State ex rel. City of Indianapolis v. Indianapolis Gas Company
| Decision Date | 31 May 1904 |
| Docket Number | 19,690 |
| Citation | 71 N.E. 139,163 Ind. 48 |
| Parties | State, ex rel. City of Indianapolis, v. Indianapolis Gas Company |
| Court | Indiana Supreme Court |
From Superior Court of Marion County (59,594); John L. McMaster Judge.
Action by the State, on the relation of the city of Indianapolis against the Indianapolis Gas Company. From a judgment sustaining a demurrer to the alternative writ the relator appeals.
Appeal dismissed.
John W Kern, J. E. Bell and F. A. Joss, for appellant.
Ferdinand Winter and Clarence Winter, for appellee.
In November, 1899, the State, on the relation of the city of Indianapolis, instituted this action by petition, whereby it sought to obtain a writ of mandamus to coerce the defendant gas company to sink without delay twenty-five additional natural gas wells in the gas-producing territory controlled by said gas company. On filing the petition the lower court caused an alternative writ to issue, whereby the defendant gas company was ordered and commanded to proceed as follows "Now therefore, you are hereby commanded to proceed without delay to sink twenty-five additional natural gas wells in the gas-producing territory possessed and controlled by you in the natural gas field of Indiana, and to lay an additional line of natural gas mains, not less than twelve inches in diameter, from such wells, and connected with the gas-producing wells you already own, to the city of Indianapolis, in such manner as to conduct the natural gas produced by you from said wells into your system of natural gas pipes and mains in said city, or, in default thereof, that you appear before said court at the court-house, in Indianapolis, on the 21st day of November, 1899, at 9 o'clock a. m., to show cause, if any you have, why the same should not be done; and have you then and there this writ." On the day fixed for the return the defendant appeared and demurred to the alternative writ on the grounds (1) that the relator, the city of Indianapolis, had not the legal capacity to sue; (2) that the writ did not state facts sufficient to constitute a cause of action. The demurrer was sustained to which the plaintiff excepted, and, on declining to plead further, judgment was rendered on demurrer.
The only error assigned and relied upon for reversal is the ruling of the court in sustaining the demurrer to the alternative writ.
The petition and alternative writ each alleges that appellant gas company accepted the provisions of an ordinance passed by the city of Indianapolis in 1887, whereby it acquired the right to use the streets of said city for the purpose of supplying the inhabitants thereof with natural gas as a fuel. It is further alleged, among other things, that appellee, up to the year 1896, furnished an adequate supply of natural gas to the people of said city; that since that time the population of the city has greatly increased, and therefore the consumers of natural gas have proportionately increased, but appellee has from that year forward failed and refused...
To continue reading
Request your trial