City of Richmond v. Richmond Natural Gas Co.
| Decision Date | 01 February 1907 |
| Docket Number | 20,792 |
| Citation | 79 N.E. 1031,168 Ind. 82 |
| Parties | City of Richmond v. Richmond Natural Gas Company |
| Court | Indiana Supreme Court |
From Wayne Circuit Court; J. W. Macy, Special Judge.
Suit by the City of Richmond against the Richmond Natural Gas Company. From a decree for defendant, plaintiff appeals.
Affirmed.
A. M Gardner and William H. Kelley, for appellant.
Robbins & Starr, for appellee.
Appellant brought this suit for an injunction, alleging, in substance that appellee is a corporation organized under the laws of this State for the purpose of supplying appellant and its inhabitants with natural gas, and that, with the permission and consent of the common council of the city of Richmond, it laid mains and pipes in the streets and alleys of said city for that purpose; that the common council of said city on October 16, 1905, duly passed and adopted an ordinance, sections one and three of which read as follows:
That said ordinance was duly published, and went into effect October 31, 1905, and ever since has been, and still is, in full force; that at the time of the passage and taking effect of said ordinance appellee was, and still is, occupying the streets, alleys and public grounds of appellant city, by and with the consent of its common council, for the purpose of supplying said city and its inhabitants with natural gas; that, in disregard of section one of said ordinance, appellee is threatening to, and if not restrained will, charge its patrons within said city at the rate of fifty cents per 1,000 cubic feet for gas so furnished and supplied. Appellee's demurrer to the complaint, on the ground that the facts averred were insufficient to constitute a cause of action, was sustained, and, appellant declining to amend, appellee recovered judgment for costs. This ruling is assigned as error.
The sufficiency of the complaint depends upon the validity of the ordinance passed and approved October 16, 1905.
The terms and conditions upon which appellee is occupying the streets and alleys of appellant city are not disclosed by the complaint. It is averred that such occupancy was begun, and the mains and pipes laid, "with the permission and consent of the common council." For the purposes of this case, we need not determine whether the granting of such permission and the construction of the plant in pursuance thereof created a contract, but content ourselves with a reference to the law holding that, where a franchise to supply gas is granted, accepted and acted upon, without restriction as to prices, cities incorporated under the general law of this State had no authority prior to 1905, by subsequent ordinance or action, to impose additional provisions regulating prices to be charged for gas furnished under the original franchise. City of Rushville v Rushville Nat. Gas Co. (1905), 164 Ind. 162, 73 N.E. 87; City of Noblesville v. Noblesville Gas, etc., Co. (1901), 157 Ind. 162, 60 N.E. 1032; Lewisville Nat. Gas Co. v. State, ex rel. (1893), 135 Ind. 49, 34 N.E. 702, 21 L. R. A. 734. The general assembly of 1905, in revising the statutes governing cities and towns, conferred upon cities the following, among other powers: "To license and regulate the supply, distribution and consumption of...
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