce the rates fixed in the pretended ordinance, and that a petition is being circulated calling for an election on said pretended ordinance, such petition being signed by more than twenty per cent of the electors of the town.

It is further alleged that, if the payments were made and the ordinances should thereafter be declared void or repealed by an election, it would necessitate a multiplicity of suits to recover the amount so paid. It is further alleged that Kaye has incumbered all of his property and is heavily involved and would have been losing money for years past, and that he is probably insolvent or has his property so arranged that it cannot be reached by ordinary process of law, but that the appellants are not charging insolvency, as they are not informed as to that further than the statements of the records in the county, and prays for an injunction.

The defendant answered the allegations with reference to fraud and demurred to the bill. The chancellor sustained the demurrer and dismissed the bill without declaring the ordinance void for the reason that the bill did not allege that the rates charged the appellants were unreasonable for the services rendered, and that there was no offer in tlie bill to pay a reasonable charge, nor any allegation as to what a reasonable charge would be, holding that the ap-pellee was entitled to reasonable compensation for the services rendered.

We think the chancellor was correct in so holding, as the ordinance was not the foundation of Kaye’s right to collect, but the foundation of his right was the furnishing of the water and electric current. The municipality has the right under statute to regulate the charges to be collected, but they must allow reasonable compensation to the owner of the water and electric power plant for his services rendered. In the absence of a valid ordinance fixing the rates the appellee had a right to recover reasonable rates. In the case before us the appellants must stand either upon the ordinance or upon a reasonable rate, and, while they attack the ordinance as being void, they do not allege what is a reasonable rate, nor do they allege that the charges fixed constitute an unreasonable rate.

The judgment of the court below will therefore be affirmed.

Affirmed.