#### Arkansas-Missouri Power Company v. Brown.

Opinion delivered March 26, 1928.

*777 H. L. Ponder, for appellant.

John L. Bledsoe and Schoonover & Schoonover, for appellee.

*778Kirby, J.,

(after stating the facts). It has long been settled law that, where a municipal corporation by ordinance grants ia franchise to a public service corporation to furnish electricity or gas to its inhabitants upon certain rates, terms and conditions, which are accepted in writing by the public service company, a contract between the parties is constituted, by which their rights ¡are to be determined, the terms and conditions becoming binding on the municipality and the company. Pocahontas v. Central Power & Light Co., 152 Ark. 276, 244 S. W. 712; Arkansas Light & Power Co. v. Cooley, 138 Ark. 390, 211 S. W. 664; Lonoke v. Bransford, 141 Ark. 18, 216 S. W. 38.

In § 2 of the ordinance granting the franchise to W. H. Skinner, of which appellant is now the assignee and owner, it agrees “to furnish to private consumers in said corporate town electrical energy at a rate of not exceeding 15e per kilowatt hour,” allowing a minimum charge not to exceed $1 per month.

It is not denied that the filling station of appellee, Brown, where he demanded that power and lights should be installed under the terms of the franchise granted by the city, was situate within the limits of the incorporated town. Neither is it denied that appellant refused to furnish appellee Brown power and lights for consumption at said filling station, attempting to justify its refusal to do so because of the small amount of power and electricity that would be consumed at the filling station and the high cost of supplying it to but one consumer, there being no other business house or residences in the vicinity of the filling station where other probable consumers might be served, and'for these reasons alleged that the .demand was unreasonable, unfair and unjust, and could not be complied with without great loss and damage to it.

There was no attempt made to disclose the amount of the revenue that was being derived from the entire service to the consumers in the city of Pocahontas, the •cost of such service, the value of the property devoted *779to the public use, upon which appellant had the right to expect a reasonable return, nor the profit derived from the service rendered, as to whether it yielded a reasonable return or a just compensation to the power company. Neither did the appellant company offer to furnish the service, which it was bound under the terms of its franchise or contract with the city to supply, to appellee’s filling- station in the corporate limits of the city for a rate which it regarded reasonable, but refused to supply it at all.

It could have applied to the city council for a change of rates for supplying consumers similarly situated, or permission to charge an increased or higher rate, if the rate was regarded unreasonable, but it could not show that the demand for the service under its franchise was so unreasonable as to excuse it from furnishing the service, by proving- only the probable expense for the service to be rendered the particular consumer with the revenue to be derived therefrom.

It is also true that appellee could only compel the furnishing of the lighting service to his filling station, under the terms of the franchise held by appellant, while his station was within the corporate limits of the city of Pocahontas. The fact that the territory upon which the filling station is situate has since been regularly detached and duly excluded from the corporate limits of the city, which have been contracted as shown by the motion to dismiss the cause, does not warrant such dismissal here, since appellee is entitled to an affirmance of the judgment for the damages recovered, in any event.

A dismissal of the appeal would still leave the order for a mandatory injunction in force, and while we do not determine whether appellant can be compelled under such injunction to supply the lighting service to appellee’s filling station, which is no longer in the corporate limits of the town, we do not find any reversible error in the record, and the judgment is affirmed.