Clough v. North Central Gas Co.
| Decision Date | 26 November 1948 |
| Docket Number | 32469. |
| Citation | 34 N.W.2d 862,150 Neb. 418 |
| Parties | CLOUGH v. NORTH CENTRAL GAS CO. et al. |
| Court | Nebraska Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. When a city of the second class by ordinance grants to a gas company the right to supply gas to its inhabitants and to use the streets, alleys, and public ways of such city, the ordinance is a franchise, and after its acceptance by the company, or by performance of the company in compliance therewith, it becomes a contract between the city and the company.
2. Proof of the publication of an ordinance sworn to by the publisher of the newspaper in which such publication was printed, where such ordinance has been lost or destroyed constitutes sufficient secondary evidence to prove the existence and publication of the ordinance.
3. Where the nonexistence of an ordinance is proved by one who has made search therefor, and a copy of the original ordinance is found among the city records, such copy, when it is shown to have been published as required by law, is admissible with reference to the contents of the original ordinance as secondary evidence.
4. Natural gas belongs to the company which dispenses it until it is sold through the meter to the consumer.
5. Section 17-505, R.S.1943, contemplates that, in addition to the special powers conferred upon a city of the second class it shall have the power to make all such ordinances not inconsistent with the laws of the state as may be expedient to maintaining the peace, good government and welfare of such city in its trade, commerce, and manufactories.
6. Every legislative act comes before this court surrounded with the presumption of constitutionality and this presumption continues until the act under review clearly appears to contravene some provision of the Constitution.
7. Ordinances of cities of the second class are presumed to be valid, and the burden is upon the person attacking it to show that, having regard to the facts as may be disclosed with reference to it, such regulation so imposed is so unreasonable and arbitrary as to amount to depriving such person of property without due process of law.
8. In the exercise of police power delegated by the state legislature to a city of the second class, the municipal legislature, within constitutional limits, is the sole judge as to what laws shall be enacted for the welfare of the inhabitants of such city, and as to when and how the police power shall be exercised.
9. In testing police power regulations, the court should inquire whether they have some relation to the public health, safety, or welfare, and whether such is in fact the end sought to be attained.
10. A corporation like a gas company, dependent for the conduct of its business upon a license to use in part the streets, alleys, and public ways of a city of the second class, which are acquired avowedly for public use, is affected with a public interest for the reason that its business is public.
11. A city of the second class, as a means of protecting its inhabitants, may establish and enforce regulations that are not inconsistent with the essential rights granted by a franchise to a gas company.
12. A city of the second class may enact ordinances to protect the public from the danagers resulting from the use of natural gas by imposing certain obligations upon the company furnishing such product.
13. The power to regulate the use of streets, alleys, and public places of a city of the second class by a gas company is not exhausted by the regulations prescribed by the municipal authorities at the time of granting the consent to use such streets, alleys, and public ways. It is a continuing power, and cannot be bargained away or otherwise parted with.
14. The prohibition contained in constitutional provisions against impairing the obligations of contracts is not an absolute one and is not to be read with literal exactness like a mathematical formula, and does not prevent a city of the second class from imposing regulations governing a gas company furnishing its product to the city's inhabitants where such regulation is not unreasonable and arbitrary and does not take such company's property without due process of law.
15. A legal duty of a gas company as to third persons in reference to the escape of gas from service lines owned and controlled by others on private property, and leading from the company's pipes in the street to its meter in the consumer's building, which pipes have been properly installed and tested, determined to be safe for use, and actually safely used for some time, does not extend to thereafter making inspection of said service pipes, unless the company has knowledge of a probable defective condition in such pipes, or has knowledge of circumstances rendering it probable that gas is escaping therefrom, or unless the company is bound by contract, franchise, or custom to make such inspection.
16. Where a public utility company engaged in the business of furnishing gas to its customers knows or should know that a service line owned by a customer is corroded to such an extent as to permit gas to escape, it is its duty either to cause the service line to be repaired by the customer, or to have the gas shut off at the street where the main is that furnishes the gas to the customer, in order to avoid the danger which might result.
17. Where the evidence discloses that the duly appointed agent of a gas company was charged with knowledge that gas transported through its pipes into a service line was leaking, and the evidence shows such fact to be true, the question as to whether or not the gas company had exercised such a degree of care and caution as was commensurate with the known danger of natural gas constitutes an issue of fact which under proper instructions should be submitted to a jury.
18. Testimony referring to prior gas leaks and repairs which appears to be introduced solely to establish that the gas company employees who performed the work in such respect were its authorized agents to receive notice of such defects and to make repairs for the company, and where it is apparent that such evidence is not offered to show prior negligence of the company, is properly admissible in evidence to show that the company had notice of leakage of gas in its consumer's lines.
Mothersead & Wright and R. G. Simmons, Jr., all of Scottsbluff, for appellant.
Atkins & Lyman and True R. Ferguson, all of Scottsbluff, for appellees.
Heard before PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is an action for damages for personal injury incurred by the plaintiff and the loss of personal effects alleged to have been caused by the negligence of the defendant in failing to properly service and maintain natural gas lines in the city of Minatare, a city of the second class. The case was submitted to the jury, resulting in a verdict for the plaintiff. Upon the overruling of motion for new trial defendant appeals.
For convenience the appellant will hereinafter be referred to as the gas company, and appellee will retain the original designation of plaintiff.
On March 10 1931, the proper officials of the city of Minatare passed Ordinance No. 110 granting the gas company the right and privilege to conduct, maintain, and operate in the public streets, alleys, and public ways, a pipe line, or pipe lines, for the conveyance and transmission, supply and distribution of natural gas in the city. Section 8 of the ordinance provides: 'The opening of any and all streets, lanes and alleys and public places by the grantee, its agents or employees and the laying and erecting by them of any and all mains, pipes or other fixtures and appliances, under and by virtue of this ordinance shall at all times be subject to and under the rules, regulations and ordinances of said City and all streets, lanes, alleys and public places opened under and pursuant thereto shall be restored within a reasonable time thereafter to as good condition as is practicable * * *.'
Section 10 provides that power and permission is granted the gas company to tap and make connections with said pipe line, or pipe lines, for the purpose of selling, furnishing, and distributing gas to the consumers within the city, and to lay and construct such connecting and distributing pipes in and under the streets, alleys, and public ways within the corporate limits of the city.
The ordinance provided that upon the acceptance by the gas company within 30 days after the passage thereof, the ordinance would be in full force and effect. The gas company accepted the grant and the franchise.
Ordinance No. 110 constitutes a contract between the city of Minatare and the defendant gas company. See City of University Place v. Lincoln Gas & Electric Light Co., 109 Neb. 370, 191 N.W. 432. The authorities are practically united that ordinarily a grant to a gas company of the right to supply gas and to use the streets is a franchise and, after its acceptance and performance, becomes a contract. See 38 C.J.S., Gas, § 11, p. 633.
Ordinance No 114 was passed and came into force and effect on July 9, 1931. This ordinance related to natural gas and was for the purpose of governing the installation of gas fittings; to provide for the inspection thereof; and to provide for the regulation and operation of natural gas service to citizens and other persons within the corporate limits of the city. Section 16 thereof provided: 'The grantee of any natural gas franchise by said city shall furnish and install for its customers reliable meters and shall keep in repair and maintain all pipe-lines up to and including the meters without cost to the customer; all meters used by grantee shall at all reasonable times be...
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