Gas Elec. Co. v. City of Dowagiac , 273 Mich. 153 ( 1935 )

Petition by plaintiff for an order adjudging defendants guilty of contempt for violating a final decree of the trial court.

The city of Dowagiac is organized as a city of the fourth class. Const. 1908, art. 8, § 23, provides:

"Subject to the provisions of this Constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof," etc.

The city of Dowagiac, under its charter, had, prior to the Constitution of 1908, and still has, the right to acquire by purchase or to construct, operate and maintain, either within or without the city, works to supply gas, electric and other lights to the city and to the inhabitants thereof. I Comp. Laws 1929, § 2100. Incident to its right to furnish electricity to its inhabitants, it has a right to do the necessary wiring in connection with its distribution system.

In pursuance of the power vested in it, the city of Dowagiac owns and operates a municipal electric light plant and has the constitutional and statutory authority to sell and furnish electricity to private individuals in connection with the operation of its plant, to install and maintain a distribution system so to do. This power and authority vested in it by its constitution and charter may not be abdicated by any franchise.

The Michigan Gas Electric Company filed a bill and obtained a decree against the city of Dowagiac, enjoining the defendant from enlarging or extending its electric lines for the sale and distribution of electrical energy until proper proceedings had been taken therefor, and from generating and distributing electrical energy for sale to the public until proper proceedings had been taken therefor.

Just what these proper proceedings were is left wholly indefinite by the decree. The court was wholly without jurisdiction to make any decree in violation of the Constitution and laws of the State covering the ownership and operation of works for the sale and distribution of electrical energy, and we cannot find it assumed to do so. Assuming, as seems to be conceded, this decree was valid, defendants sought to extend their lines or distribution system so as to furnish electricity to some private individuals. This they clearly had the general power and authority to do. The thing of which plaintiff had a right to complain was the irregular or improper exercise of that power.

A petition was filed against the defendants for contempt in making these extensions. The petition sets up the terms and provisions of the decree, and that the defendants had made certain extensions of their lines to private individuals. It claims in its petition that this was done wantonly and wilfully and for the purposes of prejudicing the rights of petitioner, and constitutes a contempt of the order and decree of the court, which should be punished.

There is nothing in this petition which sets forth the manner in which the defendants violated the injunction issued, and no valid order adjudging defendants guilty of contempt can be made unless the petition or affidavits made the basis of the order set forth the nature and cause of the accusations against them by setting up facts sufficient to constitute contempt as a matter of law. 13 C. J. p. 65.

It is presumed the defendants, in making the extensions of their distribution system, acted regularly and within the scope of their power.

The petition wholly fails to set forth the manner in which the defendants violated the injunction and decree and are guilty of contempt, and the conviction is, therefore, reversed, with costs.

NELSON SHARPE, NORTH, FEAD, WIEST, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.