Where a private gas company, empowered to become a public
service corporation, challenged its status accordingly and
exercised the power of eminent domain soon after it had contracted
to furnish future supplies of gas to a consumer, and the face of
the contract and attendant circumstances showed that this change
was in contemplation when the contract was made,
held that
an order of a state commission allowing the company increased rates
was not an unconstitutional impairment of the contract. P.
267 U. S.
232.
161 Arkansas 12 affirmed.
Error to a judgment of the Supreme Court of Arkansas which
sustained an order of the State Corporation Commission allowing the
defendant in error gas company to increase its rates. See 161 Ark.
12; 153
Id., 170; 148
Id., 260.
Page 267 U. S. 232
MR. JUSTICE HOLMES delivered the opinion of the Court.
The Clear Creek Oil & Gas Company, a corporation of
Arkansas, petitioned the Corporation Commission of the state for an
increase of rates for gas used by smelters and the like. The Ft.
Smith Smelter Company objected on the ground that it received the
gas under a private contract made by the Gas Company, when it was a
private corporation, with two men to whose rights the Smelter
Company had succeeded, and that therefore the contract was not
subject to the modification asked. The Commission increased the
rate and, after intermediate proceedings, the order of the
Commission was affirmed by the supreme court of the state. 161 Ark.
12; 153 Ark. 170; 148 Ark. 260. The case is brought here by writ of
error on the ground that the order is a law impairing the
obligation of contracts.
Louisville & Nashville R. Co. v.
Garrett, 231 U. S. 298,
231 U. S.
318.
The Supreme Court decided that the Gas Company had power under
the laws of the state to become a public service corporation, but
was not bound to do so. Soon after the contract in question was
made, the Gas Company did become such a corporation, and as such
exercised the power of eminent domain. The Supreme Court held that,
if the contract was made when the company had not yet devoted
itself to the public service, still the instrument on its face, and
also the circumstances, showed that public service on the part of
the company was contemplated, with the consequence that the company
and all its contracts would become subject to public regulation. We
see no sufficient reason for disturbing this finding. As was said
below, the fact that the gas was to be delivered at Ft. Smith, 18
to 20 miles from the gas field specified in the agreement, showed
that a pipeline would be necessary. which, in the ordinary course
of events, would require the exercise of eminent domain. The gas
field
Page 267 U. S. 233
was large, and additions were agreed for. The contractors were
entitled to call for 150,000,000 cubic feet of gas for each 30
days, with a possible extension up to 300,000,000. They were given
the "first call" upon the company's gas supplies, and it was agreed
that, if the company should sell gas to consumers, except churches,
schools, hospitals, or charitable institutions at a rate less than
that fixed by the contract, there should be a corresponding
reduction. Everything, in short, pointed to a very extensive
enterprise which hardly would be possible without the power
incident to this public service under the laws of the state. It
would be most unusual, as all know, for such a Company to attempt
to work in any other way. It already had franchises in several
towns and cities to supply gas.
Judgment affirmed.