State, ex rel. v. Union Gas & Elec. Co. tract in which the legal relations between the parties was determined. Judgment reversed. Smith, J., concurs. Giffen, J., dissents. CORPORATIONS PLEADING [Hamilton (1st) Circuit Court, February 5, 1910.] STATE EX REL. HENRY T. HUNT, PROS. ATTY. V. UNION GAS & ELEC. Co. Allegations as to Discrimination for Electric Current Rates Insufficient without Alleging Injury to Customers. Mere discrimination by a public service corporation without substantial injury is not necessarily unlawful; hence, allegations will not lie as to discrimination in rates charged for electric current, when made without regard to circumstances and conditions or any averment that consumers are unfavorably affected thereby. Miller Outcalt, Lawrence Maxwell and J. S. Graydon, for defendant. Henry T. Hunt, Pros. Atty., for plaintiff. GIFFEN, P. J. The defendant, a corporation under the laws of Ohio, exercising the rights and privileges in the city of Cincinnati, and engaged in supplying gas to the inhabitants thereof, and also electric current for light and power, was charged in the petition with discrimination in the matter of rates, which the petition alleged were not uniform but are based on whim, favor and caprice; and the court was asked because of the discrimination so practiced to oust the company from its rights and franchises. Hamilton County Circuit. It is charged in the petition that "The defendant discriminates in the price charged and exacted from the users and consumers of its product, basing said prices in multitudinous instances not upon the cost of service, but upon various other irrelevant and unlawful facts, circumstances and conditions: "1st. It charges a less rate per kilowatt for electric current used for power than for electric current used for light." There is no averment that the rate charged for electric current used for light is unreasonable, nor is there any averment of other facts tending to prove that the discrimination is unjust or unlawful. On the other hand the very difference in the conditions suggests a discrimination in rates, and the burden of alleging and proving its illegality rests upon the relator. "2d. It charges rates based on the average consumption of electric current per 16-candle-power lamp possessed and available by the said users and consumers, and not upon the actual amount of current consumed." The objection to this discrimination is, like the first instance, based on the theory that the rate should be uniform, regardless of conditions. If one consumer has available ten times as many lamps as another, but they both use the same number, it is manifest that the additional expense of preparing for the unused lamps should be borne by the customer causing it. Hence the actual amount of current consumed is not the true and correct basis for fixing rates, under the circumstances and conditions are similar. "3d. It charges such users and consumers as have access to other sources of supply, a less rate per kilowatt consumed than the rate per kilowatt charged to users and consumers as have not access to other sources of supply." There is no averment that the rate charged to the latter class is unreasonable, nor that the discrimination in favor of the former class is unjust to the latter, nor of facts warranting such inference. It is manifest that this discrimination is based upon competition, which is a proper element to be considered in fixing rates, although by no means conclusive. If the discriminating rate will tend to create a monopoly by excluding from the market the products of the competitors of the favored class it is not justifiable, even though defendant could not otherwise secure State, ex rel. v. Pennsylvania Co. the custom. State v. Cincinnati, N. O. & T. P. Ry., 47 Ohio St. 130 [23 N. E. 928; 7 L. R. A. 319]. The same objection applies with equal force to paragraphs four and five of the petition, and assailed, by the motion of the defendant, which in effect is, that the pleader assumes the only correct basis for determining the rates to be charged is the amount of current consumed, without regard to circumstances and conditions, and whether or not injuriously affecting consumers. The question whether the charges of a public service corporation are unjust and unreasonable, and whether they unjustly discriminate, often depends upon a variety of circumstances, making it complex and difficult of solution, as shown by the exhaustive discussion in the case of Scofield v. Railway, 43 Ohio St. 571 [3 N. E. 907; 54 Am. Rep. 846]. It is apparent from that case, as well as others following and approving it, that mere discrimination without substantial injury is insufficient to make it unjust and unlawful, but the facts showing such injury must be averred and proved. We are of the opinion, therefore, that the motion to strike out certain paragraphs of the petition should be sustained. Smith and Swing, JJ., concur. QUO WARRANTO-RAILROADS [Holmes (5th) Circuit Court, November, 1909.] Taggart, Donahue and Voorhees, JJ. STATE EX REL. SIMPSON, PROS. ATTY. V. PENNSYLVANIA Co. AND CLEVELAND, A. & C. Ry. STATE EX REL. SIMPSON, PROS. ATTY. V. BALTIMORE & O. RY. 1. Quo Warranto Instituted by Prosecuting Attorney to Oust Railway Relief Association. A prosecuting attorney may institute and prosecute an action in quo warranto to oust a railway relief association which it is alleged has been organized and is being conducted in violation of the laws of the state. Holmes County Circuit. 