State ex rel. Wood v. Consumers' Gas Trust Co.

• Decision Date: 01 November 1901
• Citation: 157 Ind. 345,61 N.E. 674
• Parties: STATE ex rel. WOOD v. CONSUMERS' GAS TRUST CO.
• Court: Indiana Supreme Court

157 Ind. 345

61 N.E. 674

STATE ex rel.WOOD

v.CONSUMERS' GAS TRUST CO.

Supreme Court of Indiana.

Nov. 1, 1901.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Mandamus by the state, on the relation of Ann E. Wood, against the Consumers' Gas Trust Company. From a judgment in defendant's favor, plaintiff appeals. Reversed.

F. W. Ballinger, John W. Kern, and Joseph E. Bell, for appellant. R. N. Lamb, W. H. H. Miller, John B. Elam, and S. D. Miller, for appellee.

HADLEY, J.

Suit for a writ of mandate to compel the appellee, a corporation engaged in supplying natural gas to the inhabitants of the city of Indianapolis for fuel, to lay a service pipe from its main, and permit the relatrix to connect therewith, and use the gas for fuel in her residence. An alternative writ, embodying all the material averments of the complaint, was issued. Appellee, for a return to the writ, filed an answer in two affirmative paragraphs. A demurrer to the second was overruled, and to the third sustained. The relatrix elected to stand on her demurrer to the second paragraph, and, declining to plead further, judgment was rendered against her for costs. The overruling of said demurrer is the only error assigned.

It is alleged in the alternative writ that the relatrix is a resident of Indianapolis, and the owner in fee of a certain lot adjoining and fronting on Bellefontaine street, in said city, upon which she has erected a dwelling house, which she has, at great expense,arranged for the use of natural gas, as fuel, by means of a furnace; that no other fuel can be used therein without great detriment and inconvenience, and that a pipe has been properly connected with said furnace, and extended therefrom to the exterior of such house, and to the property line in front thereof; that the defendant, being a corporation organized under the laws of Indiana, is engaged in the business of operating a natural gas plant, and selling to said city and the inhabitants thereof natural gas to be used for fuel; that, because of the public character of defendant's business, the city granted to it a valuable franchise, and permitted it, among other things, to lay its mains, pipes, and conduits in, through, and beneath the surface of the streets of said city; that said defendant has laid and maintains in said Bellefontaine street, and directly in front of her said dwelling house, one of its mains, which it actually uses in transmitting natural gas for use of its patrons; that defendant could, by means of service pipes, easily and conveniently connect its said main with the pipe attached to, and connected with, the furnace of the relatrix. On September 11, 1899, the relatrix applied to defendant for permission to use its said natural gas in said house, and requested it to lay said service pipe necessary to connect said main with her said furnace; but the defendant refused to lay said pipe, or to permit the relatrix to use said gas, although she advised defendant as to the character of her said furnace, and the size and dimensions of the burners thereof, and tendered to defendant the sum of $10, good and lawful money, for the use of said gas for a period of six months in advance; that being the customary and usual charge made by the defendant for the use of gas in furnaces of the same character and size. Relatrix offered to comply with all the reasonable rules and regulations of the defendant relative to the use of said gas, and to the payment therefor. “Wherefore the relatrix prays that this honorable court issue its alternative writ of mandate commanding defendant to lay said service pipe, and to permit relatrix to use said gas, or show cause why the same shall not be done.” The alternative writ commands: “Now, therefore, you are commanded to lay a service pipe from your main on said Bellefontaine street to the property line in front of said house of relatrix, in said city of Indianapolis, and to permit relatrix to use said gas, or, in default thereof, that you appear before this court * * * to show cause, if any you have, why the same should not be done.” The second paragraph of return admits that the defendant is a corporation organized under the laws of Indiana, and that it is engaged in the business of operating a natural gas plant, and selling and distributing gas to the city of Indianapolis and its inhabitants, to be used as fuel. Among the objects of the corporation, as set forth in its articles of incorporation, are to drill and mine for natural gas; to purchase, lease, and acquire gas wells, and the products thereof, and to furnish the same to patrons for use; to take, hold, convey, and mortgage real estate; and to own, operate, and maintain such machinery, works, pipe lines, etc., as the carrying out of the objects above mentioned may require. The capital stock is fixed at $500,000, and the term of corporate existence is 50 years. The articles provide that the entire capital stock shall be placed under the control of a board of trustees, giving such board full and irrevocable power to hold and vote the same. A board of nine directors is to be selected by the trustees. The board of trustees is self-perpetuating, all vacancies by death and otherwise to be filled by the survivors. It is also provided that, upon the payment by any subscriber to the capital stock of the amount of his subscription, the trustees shall issue a certificate showing the amount of stock held in trust for him, and such subscriber shall be entitled to receive all dividends earned by his stock, not to exceed 8 per cent. per annum, which dividends shall be paid in money or applied to the indebtedness of such subscriber to the corporation, as a consumer of gas; also that when such certificate holder shall have received, by dividends or otherwise, upon said certificate, an amount equal to his subscription, with interest at the rate of 8 per cent. per annum thereon, and after payment of all indebtedness of said company, then it shall be the duty of the directors of said company to reduce the price of gas so that the same shall thereafter be supplied to consumers at cost. It is alleged that the defendant has organized as a voluntary enterprise in the general interest of the people of Indianapolis, and not for the purpose of making money for any one, but solely for the purpose of furnishing gas to consumers in the city at the lowest possible rate, the same not to exceed, in any event, the schedule of prices fixed by the existing ordinance; that since its organization said company has been operating in pursuance of the laws of the state, furnishing gas for heating to the people of Indianapolis at prices not exceeding certain rates theretofore fixed by an ordinance of the city; that 6,712 citizens of Indianapolis subscribed for 25,675 shares of stock, aggregating $641,875, of which amount $605,258 was paid; that certificates of indebtedness were sold to the amount of $112,000, and that $429,000 of such certificates were used in the purchasing of pipe and other material; that the defendant made every possible effort by soliciting subscriptions and the sale of certificates of indebtedness to raise the necessary funds to pay for its plant, and also made an unsuccessful effort to sell $1,500,000 of its bonds, so that its only capital and resources were derived from stock subscriptions, the sale of its certificates, and from the revenues derivedfrom the sale of gas; that with the money so derived it purchased and laid pipe lines of various sizes, aggregating 378 miles; that it has drilled and connected with its pipe lines 404 natural gas wells, of which 105 have been exhausted and abandoned; that it has purchased right of way, and has leased 78,287 acres of land for the purpose of drilling gas wells thereon; that it has built and equipped a compressing station in Hamilton county at an expense of $62,000, and is engaged in building another in Madison county, which will cost $75,000, a large part of which last amount has been paid; that all its funds, revenues, and resources have been thus expended in the necessary expense of carrying on its said business of supplying gas; that its trustees and directors have served without pay, though many of them have rendered arduous services; that at the time the company was organized natural gas had been developed in Marion and Hamilton counties, which was believed to be inexhaustible; that the well pressure was then 325 pounds to the square inch; that the wells in Marion county and 80 of the 100 drilled in Hamilton county have been exhausted and abandoned, and others in that county are of little value; that the average pressure of...