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Opinion, per MATTHIAS, J.

sity or expediency of each particular subject when it arises.

The allegations of the petition and amendment thereto with reference to the inadequacy of the prices charged for current sold for private consumption are in very broad and general terms, the substance of the complaint in that respect being that the prices charged are too low to meet the proportionate cost of generation and transmission of current furnished private consumers, thereby entailing a loss which the taxpayers of the city are required to meet

We think it must be conceded that the city, acting in a proprietary capacity, may exercise its powers as would an individual or private corporation. It may be that for a time the business will not be remunerative at the rates charged, yet with proper management the business may develop to a point where it will even yield a profit to the city and therefore result to “its own special benefit and advantage.

It does not appear that the present rates are lower than are charged by a competitor, nor is it disclosed that a higher rate could be procured, nor are there any averments in the petition from which it may be inferred that in the selling of electric current at prices inadequate to meet the cost of production the officials of the city have been actuated by fraudulent or improper motives.

It is quite apparent from the pleadings that the city's plant is used primarily for the purpose of lighting the streets and public ways of the city, the furnishing of light to private consumers being only

Opinion, per MATTHIAS, J.


incidental, and that at least a portion of such private service is during the day. The position of the city officials seems to be that a low price is justified in order to develop a day load and thus balance the inachinery of the plant.

A more serious question is presented by the allegations of the petition and amendment thereto with reference to discrimination by those in charge of the plant in furnishing current to private consumers; and, particularly, as to the failure to have or use any system or schedule of rates for such service, and arbitrarily fixing the rate in each case. The charge made by the plaintiff in this regard is in substance that the city has never used any system or schedule of rates of any kind whatsoever either for light or power for private purposes, and that prices and rates for said current have been at no time uniform, or substantially so, under like conditions, situations and circumstances, but have been widely different and varying.

The statute conferring power upon municipalities to establish, maintain and operate municipal lighting plans, under which the city of Columbus was acting at the time this suit was instituted, and theretofore, contains no provision whatever with reference to rates or charges for current furnished to private consumers, nor does it designate any officer or body whose duty it shall be to prescribe rates for such service, but under the provisions of Section 3616, General Code, the council of the municipality is authorized to provide by ordinance or resolution for the exercise of the powers enumerated in the chapter of which that section is a part,

Opinion, per MATTHIAS, J.

one of which powers is the operation of an electric light plant. The authority to adopt rates for current which the municipality was empowered to furnish "the inhabitants thereof” was clearly implied, and that duty devolved upon the municipal council. It follows that the fixing of rates for current from the city's plant by other officials or agents or employes of the city was unwarranted.

It is averred by the plaintiff that these officers having assumed such power and authority in the absence of a system or schedule of rates duly and properly adopted by council are using that power to discriminate between citizens with reference to furnishing the product of the city's plant, and particularly as to rates charged therefor. That such discrimination constitutes an abuse of power there can be no question. That neither public nor private corporations may discriminate between members of the public with reference to rates and terms of service does not longer admit of controversy. This wholesome rule, long in force, has had frequent application, particularly to common carriers and utility companies. A municipality operating a utility is not exempt therefrom. Acting in a proprietary capacity, we have seen, it should have the freedom of action of a private utility corporation, but it is also subject to the same restrictions as to practices of discrimination in rates and service.

But it is urged that the plaintiff is not a proper party to make such complaint, and that it not appearing that he suffers any injury by reason of the wrongful practices charged, he cannot maintain the


Opinion, per Matthias, J.

action. We think that contention is unsound. The solicitor could maintain the action under authority of the provisions of Section 4311, General Code. In such a proceeding he represents the public. If upon the request of a taxpayer the city solicitor refuses to institute the action, the taxpayer may do so by virtue of the provisions of Section 4314, General Code. He then represents the public just as would the solicitor had he exercised the power conferred upon him and brought the suit. These sections are remedial in their character and are therefore to be liberally construed and effectively applied in order to safeguard the rights of the municipality, the obvious purpose of their enactment.

For the reasons stated we are of opinion that the petition and amendment thereto state a cause of action in the respect indicated, and therefore that the court of common pleas committed error in sustaining the demurrer and the court of appeals erred in affirming that judgment.

Judgment reversed.


Opinion Per Curiam.



Deputy superintendent of banks - Approval of pay by common

pleas court In advance of services Requirement of Section 742-4, General Code - Mandamus.

(No. 15047 – Decided July 3, 1917.)


Mr. Hal C. DeRan and Messrs. McGhee, Davis & Boulger, for relator.

Mr. John M. Elliott and Mr. H. S. Ballard, for defendant.


BY THE COURT. The relator, George W. Knecht, in his petition filed in this court asks that a writ of mandamus be issued commanding defendant as superintendent of banks in charge of and in possession of the assets of the Osborn Bank of Osborn to pay the relator out of the assets of said bank the sum of $280. On June 26, 1913, the superintendent of banks appointed relator a special deputy superintendent of banks, to assist him, as agent, in the liquidation and distribution of the assets of said Osborn Bank. The relator qualified as such special

. deputy superintendent of banks and his compensation was fixed by the superintendent of banks at $280 per month, payable out of the assets of said bank, and such compensation in the amount so fixed was approved by the common pleas court of Greene county, Ohio, the county in which the office of said bank was located. Relator upon his appointment

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