Thistlethwait v. State

• Decision Date: 27 January 1898
• Parties: THISTLETHWAIT et al. v. STATE.
• Court: Indiana Supreme Court

149 Ind. 319

49 N.E. 156

THISTLETHWAIT et al.

v.STATE.^*

Supreme Court of Indiana.

Jan. 27, 1898.

Appeal from circuit court, Hamilton county; R. R. Stephenson, Judge.

Proceeding by the state of Indiana against Henry J. Thistlethwait and others for contempt for violating an injunction. From a judgment for plaintiff, defendants appeal. Affirmed.Kane & Kane and Christian & Christian, for appellants. Fertig & Alexander, Stephenson, Shirts & Fertig, and Robert Denny, for the State.

MONKS, J.

Appellants were fined for contempt of court, for taking, charging, and demanding more for the use of natural gas than the maximum amount fixed by an ordinance of the town of Westfield, in violation of an injunction of said court. It appears from the record that in an action brought in the Hamilton circuit court by Mendenhall and Denney, residents and consumers of natural gas in the town of Westfield, on behalf of themselves and all other gas consumers of said town, against the Westfield Gas & Milling Company, a final decree was entered in June, 1894, perpetually enjoining said gas company, its assignees, grantees, and successors, from taking, charging, demanding, or collecting more than 80 cents per month for the use of natural gas in cook or kitchen stoves in said town (the same being the maximum rate fixed by section 7 of an ordinance of said town passed January 4, 1889), and from raising or increasing the monthly or yearly charges for such stoves above 80 cents per month (the maximum rate as aforesaid). From this decree an appeal was prosecuted by said gas company to this court, and the said judgment was on November 19, 1895, affirmed. Milling Co. v. Mendenhall, 142 Ind. 538, 41 N. E. 1033. While said appeal was pending in this court the Westfield Gas & Milling Company and the town of Westfield, for the purpose of compromising all questions in said injunction proceedings, entered into an agreement which provided that the town of Westfield was to pass a new ordinance regulating the price for which gas should be furnished in said town, increasing the maximum price for cook stoves to $1.25 per month, and also that one-half of the costs in the injunction suit pending for appeal in this court should be paid by said gas company, and the other one-half by the citizens of said town. Afterwards, in accordance with the terms of said agreement, the board of trustees of said town, on November 1, 1895, passed an ordinance fixing the maximum rates to be charged by the Westfield Gas & Milling Company to consumers in said town for the period of 11 months from November 1, 1895. The enacting clause of said ordinance was as follows: “Be it enacted by the trustees of the town of Westfield, that so much of section 7 of an ordinance passed and dated January 4, 1889, regulating the prices to be charged for the use of natural gas for heating and illuminating purposes by the Westfield Gas & Milling Co., shall be amended, and the following prices substituted for a period of eleven months from November 1, 1895.” The body of the act provided what the rates should be per month from “Nov. 1st, 1895, until May 1st, 1896,” and what the rates should be from “May 1st, 1896, until October 1st, 1896”; thus, in express terms, fixing the rates only for 11 months. Said gas company, after the passage of said ordinance, charged and collected from consumers of natural gas the maximum rates fixed by said ordinance, until February 8, 1896. In February, 1896, one of the appellants, the Westfield Gas Company, succeeded by purchase to the rights and franchises of said Westfield Gas & Milling Company; and said appellants, from that date until the commencement of this action, in December, 1896, with a full knowledge of said injunction, demanded and received rates for gas in excess of the rates fixed by section 7 of said ordinance and by said injunction. On October 1, 1896, the 11 months fixed by said ordinance, during which the increased rates could be charged, expired, and negotiations were opened between the board of trustees of said town and the Westfield Gas Company relative to the rates to be charged for gas by the said company in the future. As a result of said negotiations, a resolution in writing was passed by the board of trustees of said town in these words: “Resolved, that the Westfield Gas Company be, and hereby is, authorized to charge and collect from consumers of natural gas in the town of Westfield, for the month of October, 1896, the same rates fixed in the ordinance of November 1, 1895, amending for eleven months section 7 of the ordinance of January 4, 1889.” And it was further agreed that if said company would drill wells, and make provision to furnish an adequate supply of gas to its consumers in said town, said ordinance of November 1, 1895, should be continued in effect. The Westfield Gas Company afterwards completed a number of wells, and fully complied with said agreement, but no ordinance was passed by said town as provided in said agreement. It is not claimed by appellants that said last oral agreement made between the Westfield Gas Company and said board of trustees on October 1, 1896, for the continuation of the increased rates of gas, was binding on the town. It is clear that the board of trustees had no power to make such a contract.

Appellants insist that the ordinance passed November 1, 1895, increasing the maximum rates to be charged for the use of natural gas for 11 months from that date, entirely abrogated section 7 of the original ordinance, as passed January 4, 1889, and that after the expiration of said 11 months, if said limitation was valid, there was no restriction upon the rates to be charged for the use of natural gas, but, if said limitation of 11 months was void, the maximum rates to be charged were those fixed by said ordinance adopted November 1, 1895. It will be observed that the ordinance of November 1, 1895, only provided the rate to be charged by the Westfield Gas & Milling Company, while section 7 of the original ordinance fixed the rates to be charged by all...