ARK.] COAL DISTRICT POWER CO. v. BOONEVILLE. 1065 • COAL DISTRICT POWER COMPANY V . BOONEVILLE. 1 Opinion' delivered December 7, 1925: 1. . • MUNICIPAL CORPORATIONS—JUDGMENT FIXING RATES OF ELECTRIC-rrY.—Acts 1921, No. 124, §§ 19, 24, authorizes the circuit cour to • certify its judgment . fixing the rates of a •public service cor-: poration immediately to the . city council, and empowers the city • council thereupon to adopt such rates, with the privilege of an appeal within 30 days; as the pendency of an appeal prevents,1 'collection of the penalty' for violation of 'the rates fixed, bUt noi' " proceedings in preparation for imposing the iienalty. 2.. ' MUNICIPAL CORPORATIONS—JUDGMENT AND , ORDINANCE FIXING RATES—NOTICE.—The action of the oircuit • ceurt ,in certifying its judgment fixing rates for electricity to the city couricil immediately after, rendition thereof, and the adoption of rates by.the City' council, held to be pUblic acts within the:authority conferred by• the Legislature; Of which the parties th the 'suit must take notice. 3. MUNICIPAL CORPORATIONS—ESTABLISHING RATES FIXED BY COURT.- - Neither Acts 1921, No. 124, nor Crawford & Moses' Dig., § 7494, requires the city council to establish by ordinance the rates for electricity fixed by the circuit court and certified to the city. council, and such rates may be established by resolUtiOn. 4. ELE CTRI CITY — JUDGMENT FIXING RATES—FINAL IyHEN:—U , d e r Acts 1921, No. 124, § 24, providing that no penalty for vidlation. of rates fixed by the city council 'shall be incurred until an appeal from an order of the circuit court fixing such rates has been finally disposed of, held where the judgment of the circuit court fixing such rates was affirmed by the Supreme Court, it became final upon expiration of the time for filing a motion for rehearing, and the contention that the appeal was not filially disposed of until the Supreme Court's mandate was filed inithe circuit court was without merit. .• 5. APPEAL AND ERR OR— NECESSITY OF MANDATE.—Mandates to the lower court are necessary only in cases of reversal, and,. upon the affirmance of a judgment, it may be enforced by process out of the Supreme Court. Appeal from Logan Circuit Court, 'Southern District; Jantes Cochran ', Judge; affirined.. Jcintes E. McDonough, for appellant. Evans (b. Evans, for appellee. HUMPHREYS, J. This is a continuation ,of a suit between appellee and appellant herein, the purpose of
1066 COAL DISTRICT POWER CO. 1). BOONE \ T ILLE. [169 which was to fix and promulgate' rates for electrical energy to be furnished by appellant to the consumers of the.city of Booneville. The rates were fixed by the city of Booneville Pursuant to authority conferred bY act 124 of the Acts of the General Assembly of 1921. Appellant herein prosecuted an appeal to the' circuit . court of-the SouthernDistrict Of Logan Connty froth the aCtiOn of the 'city -pouncil , of Booneville fiXing and .pronmlgating said rates. The case was tried de novo in the circuit court resulting in a judgment fixing Tates :which, in the opinion of the court, would afford appellant herein reasonable compensation for its electricity. The judgment Was 'rendered by the circuit court On September 1,1923. APpellant herein immediately prayed an appeal froM that ,judgment to the Supreme Court, which was granted.by :the circuit court. On the same day the circuit court ordered it§ clerk•to certify the judgment 'fixing the rates dOwn to the city counoil of Booneville. The clerk immediately complied With that. order. On the 3rd day of September, 1923, the city eouncil, by resolution, at its, regular peet-ing, adopted the rates: contained: in the 'judgment of) the circuit court, and . spread: them upon its record.- On' Sep-teMber 26, 1923, the appellant'herein filed a-superedeas bond and lodged a transcript 'of the proceedings :iti the offiee of the clerk of the : Supreme Court.: On the , 24tii day of December; 1923, this court-affirmed the judgment of the circuit court fixing the rates' that appellant herein5might charge the cons liners for electricity within theThity of Booneville: The mandate of the Supreme Court wa g filed in the eirC'uit couit on February 26, 1924. This suit was brought on tbe 6th day : of March, 1924, by appellee herein against, appellant herein, its officers, • agent, and emploYees to.recover the penalty. provided in § 24 of act 124 of the Acts , of 1921 for charging the ron-sumers more than the rates : fixed by the , e ity c . o uncil, under order of the circuit edurt, 'from the time this court affirmed the circuit court's judgnient 'and . the date' on which : appellant herein put the rates fixed by :the cirenit
