
    THE CITY OF MITCHELL, Respondent, v. MITCHELL POWER CO., Appellant.
    (190 N. W. 1013.)
    (File No. 4798.
    Opinion filed December 12, 1922.)
    Gas — Rates—Franchise—Presumptions—Injunctions—Rates Specified in Franchise Presumed Reasonable in Absence of Contrary Showing.
    While a city and a gas company were powerless to make an irrevocable contract as to rates, yet the rate specified in the franchise, in the absence of negative allegations, will be presumed to be a reasonable rate, for the purpose of considering the sufficiency of a complaint on demurrer, and on a hearing for a motion for a temporary injunction a like force will be given to such specified rate, in the absence of affidavits tending to- show that it is unreasonable.
    Appeal from Circuit Court, Davison County; Hon. Frank B. Smith, Judge.
    Action by the City of Mitchell against Mitchell Power Company. From an order overruling the demurrer to the complaint, and granting an injunction pendente lite, defendant appeals. Order
    affirmed.
    
      Spangler & Wire, of Mitchell, for Appellant.
    
      F. W. Mitchell and Laurits Miller, 'both of Mitchell, for Respondent.
    'Appellant cited: City of Lead v: Western Gas & Fuel Co.; 44 S. D. 510; Southern Iowa Electric Co. v. City of Chariton, (U. S.), 65 L. Ed. 514; San Antonio v. San Antonio Pub. Service Co., (U. S.), 65 L. Ed. 518.
    Respondent cited: San Antonio Traction Co. v. Altgeld, 200-U. S. 304, 50 L. Ed. 592; Grand Rapids & Ind. Ry. v. Ogden, 193 U. S. 17, 48 L. Ed. 598; Omaha Gas Co. v. City of Omaha, 249 Fed. 350.
   GATES, P'. J.

This action was begun to enjoin defendant from charging consumers of gas a rate in excess of the maximum rate specified in its franchise and1 from discontinuing its service. Plaintiff moved for a temporary injunction. Defendant demurred to the complaint for want of facts. The hearing on both was had at the same time upon the pleadings and an affidavit of pláintiff’s attorney corroborating the allegations of the complaint. In one order the.trial court overruled defendant’s demurrer to the con> plaint and granted an injunction pendente lite. Defendant appeals.

Appellant relies upon the cases hereinafter cited. While the city and the defendant’s predecessor were powerless to make an irrevocable contract as to rates (City of Lead v. Western Gas & Fuel Co., 44 S. D. 510, 184 N. W. 244; Id, 45 S. D. 280, 187 N. W. 162; City of Mitchell v. Board of R. R. Corners, 44 S. D. 430, 184 N. W. 246), yet the rate specified in the franchise will, in the absence of negative allegations, be presumed to be a reasonable rate for the purpose of considering the sufficiency of the complaint, on demurrer. And upon the, hearing of a motion for a temporary injunction the like force would be given to such specified rate, in the absence of affidavits tending to show such rate to be unreasonable.

The order appealed from is affirmed.

Note — Reported in 190 N. W. 1013. See American Key-Numbered Digest, Gas, Key-No. 14(1), 28 C. J. Sec. 40.  