Golden State Milk Products Co. v. Southern Sierras Power Co.

STURTEVANT, J.

Claiming that the defendant had made and had collected excessive charges for its service the plaintiff sued the defendant for the amount of the overcharge. Judgment went for the defendant and the plaintiff has appealed bringing up typewritten transcripts.

Formerly the plaintiff was served by the Holton Power Co. The charges of that company were fixed by schedule “P_2”. In January, 1924, that company sold its business to the defendant. Prior to the transfer the defendant had been serving some adjacent territory and its charges were fixed by schedule “P-22”. When the Railroad Commission authorized the defendant to purchase the properties of the Holton Power Co. that permission rested on the assurance that the “consolidation will not result in any change of management or rates”. In effecting the consolidation the defendant filed with the Railroad Commission “P-22” which

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by its terms purported to fix the charges to be collected from the plaintiff. Thereafter it was discovered that “P-22” was not a duplicate of the rate stated in “P-2” because condition “C” as written in the former document was not the same as in the latter. If the provisions of “P-22” were followed the result would be that the charges made against the plaintiff would be less than the charges the plaintiff had been paying under “P-2”. When these matters were called to the attention of the Railroad Commission that body authorized the defendant to file a schedule designated “P-31” which purported to supplant schedule “P-22”. The new schedule “P-31” fixed the same charges that were fixed by “P-2”. However, “P-31” purported to authorize the charges which were made and which were in excess of those authorized by “P-22” and it is such alleged overcharges that are involved in this action. At this time the plaintiff contends that it is supported in its position by the clear provisions of the Public Utilities Act (2 Peering’s General Laws, 1923, p. 2683, Act 6386). It cites and relies on section 63a. Both parties concede that schedule “P-22” was effective from the date it was filed until August 26, 1924. On that date the defendant filed schedule “P-31”. By its terms it purports to authorize higher charges. Before the defendant filed that schedule the Railroad Commission did not make a finding that such increase was justified. For that reason the plaintiff claims schedule “P-31” is not effective and it cites section 63a of the Public Utilities Act. That section provides as follows: “Increase in rate only after showing (a) No public utility shall raise any rate, fare, toll, rental or charge or so alter any classification, contract, practice, rule or regulation as to result in an increase in any rate, fare, toll, rental or charge, under any circumstances whatsoever, except upon a showing before the commission and a finding by the commission that such increase is justified.” The defendant makes two separate answers. It claims that even though schedule “P-31” was not effective the record does not justify the plaintiff in claiming that “P-22” then became the effective schedule. The second answer is that schedule “P-31” was legally filed and became operative from the date it was filed. The second answer we think is sound and we will not have occasion to discuss the first one.