Co4.1! DISTICT POWER CO. v. BCO ,NEVILLE. .1067 court ao adopted . .by , the 'city , council into , effect. The penalty. imposed upon , a, public .utility, for violating. the •Tates ficed by a , city Council under ,§ , 24 Of, .said ; act , for . ! !furnishing its commodity to . consumers within the city is . ;not ,less than $10 .nor 'more than.. $500 for ; each daT the violation Occurs. The. tri,a1 ;court ruled that the appeal in . the original ease was finally disposed of fifteen judicial day§ .. afte'iythe affirmanee . by thiS CoUrt, the time - allowed fOr filinga.Motion f • Or a reheariiig. t . ThirsUant tb . thlg ipg a judgment ; was rendered'againSt aPpellant, penaliz-' ing . it ; in the Minh:Mim . abionnt for thirty-nine daYs, 'frOm WhiCh Judgthent it has' 'prosecuted an appear to, thi's''cOUrt. reversal..of , the judgment is .sought .1 on three • rounds :;,..first i that, after appellant herein praYed . and : was ,granted an ; appeal under . the proVisions . of said;act, the trial court, was without authority, to, certify tho judgment . to the.city councif,, and ; the city .council was IVithOut authority , to adopt . and.fix the rates, contained in ; the judg-,..ment, so certified to it ; second,,that, if ; the council had such .auth , ority,. it must have, adopted the new rates by, ,hance duly published ; and,., , that in no 67e, tcOuld appellant be penalized until after the mandate.tof the Supreme Court was. filed. • • • • . . . • A prOp er. ' olution. of ;the . points liaised. must. be found • in the correct interpretation of, parts of § .1 § 9 and 24 of . said: ac ' t 124 of the .Acts'of .1921, .as 'follows . . r • • .1 ) art , of .§. 19,, : "The 'court:in reyiewing the.;action of , the ,council or . commission; , shall hear eyidence..and determine what rates would, afford, the appellant valid .;and reasonlable compensation for; the services _rendered, ..and shall , enter . an order. setting .out ,snch . rates and ;cause , the same to be certified to the council or commission, ;and • such council or . commission . shall; thereupon fix such, Tates as he. in conformity with the finding . of ,the court ; 'provided either Tarty shall . have: ,the right ; to .appeal :to the; 'Supreme , Court . within thirty days 'from the , rendi don ; ;of such order, in which eyent . the s'aid council .or commission shall await the further orders ' of the court.'' • •
1668 COAL DISTRICT Powtrt, Co. v. BOONEVILLE. [169 Part of §. '24. "Previded, however, that there shall be no penalty or'damages fôr any sUch violation until the 'aPpeat from suCh rule; regulation,.dt order of the munic-' , iPal council or citY commission -shall have been.!finally disPosed of, if Such an 'appeal be tak'en within the time 'arid in the 'manner provided by this act." (1) A careful reading of these two sections leads us , to the view that the Legislature intended tO authorize the circuit cOurt to immediately certify iis judgment fiXing the rateS to the city CounCil, and to empower, the cOnricil to, adOpt such rates at once, with the privilege , of appeal Within thirty days, in Which eyent the penalty 'provided in § 24 should not attach' until the' aPpeal was finally dis-:Posed of. The purpose : Was to'inhibit -the' Collection of a penalty for a Violation Of the rates fixed until a final' disPositiOn of the' case . On 'appeal; and Was not -6:1 prevent PrOceedings in preParation for the impositiOn , of 'a pen-afty for a viOlation' of the rates unless arid Until:the rates 'Were affirmed by . the SuPreme CoUrt. The action' of the Circuit coUrt in certifying itS judgthent down to the city cOUncil and the adePtion' of the rates fixed in the circtit court'S judgment bY 'the 'city' cOuncil were public acts, within the authority conferred b a y the Legislature, of Which : parties to the snit must'necessarily take notice. There is' nothing ' in the act requiring . the city council to establish ri?ir ordinance the rates fixed by the circuit' Court and certified back to' it. The' act provides ,that: when the judginent of the circtit court is certified '• to*the . coUncil, it "shall thereupon fix such rates as shall • be in cdnformity With the finding- of the court." The authority conferred upon the city council to' fix rates for public utilities is not within any one of the classes re-. : quired to be exercised by ordinance under § 1494 of'Craw-• ford & Moses ''PigeSt. Where the law conferring authority on the city council to act does not require same to be exerbised b ordinance, it may be' exercisedby'resolution. Arkadelphia Lwm,ber CO. : v. Arkadelphia, 56 Ark. 356; Bentonville v. Ball, 100 Ark. 496.
(3) The statute requires that the penalty sued for in this case dannot be imposed until ' the appeal from the circuit court's* ' judgment fixing the rates has been finally disposed of. Appellant contends that the appeal was not finally disposed of until the mandate..of the Supreme Court was : filed in the lower court. We :cannot agree with the learned attorney kir appellant in this contention. The judgment. of . the .circuit court was affirmed and became final after the time expired for filing . a motion for rehearing. There , was nothing further for the trial court to do. .It was• unnecessary.for it to. make further orders ;. hence . there was' no necessity for a mandate., It iS only in cases of a reversal that mandates to the lower court are necessary. : f.Tpon affirmance of judgments .they ..ntay be enforced by:process out of the . Supreme Court. No error, , appearing, the judgment is affirmed. Justices WOOD and SMITH dissent,. -
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.