At the close of all the evidence, the court instructed the jury upon the issue submitted, to wit: “Are the rates fixed in this cause by the Corporation Commission,, regulating the price of water supply, just and reasonable,” to answer the same “Tes.” Under this instruction, the jury so answered the issue. Appellant, city of Henderson, excepted to this instruction and assigns same as error.
Petitioner is a public-service corporation, and the Corporation Commission is vested by law with full power and authority to fix and establish any and all rates which it may charge for services rendered by it. O. S., 2783. When the Corporation Commission is called upon, by either the corporation or those to whom the services are rendered, under its franchise, to exercise this power and authority, it is its duty to fix and establish just and reasonable rates to be charged for such service. The rates or charges, established by the commission, shall be deemed just and reasonable, C. S., 1067. The burden was therefore upon appellant to offer evidence sufficient for the jury to find upon appeal and under the instructions of the court, that the schedule of rates, established by the commission, in this case, were not just and reasonable to both petitioner and respondent.
Upon a careful consideration of the evidence, as set out in the statement of the case on appeal, we must sustain the instruction of the court. The evidence chiefly relied upon by appellant is the testimony of Mr. W. A. Hunt. This witness is a member of the city council, and is by profession a banker. He was one of the receivers of petitioner, appointed by the court’ on 13 October, 1921, and discharged when.its property was restored to appellee by the court on 3 July, 1922. He testified that the books of the water company showed that its property cost $162,000; that allowing 1% a year during the life of the property to cover depreciation, he was of the opinion that the present fair value of the property was $115,000. He was also of the opinion that the *73property would pay a fair return under proper management at tbe rates allowed under tbe franchise. He expressed tbe opinion tbat these rates were reasonable and tbat be was qualified to so state. He considered tbe ratio of expenses to income too high. He bad no information as to tbe cost of additions to tbe property since be was discharged as receiver in 1922, but knows tbat considerable additions have been made under tbe orders of tbe city. He was further of opinion tbat tbe company employed more clerks in tbe office than was necessary for tbe conduct of its business.
There was evidence also tbat tbe plant was sold in 1894 under a decree of foreclosure and conveyed to a trustee for creditors by deed, in which tbe recited consideration was $32,101; tbat tbe income for 1920 was $27,385.94, and tbat tbe value as assessed for taxation in 1920 was $46,000; tbe tax valuation for 1924 was $75,000. During a period of five years — from 1917 to 1922 — tbe rates charged were less than tbe maximum fixed by tbe contract. Several customers of tbe water company testified as to tbe increase in amounts paid by them under tbe rates fixed by tbe Corporation Commission. One of these customers operated a public swimming pool, another was tbe manager of a hotel, and another of tbe American Cotton Oil Company.
There was no evidence offered by appellant from which tbe jury could have found tbe facts which, under C. S., 1068, tbe Corporation Commission is required to consider in fixing maximum rates to be charged by corporations subject to its power and authority as to these matters. Tbe burden was upon appellant and, therefore, tbe assignment of error cannot be sustained. There was evidence offered by appellee sufficient to sustain tbe rates established by tbe Corporation Commission.
At tbe beginning of tbe trial, and again at tbe close of all tbe evi-. dence, tbe city of Henderson moved tbe court to bold tbat tbe rates fixed by tbe contract between tbe city of Henderson and tbe Henderson Water Company were binding upon tbe company, and tbat neither tbe Corporation Commission nor tbe court .bad power or authority to change these rates within forty years, tbe life of tbe contract. Tbe motion was denied; appellant excepted and assigns same as error.
The ruling of tbe court is sustained by tbe decision of this Court in Griffin v. Water Co., 122 N. C., 210; In re Utilities Co., 179 N. C., 151; Corporation Commission v. Mfg. Co., 185 N. C., 17.
Tbe power conferred by its charter upon tbe city of Henderson “to provide water and lights and to contract for same, provide for cleansing and repairing tbe streets, regulate tbe market, take proper means to prevent and extinguish fires,” is subject to tbe police power of tbe State, with respect to rates to be charged under such contracts as tbe city may make under its charter by a public-service corporation.. *74Constitution of N. C., Art. VII, sec. 12, sec. 14; Art. VIII, sec. 1. This assignment of error cannot be sustained.
Tbe city of Henderson moved the court, in view of its ruling that the Corporation Commission had the power to change the rates, to hold that the change of the rates in the exercise of this power upon the application of the water company and the charging for service provided by the contract at the rates established by the commission in excess of the contract rates, was such a material change and alteration of the contract or franchise as to release the city of Henderson from the obligation of the contract. Defendant excepted to the refusal to so hold and assigns same as error.
This proposition of law is not material to this controversy and is not presented on the record. Ve, therefore, do not now decide the question presented by this assignment óf error.
Ve have considered the assignments of error based upon exceptions to rulings upon evidence. We find no error in such rulings and do not deem it necessary to discuss them. Upon consideration of each of the assignments of error,\ we affirm the judgment. There is
No error.
CuaeKSON, J., dissenting.