OPINION
McCabe, J.
The
appellant sued the appellees for an injunction. Since the
submission of this cause to this court the appellee
McDonald, has died, as is suggested by the appellees,
counsel.
Under
such circumstances the statute provides that the
"judgment shall be rendered as at the term at which the
submission was made without any change of parties." 1
Burns R. S. 1894, section 675; R. S. 1881, section 663.
The
following judgment will therefore be entered as of the date of the submission, to wit, November 13,
1893. Issues were formed upon the complaint and the venue
having been changed from the Floyd Circuit Court, where the
action was begun, to the Harrison Circuit Court, a trial of
such issues in that court without a jury resulted in a
special finding of the facts upon which conclusions of law
were stated by the court favorable to the appellees. The
appellees had judgment pursuant to the conclusions of law.
The
conclusions of law and the action of the circuit court in
overruling the appellant's motion for a new trial are
assigned for and as the only errors.
The
appellant has waived the alleged error in overruling the
motion for a new trial by failing to point out the same in
its brief.
The
facts found necessary to a determination of the questions
presented by the conclusions of law are substantially as
follows: 1. That appellant is a corporation under the laws of
Indiana, located within the limits of the appellee, the
incorporated city of New Albany. 2. That said city is a
municipal corporation, and appellee McDonald was its mayor at
the institution of the suit. 3. That on March 22, 1870, said
city, by its common council, adopted and passed the following
ordinance, to wit:
"Section
1. It is ordained by the common council of the city of New
Albany, That Washington C. DePauw, Nelson Fordice, and George
V. Howk, and their associates, successors and assigns are
hereby authorized to form a gas company, under the corporate
name of 'The Gas Light and Coke Company of New
Albany,' and to establish gas works for the lighting of
said city with gas, and to that end they and their
associates, successors and assigns, under the corporate name,
are hereby invested with the exclusive right and privilege,
for the full term of twenty years from and
after the 7th day of April, 1871, of using the streets,
alleys, lanes, highways, and public grounds, within the
present or future corporate limits of said city of New
Albany, for the purpose of laying down therein the proper and
necessary pipes for the conveyance of gas in
and through said city, for the use of said city and its
inhabitants: Provided, That the said company, to be
formed as aforesaid, by its board of directors, shall agree
and bind herself by resolution, a copy of which shall be
certified to the mayor of said city within ninety days
hereafter, to accept the terms and conditions prescribed in
this ordinance: And, provided, further, That the
said city of New Albany, in her corporate capacity, at any
time before said 7th day of April, A. D. 1871, if she shall
elect and determine to so do, shall and may become a
stockholder in the said gas company to be formed as
aforesaid, to an amount not exceeding one-third of the whole
amount of the capital stock of said gas company, and the
stock which may be taken in pursuance of this proviso shall
be paid for by said city of New Albany in the manner
hereinafter provided.
"Section
2. The price at which the said gas company to be formed as
aforesaid shall furnish the city and its inhabitants with gas
shall not exceed three dollars for each thousand (1,000)
cubic feet, exclusive of government tax, provided that city
orders shall be received at par in payment for all gas to be
furnished the city by said company, and that the common
council of said city shall have the right at all times to
regulate the time of lighting and extinguishing the street
lamps, and determining the quantity of gas to be consumed by
the city.
* * * *
"Section
7. The said gas company, to be formed as aforesaid, shall
furnish good, pure gas for all the public lamps of said city
of New Albany, and light and extinguish the
same and keep the same in good order and repair at and for
the price and sum of $ 18 per annum, exclusive of the
government tax, for each of the said lamps. The lamp posts
and lamps for the public lamps shall be furnished by and at
the expense of said city of New Albany." * * * *
4th.
That afterward the terms and conditions of said ordinance
were duly accepted by the board of directors of said company,
by resolution duly passed by said board, which was certified
to the mayor of said city on the 21st day of May, 1870, and
within ninety days after the 22d day of March, 1870, the date
of the passage and adoption of said ordinance.
