Citizens' Natural Gas & Min. Co.

• Decision Date: 12 April 1888
• Court: Indiana Supreme Court
• Parties: Citizens' Natural Gas & Min. Co. et al. v. Town of Elwood.

114 Ind. 332

16 N.E. 624

Citizens' Natural Gas & Min. Co. et al.

v.Town of Elwood.

Supreme Court of Indiana.

April 12, 1888.

Appeal from circuit court, Madison county; D. Moss, Judge.

E. B. Goodykoontz and George M. Ballard, for appellant. Robinson & Lovett, for appellee.

Elliott, J.

The complaint of the appellee alleges that it is an incorporated town; that the appellant is a corporation organized under the laws of the state; that on the 18th of July, 1887, the appellee entered into an agreement with the Elwood Natural Gas & Oil Company, whereby it granted t that company the exclusive privilege of laying mains and pipes in the streets and alleys of the town for the purpose of supplying the town and its citizens with natural gas; that, in consideration of this grant, the Elwood Natural Gas & Oil Company agreed to furnish natural gas to each alternate street-lamp free, and also to furnish gas for lights in front of the church buildings of the town without charge; that the Elwood Natural Gas & Oil Company performed its part of the contract; that the Citizens' Natural Gas & Mining Company has scattered mains and pipes along the streets of the town, and is digging trenches for the purpose of laying its mains and pipes. It is also alleged that the Citizens' Natural Gas & Mining Company has not obtained permission or license to lay its pipes in the streets of the town. The relief prayed is an injunction restraining the Citizens' Company from laying its pipes in the corporate highways.

The town trustees had no authority to grant the Elwood Natural Gas & Oil Company the exclusive right to use the streets of the town. A municipal corporation cannot grant to any fuel or gas supply company a monopoly of its streets. There is nothing in the nature or business of such a company making its uses of the streets necessarily exclusive. The spirit and policy of the law forbids municipal corporations from creating monopolies by favoring one corporation to the exclusion of others. It is probably true that a municipal corporation may make a contract with a gas company for supplying light to the public lamps for a limited time, even though it be for a number of years. On this point, however, there is some conflict; but there is no conflict on the proposition that, in the absence of express legislative authority, a municipal corporation cannot grant to any corporation the exclusive privilege of using its streets. There is, we know, much conflict among the authorities upon the question of the power of the legislature to grant an exclusive right to a gas company to use the highways of a municipal corporation, and, under our constitution, it is very doubtful whether the legislature possesses such authority. But we are not here concerned with that phase of the question, since the legislature has not attempted to vest an exclusive privilege in any corporation. Upon the direct question before us there is a remarkableuniformity in the decisions of the courts. City of Indianapolis v. Gas-Light Co., 66 Ind. 400;Norwich v. Gas Co., 25 Conn. 19; State v. Gas & Coke Co., 18 Ohio St. 293;State v. Gas Co., 34 Ohio St. 581;Memphis v. Water Co., 5 Heisk. 525;State v. Gas-Light Co., 29 Wis. 454;Garrison v. City, 7 Biss. 486;Canal Co. v. St. Louis, 2 Dill. 84;City v. Water Co., 4 S. W. Rep. 143;Gas-Light Co. v. Middletown, 59 N. Y. 231;Davenport v. Kleinschmidt, 13 Pac. Rep. 249;Appeal of Gas Co., 4 Atl. Rep. 733; 2 Dill. Mun. Corp. (3d Ed.) § 693. We conclude, without hesitation, that the town of Elwood has no right to an injunction, upon the ground that its board of trustees has assumed to confer upon the Elwood Natural Gas & Oil Company the exclusive right to use the highways of the town.

If, therefore, the complaint can be sustained at all. it must be upon the ground that the Citizens' Natural Gas & Mining Company is attempting to excavate trenches and lay pipes in the streets and alleys of the town without the license of the municipal authorities. On this ground the complaint may be upheld. The presumption is, until the contrary appears, that the corporate officers have done their duty. They are sworn public officers, and their acts are presumed to be rightful until the contrary is shown. It must therefore be assumed that they have done their duty, unless the fact that they have granted an exclusive privilege, and are endeavoring to protect the corporation to whom it was granted in the exercise of that privilege, countervails the presumption in their favor. This fact does overthrow this presumption, for it appears that they have violated the law, and have invoked the aid of the courts to secure to the corporation illegally favored the fruits of their unlawful act. But, although the presumption is overthrown, we do not think that the Citizens' Natural Gas & Mining Company has a right to use the streets of the town without the license of its officers, granted in the mode prescribed by the law of the land. The town officers, although they have violated the law, have not lost their authority over the corporate highways. That authority is one which they can neither delegate nor surrender. They must exercise it, and exercise it in a lawful mode. We conclude that, although the town officers have violated the law, that the Citizens' Natural Gas & Mining Company cannot take advantage of the wrong of the corporate officers, and use the streets without their license. The control of the streets remains in the municipal authorities, notwithstanding their violation of law; and no one can dig trenches and lay pipes in those streets without the permission of the proper officers. Com. v. Passenger Ry., 52 Pa. St. 517; Gas-Light Co. v. Gas Co., 2 Atl. Rep. 922; 2 Dill. Mun. Corp. § 680. We do not hold that a municipal corporation may arbitrarily exclude some gas corporations, and suffer others to occupy its streets; but we do hold that no corporation can, at its own pleasure, enter and occupy the streets of a town or city. Within reasonable limits, the municipal officers have authority to regulate, by general ordinances, the use and occupancy of its streets. The power over streets, vested by our statutes in municipal corporations, is very broad and comprehensive. Language of wider scope than that employed by the legislature in conferring authority over streets and alleys upon our towns and cities could hardly be chosen, and within the extensive power conferred is included the authority to regulate, in a legislative mode, the use and occupancy of corporate highways by natural gas companies. Wood v. Mears, 12 Ind. 515; 2 Dill. Mun. Corp. (3d Ed.) § 680. The latest legislative expression, found in the act of 1887, is of itself sufficient to vest this authority in the municipal corporations of the state. That act provides “that the board of trustees of towns, and the common councils of cities, in this state, shall have power to provide, by ordinance, reasonable regulations for the safe supply, distribution, and consumption of natural gas within the respective limits of such towns and cities, and to require persons or companies to whom the privilege of using the streets and alleys of such towns and cities is granted for the supply and distribution of such gas to pay a reasonable license for such franchise and privilege.” Acts 1887, p. 36. The fact that the town authorities assumed to grant the Elwood Natural Gas & Oil Company the exclusive privilege to use its streets and alleys does not aid the complaint. The town is not embarrassed by that grant, for it is void....