State ex rel. v. Clark.

and having substantially the same degree of protection against fire, as against an assured residing in the country, or in a city, town or village having less than one hundred thousand inhabitants, it is obvious that contradiction, contrariety and irreconcilableness inhere sufficient for a repeal of said Section 7023, by implication. If there is no difference in the hazards and the amount of protection against fire afforded to property situate in a city containing one hundred thousand inhabitants or more, as compared with that in a rural community, or in cities, towns and villages of the State containing less than one hundred thousand inhabitants, manifestly the point is well taken.

But is there not a difference, and is not that difference great enough to furnish a reason for the legislative distinction made? We think both of these questions must be affirmatively answered. For it will be seen that Section 7 does not prohibit all discrimination in rates; it only prohibits such discrimination in cases where the hazards are equal and the same degree of protection against fire is afforded. It is idle to say that the hazards of fire and the protection against the same are equal in St. Louis and Clinton, or in Kansas City and Cape Girardeau, or in St. Joseph and Cedar City. On first blush, the general provision in said Section 7 of the Rating Act, which forbids unfair discrimination "between risks in the application of like charges and credits," might seem to require the Reduced Rate Contribution Clause on every policy, if it is to be attached to any; because such a clause is either a charge or a credit (relators in effect say it is the latter) within the purview of Section 1 of the act, which requires all such charges and credits to be rated. But it is fairly clear that the words "charges and credits" simply mean, as the next subsequent clause makes plain, "hazards" of fire and "protection. against fire." No other meaning is possible. Some of these charges are made upon the basis of nearness and nature of exposures, and some for defective construction, or construction below the standard fixed,

State ex rel. v. Clark.

of the building insured, or the building containing the insured property. It is plain that these are "hazards,” within the meaning of the last clause of the section. Likewise, the same is true of the "credits." These depend on the nearness and nature of the fire protection afforded, the distance and kind of exposures, and the nature of the construction above standard. So, all the charges and credits of this section depend wholly on the hazards and protection against fire. Indeed, this is the effect conceded by learned counsel in their exhausive briefs, for they strenuously insist that it was the intent of, the Rating Act to give to insurers throughout the State "regardless of where their property may be located, the same rate when the conditions and the risks are the same.

If these conditions and risks are the same, then the Legislature, having no right to differentiate as between such risks, whether they are in rural dis tricts or in cities of one hundred thousand or more inhabitants, must have intended to repeal Section 7023 supra, when they passed Section 9 of the Rating Act. If there is a difference in the hazards and the fire protection respectively afforded, then it is manifest that there. is no inconsistency or repugnancy in these provisions, and the Legislature did not intend to repeal Section 7023. [State v. Moulton, 262 Mo. 137; State ex rel. v. Wells, 210 Mo. 1. c. 620; State ex rel. v. Wilder, 197 Mo. 27; I Lewis's Sutherland on Stat. Con., sec. 256.] The rule upon both phases of this proposition is well stated in the excellent work of Mr. Lewis, thus:

"Affirmative statutes which contain no reference to existing statutes, either to amend or repeal them, import that the law-maker has no conscious purpose to affect them, unless by congruous addition. On the other hand, when there is inserted in a statute a provision declaring a repeal of all inconsistent acts and parts of acts, there is an assumption that the new rule to some extent is repugnant to some law enacted

State ex rel. v. Clark.

before. There is a repeal to the extent of any repugnancy in either case, but no farther. The insertion, therefore, of such a general repealing clause adds nothing to the repealing effect of the act.'

Other things being equal we have long accorded to the Legislature the privilege of classification in legislation upon the basis of population. [State ex

inf. v. Southern, 265 Mo. 1. c. 286; State ex inf. v. Tobacco Co., 177 Mo. 1; State ex rel. v. County Court, 128 Mo. 1. c. 442; State ex rel. v. Bell, 119 Mo. 70; State ex rel. v. Roach, 258 Mo. 1. c. 561; State ex rel. v. Miller, 100 Mo. 1. c. 447.]

Upon this consideration in the last analysis the whole case as presented turns. We are constrained to say that since the Legislature had the authority to make the population distinction which occurs and which justifies the classification, we cannot say that there exists any sufficient repugnancy and inconsistency, as to work a repeal of Section 7023, by that implication, arising from the express repeal of inconsistent acts and parts thereof.