5th.
That on the 19th day of March, 1888, the common council of
the city of New Albany, at a regular meeting had and held,
etc., * * the following ordinance was passed and adopted, to
wit:
"An
ordinance supplemental to an ordinance entitled 'an
ordinance to provide for the establishment of gas works,
etc.,' passed by the common council of the city of New
Albany, March 22, 1870.
"Section
1. Be it ordained by the common council of the city of New
Albany, that all the rights and privileges, duties, and
obligations held and enjoyed and owing by the gas light and
coke company under and by virtue of an ordinance of the said
common council passed March 22, 1870, and under and by virtue
of the contract and agreement now and heretofore subsisting
between the said gas-light and coke company of New Albany and
the city of New Albany, subject to the modifications and
alterations hereinafter mentioned, shall be, and the same are
hereby extended and continued in force for the term of
twenty-three years from and after the 7th day of April, 1888.
"Section
2. That in consideration of the extension of
the term of said ordinance contract and agreement, the price
at which gas is to be furnished by said company to consumers
thereof shall not exceed $ 2.10 per 1,000 cubic feet, with a
discount of ten cents per 1,000 cubic feet if paid within the
first ten days of the month following after the same becomes
due, making the net price $ 2 per 1,000 cubic feet to all
consumers of 5,000 cubic feet; the price of gas shall not
exceed $ 1.85 per 1,000 cubic feet, with a like discount of
ten cents per 1,000 cubic feet if paid within the first ten
days of the month following after the same becomes due,
making the net price to such consumers $ 1.75 per 1,000 cubic
feet to all consumers of 10,000 cubic feet and over; the
price of gas shall not exceed $ 1.65 per 1,000 cubic feet if
paid within the first ten days of the month following after
the same becomes due, making the net price to consumers last
named $ 1.50 per 1,000 cubic feet, exclusive of any
government tax; the price of gas furnished to the city of New
Albany by meter shall not exceed $ 1.50 per 1,000 cubic feet,
exclusive of government tax: Provided, That all gas
furnished the city of New Albany under this ordinance the
cost thereof may be paid in city orders at par, but all bills
due from said city to said company shall be paid either
monthly or quarterly, as the common council may elect.
* * * *
"Section
6. The said gas company shall furnish good and pure gas for
the public lamps of said city, and light and extinguish the
same and keep the same in good order and repair for the price
and sum of $ 18 per annum, exclusive of any government tax.
The said lamp posts and lamps shall be furnished by and at
the expense of said city, and the said city agrees to keep in
service all public lamps heretofore maintained and hereafter
ordered under this ordinance, except the same
is removed by agreement of said council and said company.
"Section
7. That if, at any time after the passage of this ordinance,
the said common council should determine that electric lights
should be substituted for gas lights upon the streets of said
city, or any part thereof, the said gas company shall make
such substitution of such electric light instead of as many
public street lamps as may be agreed upon between the said
city and said gas company,
the price at which said electric lights shall be furnished to
be fixed by an equitable agreement between the said common
council and said gas company.
* * * *
"Section
9. That all ordinances and parts of ordinances now existing
and in conflict with the terms of this ordinance are hereby
repealed."
Section
10 provides that said ordinance is to take effect on the
filing with the city clerk of a certified copy of the
resolution of the board of directors of said gas company
accepting the terms and conditions of the ordinance, and
thereupon it is made the duty of the mayor to publish the
ordinance and resolution of acceptance in the same manner
that other ordinances are published. Such resolution of
acceptance was filed with the city clerk.
7th.
That on December 21, 1891, the common council of said city
repealed section 6 of the ordinance passed March 19, 1888
supplemental to the ordinance above mentioned, passed March
22, 1870, providing for the establishment of gas-works. And
the second section of said repealing ordinance was in the
form of a resolution of said common council, to the effect
that all gas lamps used for street lighting within the
territory bounded on the south by the south line of Main or
High street, on the east by the east line of Upper Fourth...
