The opinion
On Motion for Rehearing.
Owing to the newness and importance of the questions involved, the discussion, first and last, has covered a wide range; however, on the assumption that amended article 1119 is valid, we believe the previous questions may be stated thus: (1) Was the city of Farm-ersville authorized, in the exercise of the rate-making power delegated by said statute, to enact the minimum rate ordinance in question, and is it entitled to the writ of mandamus compelling obedience thereto? (2) In view of the public policy antagonistic to monopolies, as declared in the Constitution and various statutes of the state, in view of the policy that fosters municipal ownership of utilities, as a means of preventing or combating monopolies, and in view of the rate cutting indulged in by appellee, which, unchecked, will result ultimately in the destruction of appellant’s plant and the establishment of a monopoly favorable to appellee, under these circumstances, was appellant justified, without regard to the validity whether or not of the ordinance as a rate regulation, in prescribing minimum rates as .a preventive measure, and is it, in tlie.situation described, entitled to.the equitable relief sought?
Our affirmative answers to these questions will be found in the original opinion, to all of'Which we adhere.
Counsel for appellee insist that we erred in restating the amended statute, that is, in retaining the valid and rejecting the invalid portions, because, as restated, the statute does not truly represent legislative intent, in that the Legislature would not have amended the article as to population, without also making the indicated, change in the rate provision.
On original submission we gave due consideration to this phase of the subject, but did not discuss it in the opinion. The adjudicated cases shed but little light as each decision turned largely upon its peculiar facts. The governing principle, we think, was correctly stated by Justice Depue for the New Jersey Supreme Court, in Johnson v. State, 59 N. J. Law, 535, 37 A. 949, 950 , 39 A. 646 , 38 L. R. A. 373, as follows: “It is undoubtedly elementary law that the same statute may be in part constitutional and in part unconstitutional, and, if the parts are wholly independent of each other, that which is constitutional may stand, and that which is unconstitutional will be rejected; but if the different parts of the act are so intimately connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature would not have passed the residue independently, and some parts are unconstitutional, all the. provisions which are thus dependent upon each other must fail.”
In reachiríg a decision of the questions, we may consider, among other things, the history of the act. Acts 1931, c. 226. As introduced, the bill (H. B. No. 798) indicated but ■one purpose; that is, to amend the statute by changing the population of towns within its scope from 2,000 to 1,000. In this form it was reported favorably by the committee in charge, but, on a second reading in the House, was amended on the floor in two respects, one by changing the figures 1,000 to 500, wherever they appeared in the bill, thus clothing a larger number of towns with regulatory and rate-making powers, and by striking out the word “less” anfi inserting the words “not more,” thus changing the minimum rate provision of the statute to a maximum rate provision, and as amended the bill was engrossed and finally passed by both Houses.
The emergency clause also sheds light upon the inquiry. It reads in part: “The fact that towns, of populations ranging between five hundred (500) and two thousand (2000) are confronted with the same problems as towns of lax*ger populations, creates an emergency, etc.” Thus it appears that the caption and emergency clause are entirely harmonious, expressing but the one object sought; that is, to amend the statute, so as to bring within .its.scope all towns having in excess of 500 population. Why was this deemed neces-, sary? The emergency clause answers; because all these towns “are confronted with the same problems as towns of larger populations.” The parts of the. act, that is, the part relating to population, and the rate provision, being independent and separable, no reason *205 existed, in our opinion, wliy the Legislature should have made the amendment as to population dependent upon the change in the rate provision.
In the original opinion, we stated in effect that appellee was not permitted to charge and collect for its service in Farmersville any other, either higher or lower, rates than those fixed by the ordinance. This statement is broader than should have been made, as the ordinance authorizes the collection of higher but not lower rates than the miniinum prescribed.; therefore the opinion will be corrected, to conform to the idea that, while appel-lee may charge higher, it is not permitted to charge lower, rates than the minimum fixed by the ordinance adopted by the governing body of appellant.
In an addendum to its motion for rehearing, appellee requests additional findings in keeping with and embracing the facts found by the trial court, in paragraphs 7 and 11 of its findings. While we do not deem these material, yet appellee does and is entitled to same, as follows: “(7) The public square of the City of Farmersville is 99 feet wide by 400 feet long, with business houses, approximately forty, located around same and upon streets, leading in various directions therefrom. Upon the commencement of operations of the municipal plant the city agreed with the owners of business houses that if they would pay for and install 25 watt globes along under the awnings in front of their places of business from a foot eighteen inches back from the front of the awning and wire the same, that the city would furnish these customers with free electricity to light up the lights under the awnings, if they would become customers of the city’s municipal plant, and various business men availed themselves of this opportunity, until at this time there are between fifty and sixty business customers of the city plant enjoying the privilege, while the power company had only six or seven business customers, but free current was not and is not furnished now to the business houses who are customers of the power company.” “(11) That the municipal plant, since shortly after it commenced operations, has had two hundred and seventy-five (275) customers, or more, and their income has been sufficient to pay all operating expenses, and produce a net income of more than sufficient to pay off and discharge the monthly payments due upon the purchase price of the municipal plant, and some payments have been paid prior to their due date. That the power company has had approximately 285 customers and their income has been sufficient to pay their operating expe'ns-es and create some small surplus.”
After due consideration, the motion of ap-pellee for rehearing is overruled, and its request for additional findings is granted.