Town of Hagerstown v. Liberty Light & Power Co.
| Decision Date | 12 January 1926 |
| Docket Number | No. 12325.,12325. |
| Citation | 150 N.E. 116,84 Ind.App. 115 |
| Court | Indiana Appellate Court |
| Parties | TOWN OF HAGERSTOWN v. LIBERTY LIGHT & POWER CO. |
OPINION TEXT STARTS HERE
En Banc.
Appeal from Circuit Court, Fayette County; E. Ralph Himelick, Judge.
Action by the Liberty Light & Power Company against the Town of Hagerstown. From a decree for plaintiff, defendant appeals. Reversed with directions.
Will W. Reller, of Richmond, and Wiles, Springer & Roots, of Connersville, for appellant.
Gardner, Jessup & Hoelscher, of Richmond, for appellee.
On the 5th day of November, 1920, the appellant herein, by its board of trustees, entered into a contract with one Robert M. Cass, by the terms of which contract said town turned over to said Cass, as “operator,” its “light plant,” which was thereafter to be “operated” by said Cass for the term of three years, under said agreement, he agreeing to pay said town certain moneys in said contract specified. This agreement was approved by the Public Service Commission, and the parties thereto entered upon the performance of the same.
The fifth clause of said contract was as follows:
“That municipality and operator both recognize the changing character of the industry, and the growing practice of elimination of generation of electrical energy at isolated plants, and the generation at large plants, and the service to smaller communities and centers by means of transmission lines thereto; and in this agreement it is specifically provided, agreed and understood that the operator proposes to, if possible, make such engagement or arrangement at earliest possible date, whereby transmission service may be available to the town of Hagerstown and community, thereby relieving operator for the time being, and the municipality finally from costs of operation and generation at power plant, and only maintaining power plant for reserve purposes; and such proposed and intending policy and practice upon part of operator is by municipality agreed to and confirmed.”
On March 27, 1922, an agreement was entered into, the introductory part of which is as follows:
“This contract and agreement made between the Liberty Light & Power Company, a corporation of Richmond, Indiana, its successors or assigns, party of the first part, and Robert M. Cass, of Indianapolis, Indiana, his successors or assigns, in his capacity as operator of the electric public utility owned by the municipality of Hagerstown, Wayne county, Indiana, all of which contract between Robert M. Cass and the municipality of Hagerstown is attached hereto, and with special reference to article five of said Cass contract, party of the second part witnesseth.”
On August 9, 1922, the board of trustees of Hagerstown, by ordinance duly enacted, declared the contract, made on November 5, 1920, with said Cass, forfeited, and that the same should be at an end on and after September 11, 1922, by reason of the failure of said Cass to carry out and comply with the terms thereof, due notice of which action was given to said Cass.
Thereafter and prior to the 11th day of September, 1922, said Cass filed in the circuit court of Wayne county, Ind., his complaint against appellant, in which action he sought, first, a restraining order, and, on final hearing, a permanent injunction against the appellant, enjoining it from in any way interfering with him or his rights under said contract of November 5, 1920. Such proceedings were thereafter had in said cause that the Wayne circuit court on October 3, 1922, entered its finding and decree in favor of the appellant herein, the town of Hagerstown, and the restraining order theretofore issued in said cause was dissolved and final judgment rendered against said Cass that he take nothing by his said complaint, and that said town recover its costs in said action.
The record further discloses that on the same day, October 3, 1922, the appellee filed this action against the appellants seeking to enjoin the appellants from violating the terms of a certain contract (the contract of March 27, 1922, before referred to) which it alleged existed between it and appellant town, by the terms of which it was alleged said town had agreed to buy and appellee had agreed to furnish to said town, for the period of ten years, electric current for the use of said municipality and for the inhabitants thereof.
After a demurrer to the complaint had been overruled, the cause was put at issue by an answer in two paragraphs, the first being a general denial. There was a trial, which resulted in a decree in favor of appellee, by which the appellant town was permanently enjoined from “interfering with or denying the rights of the plaintiff as set forth in that certain agreement in writing dated March 27, 1922, and executed by the Liberty Light & Power Company, by Robert S. Ashe, president, as party of the first part, and R. M. Cass, operator, under...
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