Other questions raised by respondent, viz., (a) that the proviso appended to Section 7023 is itself unconstitutional, and (vaguely) (b) that since the exercise of the authority to approve a form of standard fire or lightning insurance contract is one which under the statute (Sec. 7030, R. S. 1909) rests in the sound. discretion of the Superintendent of Insurance, that discretion, so far as it is bottomed on policy, cannot be interfered with by mandamus, not being necessary to a decision, have not been considered. Neither have we considered the effect upon relators' position of the holding in Nalley v. Home Insurance Co., 250 Mo. 452, touching the constitutional validity of said Section 7030, Revised Statutes 1909. We have considered the case as it was presented to us.

It follows that the demurrer of respondent herein should be sustained, and the peremptory writ denied, and it is so ordered. All concur.

State ex rel. Watts Eng. Co. v. Public Service Com.

THE STATE ex rel. WATTS ENGINEERING COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION.

In Banc, June 28, 1918.

PUBLIC UTILITY: Reduction of Rates: Suspension During Appeal: Money Earned Belongs to Company. Where the Public Service Commission, in order to test the reasonableness of rates charged by a gas company, ordered it to reduce its rates to specified maximums for a period of three years, and retained jurisdiction in order that a proper final order might be made after the test was tried out, and on appeal by the company to the circuit court the order was affirmed, but the court, pending an appeal to the Supreme Court, suspended the order and impounded the excess in rates over those fixed by the Commission, and its judgment was affirmed by the Supreme Court, the gas company is entitled to the excess collected during the time the appeal was pending in the Supreme Court; for, the order having been suspended, the company was lawfully entitled to adhere to its former rates until the judgment of affirmance was rendered.

Appeal from Cole Circuit Court.-Hon. J. G. Slate, Judge.

REVERSED AND REMANDED (with directions).

J. L. Hornsby for appellant; W. M. Fitch of counsel.

(1) The entire sum of $8481.28 and interest earned thereon was ordered impounded by the circuit court without authority of law, and the whole of said sum is due the appellant, and should be paid to it. (2) Even if the gas consumers who originally paid this fund to appellant had any interest in the fund, the fund should not be distributed until after the Public Service Commission has made a final order fixing reasonable rates to be charged by appellant.

State ex rel. Watts Eng. Co. v. Public Service Com.

Alex Z. Patterson, General Counsel, and James D. Lindsay, Assistant Counsel, for respondent, Public Service Commission.

(1) The right of having a supersedeas or suspension of the order is not a constitutional right, but is purely statutory, and extends no farther than the clear limits of statutes creating it. Sections 112 and 114, Public Service Act; State Public Utilities Commission v. Chicago & W. T. Rd. Co., 275 Ill. 555, P. U. R. 1917B, 1. c. 1059. (2) The statutes allowing a suspension make no distinction between an order declared to be in the nature of a "test" order, and one made without expressed conditions or reservations. Sections 112 and 114, Public Service Commission Act. (3) The difference between an order without reservation fixing rates and what is termed a "test" order, is not a difference in kind, but is a difference in degree of conclusiveness expressed, as to the permanence, and reasonable character of the rates fixed. Under the Public Service Act and in the inherent nature of the subject itself, all rate orders are more or less empirical. Sec. tions 20 and 82, Public Service Commission Act. And this applies to all commissions and rate-making processes. (4) The attitude of courts in respect of tests in cases where the rates of the company have been lowered, is not that the company shall be permitted to charge the former rates, but that it must, unless the new rates appear to be confiscatory, submit to the new rates, with the right and opportunity, within a reasonable and proper time, to make application for a raise or readjustment of rates, or, if the suit be for injunctive relief, renew its application for an injunction. Darnell v. Edwards, 244 U. S. 564; Wilcox v. Consolidated Gas Company, 212 U. S. 1; Knoxville v. Knoxville Water Company, 212 U. S. 19; Missouri v. C., B. & Q. Railroad, 241 U. S. 533. (5) The appellant was entitled to, and was allowed a suspension of the order only until "the final decision of the case" (the case in court), and could not be more entitled to re