Natural Gas Products Co. v. Thurman, Judge

• Decision Date: 17 October 1924
• Citation: 205 Ky. 100
• Parties: Natural Gas Products Company v. I. H. Thurman, Judge.
• Court: Kentucky Court of Appeals

205 Ky. 100

Natural Gas Products Company v. I. H. Thurman, Judge.

Court of Appeals of Kentucky.

Decided October 17, 1924.

Motion for Writ of Prohibition.

W. T. FOWLER and O'REAR, FOWLER & WALLACE for appellant.

FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Sustaining the motion and granting the writ of prohibition.

The plaintiff, Natural Gas Products Company, is a foreign corporation and has constructed an extensive plant in Green county, Kentucky, with machinery necessary for manufacturing out of natural gas a commercial product known as "carbon black," which product, as shown by the record, is extensively used in the manufacture of a number of other useful commercial articles; and it further appears that in the manufacture of such other products there is no effectual substitute for "carbon black." The grand jury of Green county returned 24 indictments against plaintiff charging it with violating section 1321 of the statutes by operating its machinery and prosecuting its business on Sunday, the Sabbath day. The punishment for a violation of the section is a fine of not less than two nor more than fifty dollars, which is not sufficient to authorize an appeal to this court, even though the maximum fine be assessed. There was a trial under one of the indictments and defendant pleaded not guilty (though admitted the operation of its plant on Sunday), on the ground that the work in which it was engaged, and for the doing of which on Sunday it was indicted, was a "work of necessity," and rendered it not amenable to the statute. The court ruled that, in as much as the defendant admitted prosecuting its business on Sunday, the burden was on it to excuse itself on the ground of necessity, to which ruling it excepted and then introduced its testimony, at the close of which the court adjudged it guilty and assessed the maximum fine of fifty dollars; whereupon it filed this original petition in this court against defendant, I. H. Thurman, the duly and regularly elected and acting judge of the Green circuit court, praying that he be prohibited from trying and convicting it on the other twenty-three indictments, which it alleged he had announced that he intended to do and to inflict the maximum fine in each case. The petition further alleged the extensive cost of the plant installed by defendant and that in the manufacture of "carbon black," on account of the delicacy of the product and at least some of the required machinery, it was imperatively necessary that the plant should be kept in continuous operation; that briefly stated the product of "carbon black" corresponded somewhat to the smoke of a lamp upon glass and which was produced by the burning of the natural gas with the smoke accumulating on a delicate steel plate on which it would accumulate and later scraped therefrom into a revolving screw or some receptacle in which it would be conveyed to a place for preparing it for the market, and that to remove the fire or stop the burning of the gas would cause the accumulated black on the steel plate to harden and crack and become brittle and gritty, which would result in the total loss of all of that substance accumulated on the steel plate at the time of shutting down of operations; and, in addition, the damaged product becomes mixed with the perfect product and frequently destroys the entire mixture. It was also alleged that it was absolutely necessary that there be a continuous operation of the plant, because unless it was so done plaintiff's business, which is acknowledgedly a lawful one, would be destroyed, followed by the loss of its investment and the profits arising from the operation of its plant. Other facts showing the operation to be one of necessity were alleged, but the one above stated was the chief and most convincing one.

Plaintiff introduced a number of witnesses who qualified as experts in the manufacture of "carbon black" with natural gas, some of whom had worked at the business for as long as forty years, and they each sustained the allegations of the petition and clearly pointed out the destructive consequences of a shut down from Saturday night at 12 o'clock till the same hour Sunday night, and for even a shorter time. That evidence as transcribed by the stenographer by agreement was filed with the petition and to be considered by this court on the hearing. In addition to it plaintiff has filed the testimony of six additional expert witnesses. Illustrating the substance of the testimony of all the witnesses, we will briefly refer to that of P. F. Reardon, who, after stating that he had been engaged in the manufacturing of "carbon black" for as much as twenty-five years for various concerns located in different parts of the country, said that "the closing of a carbon black manufacturing plant for the period of 24 hours or even for a considerably less period, would materially affect the quality and color of the product produced for several days after such shut down; that the black produced for the period of from 2 to three days after such shut down would be weakened and lightened in color which would materially affect its quality for certain commercial uses; that the effect also of a shut down for the period above mentioned, would cause the black manufactured for the next 2 or 3 days thereafter to be scaley and gritty and that scaley and gritty black is totally unfit for most of the commercial uses to which it is put; that after the shut down for any such period, it would take 2 or 3 days to get the product of the plant back to the quality manufactured before such shut down, both as to color, and as to the elimination of scales and grit." The same witness further stated "that an even temperature is necessary in order to produce a grade and quality of carbon black fit for commercial use; that the closing of a plant for the period of 24 hours, or in fact for any period, would require that the gas be turned off, which would permit the plant to cool and materially change the temperature; that carbon black manufacturing plants are necessarily constructed completely of metal; that in the process of manufacturing carbon black, gas is burned against smooth metal plates upon which the carbon black collects and from which it is scraped automatically and continuously; that when the gas is turned off the plates become cool and the coating of black thereon becomes softened and loosened, and that when the gas is again turned on the coating of black which was left on the plates comes off in scales and grit, spoiling the product until such time as the coating of black on the plates again acquires the proper consistency and that it takes from 2 to 3 days after the plates have been allowed to cool from the time the heat is again turned on until the same grade and quality of black produced before the shut down, can be made; that this condition results from the contraction and expansion of the plates, loosening the coating of black thereon, which, under continued heat, acquires and retains the proper consistency necessary to produce a commercial grade and quality of carbon black." The other witnesses who testified upon the trial in the circuit court, as well as those testifying in this court, with one accord corroborate those statements, and that testimony is...