City of Mitchell v. Mitchell Power Co. , 46 S.D. 110 ( 1922 )

GATES, P'. J.

This action was begun to enjoin defendant from charging consumers of gas a rate in excess of the maximum rate specified in its franchise and1 from discontinuing its service. Plaintiff moved for a temporary injunction. Defendant demurred to the complaint for want of facts. The hearing on both was had at the same time upon the pleadings and an affidavit of pláintiff’s attorney corroborating the allegations of the complaint. In one order the.trial court overruled defendant’s demurrer to the con> plaint and granted an injunction pendente lite. Defendant appeals.

Appellant relies upon the cases hereinafter cited. While the city and the defendant’s predecessor were powerless to make an irrevocable contract as to rates (City of Lead v. Western Gas & Fuel Co., 44 S. D. 510, 184 N. W. 244; Id, 45 S. D. 280, 187 N. W. 162; City of Mitchell v. Board of R. R. Corners, 44 S. D. 430, 184 N. W. 246), yet the rate specified in the franchise will, in the absence of negative allegations, be presumed to be a reasonable rate for the purpose of considering the sufficiency of the complaint, on demurrer. And upon the, hearing of a motion for a temporary injunction the like force would be given to such specified rate, in the absence of affidavits tending to show such rate to be unreasonable.

The order appealed from is affirmed.

Note — Reported in 190 N. W. 1013. See American Key-Numbered Digest, Gas, Key-No. 14(1), 28 C. J. Sec. 40.