Lewisville Natural Gas Company v. State ex rel. Reynolds

• Decision Date: 19 September 1893
• Docket Number: 16,819
• Citation: 34 N.E. 702,135 Ind. 49
• Parties: Lewisville Natural Gas Company v. State, ex rel. Reynolds
• Court: Indiana Supreme Court

34 N.E. 702

135 Ind. 49

Lewisville Natural Gas Company v. State, ex rel. Reynolds

No. 16,819

Supreme Court of Indiana

September 19, 1893

From the Henry Circuit Court.

Judgment reversed, with directions to the circuit court to sustain the demurrer to the complaint in this cause.

J. M Morris and M. E. Forkner, for appellant.

A. G Smith, Attorney-General, B. K. Elliott, W. F. Elliott, J Brown and W. A. Brown, for appellee.

OPINION

Coffey, J.

The appellant is a corporation duly organized under the laws of this State, and was, at the time of the commencement of this suit, and had been for a long time prior thereto, engaged in the business of supplying natural gas to the citizens of Lewisville, Indiana, for use as fuel and lights.

On the 15th day of August, 1892, the town of Lewisville, which is an incorporated town, by its trustees, passed an ordinance, by the terms of which the appellant was prohibited from charging a greater sum than one dollar per month for furnishing natural gas for a cooking stove during the months of May, June, July, August, and September. Prior to that time, the appellant had been supplying the relator with gas, to be used in his cook stove, but, upon the refusal of the relator to pay the charges fixed by the appellant, it refused to supply him.

He tendered it the sum fixed by the ordinance, and demanded that the appellant should furnish him with gas at the price fixed, but the company refused to do so, and thereupon this suit was instituted to compel the appellant, by mandamus, to furnish gas at the price fixed by the ordinance of the town.

The relator having succeeded in the court below, this appeal is prosecuted for the purpose of reversing the judgment of the circuit court on account of alleged errors in the proceedings in that court.

The controlling question in the case relates to the power of the town to fix, by ordinance, the price at which the appellant shall supply the citizens with natural gas.

It is contended by the relator:

First. That the town possesses such power at common law, and

Second. That such power is conferred by the statutes of the State; while the appellant contends that no such power exists, either under the rules of the common law, or the statutes of the State of Indiana.

It is safe to assert, we think, that in this State municipal corporations possess no power except such as is conferred upon them by statute, either in express terms or by necessary implication.

Judge Dillon, in his work on Municipal Corporations (4th ed.), section 89, says: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others:

"First. Those granted in express words.

"Second. Those necessarily or fairly implied in or incident to the powers expressly granted.

"Third. Those essential to the declared objects and purposes of the corporation--not simply convenient, but indispensable.

"Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied."

In the case of the City of Anderson v. O'Conner, 98 Ind. 168, it was said by this court: "Doubtless, it is true, as appellant's counsel claim, that a municipal corporation can only exercise such powers as are conferred upon it by the laws under which it is incorporated. But where the power to do an act is conferred upon the city, and the law is silent as to the manner of doing such act, the city authorities are necessarily clothed with a reasonable discretion in determining how such act shall be done." See, also, Thornton's Indiana Municipal Law, 112, note 3, for a collection of the authorities upon the subject now under discussion.

It is not contended that the general statute upon the subject of incorporating towns confers upon towns, when incorporated the power to regulate the price at which natural gas shall be sold. It is contended, however, that such power is conferred by an act of the General Assembly, approved March 7, 1887. Elliott's Supp., ...