2. Power of Legislature to Restrict Railway Relief Associations. The general assembly has power to enact proper restrictions with reference to the character of relief associations which railway companies may maintain or assist in maintaining, and the requirement as to such relief associations contained in Sec. 3270 R. S. (Sec. 8746 G. C.), as amended (99 O.L. 71) is not violative of any constitutional provision. These actions were brought by the prosecuting attorney of Holmes county for the purpose of ousting certain railway relief associations organized and maintained by or under the control of the defendant companies. The allegations were that the employes of these companies, as a condition of their employment, are required to sign a contract which makes them members of the relief association and contains the conditions of a policy of insurance, though the relief associations are not organized under the insurance laws or for the protection of said employes; and that said contract contains the provision that the employe signing it thereby waives any claim for damages on account of personal injuries or death, contrary to the provisions of Sec. 3270, R. S. (Sec. 8746 G. C.), or of the insurance laws of the state. David T. Simpson, Pros. Atty. and F. S. Monnett, for plaintiff. Cary & Mullins, for Pennsylvania Co. Allen, Waters, Young & Andress, for Cleveland, A. & C. Ry. Arrel, Wilson & Harrington and Geo. W. Sharp, for Baltimore & O. Ry. TAGGART, J. This cause was submitted to the court on motion of the Pennsylvania Company to require the plaintiff to make its amended. petition more definite and certain in respects stated and set out in said motion. We are of the opinion that this motion must be overruled, as the averments of the petition in our judgment are sufficient to maintain this action, in that the petition sets forth that the Pennsylvania Company has established and still maintains and has assisted in establishing and maintaining a certain relief association, or society, commonly called Voluntary Relief Association, which require of its employes to enter into contracts, State, ex rel. v. Pennsylvania Co. agreements or stipulations, which are contrary to the provisions of the statutes, provisions of Sec. 3270 R. S. (Sec. 8746 G. C.), as amended April 7, 1908, 99 O. L. 71, 72. We think the petition with certainty and definiteness informs the defendant filing this motion what is asserted and claimed against it. The motion may be overruled with exceptions and with leave to file a demurrer. The Cleveland, A. & C. Ry. filed a demurrer to this amended petition. The grounds of the demurrer are: 1st. That the plaintiff has no legal capacity to sue. In respect to this we think that the clear provisions of the statutes authorize the plaintiff as prosecuting attorney to institute and prosecute this character of cases. It is further contended, as a second ground of demurrer, that the amended petition does not state facts sufficient to constitute a cause of action on the grounds that said Sec. 3270 R. S. as amended April 7, 1908, is unconstitutional and void. We are of the opinion that it is entirely competent for the Legislature to place proper restriction upon a corporation, such as a railroad company, in respect to its conduct and operation, and the character of relief associations that it maintains or assists in maintaining, and that it is not violative of any of the provisions of the Constitution. The third ground of demurrer is that there is a misjoinder of parties defendant. The provisions of the statute are, that a railroad company may establish and maintain or assist in establishing relief associations, but they are not permitted to maintain or assist in maintaining relief associations having certain specific rules and regulations. It is averred in this petition that both of the defendants are engaged in maintaining such relief associations, and that there is such unity of action and consort of parties that would bring the case within the provisions of the amended section. We are of the opinion that the demurrer to the amended petition should be overruled with exceptions. The defendants |