Zanesville Gas-Light Co. v. City of Zanesville

• Decision Date: 10 December 1889
• Citation: 23 N.E. 60,47 Ohio St. 35
• Parties: ZANESVILLE GAS-LIGHT CO. v. CITY OF ZANESVILLE.
• Court: Ohio Supreme Court

23 N.E. 60

47 Ohio St. 35

ZANESVILLE GAS-LIGHT CO. v. CITY OF ZANESVILLE.

Supreme Court of Ohio.

December 10, 1889

Error to circuit court, Muskingum county.

Syllabus by the Court

1. Where it is the duty of a gas company to furnish gas to a city at the rates fixed by an ordinance of the city council adopted under the authority of section 2478, Rev. St., it may, if it refuse, be compelled by a mandatory injunction so to do, so long as it continues to exercise and enjoy its franchises as a gas company.

2. A suit for this purpose may be brought by the city solicitor under the provisions of section 1777, Rev. St., as amended April 14, 1884, (81 Ohio Laws, 189.) A suit so brought is not in the nature of a quo warranto , and may therefore be brought in the common pleas.

3. Where a judgment rendered in one suit has been reversed on error in this court, it cannot be relied on as an adjudication in another suit, when the judgment in the latter suit is brought to this court for review, although such former judgment was in force and unreversed at the time of the rendition of the judgment sought to be reviewed. The party in whose favor it was rendered is estopped, by its reversal, from affirming its verity.

M. M Granger, A. W. Train, F. H. Southard and H. R. Stanberry , for plaintiff in error.

Gilbert D. Munson, A. J. Andrews, R. H. McFarland , City Sol., and W. H. Cunningham , for defendant in error.

MINSHALL, C. J.

The original action was commenced by the city of Zanesville against the Zanesville Gas-Light Company. The company was chartered by an act of the legislature, in 1849, to manufacture and sell gas to the city, and its citizens. In the same year an ordinance was passed by the town (now city) of Zanesville, granting the company the use of its streets and alleys, and fixing the maximum price at which gas should be furnished. This provision does not seem to have been regarded by the company or the city, as the company, from its organization, supplied gas to the city under agreements with it made from time to time, at rates sometimes above and sometimes below the maximum fixed by the ordinance, until in 1884, when, all agreements being at an end, except as to a few outposts, the city, in pursuance of the power conferred by section 2478, Rev. St., passed an ordinance fixing the price at which the company should furnish gas to the city and private consumers. The company refused to furnish gas to the city at the rates so fixed, claiming that it was not subject to the provisions of the ordinance, and was proceeding to disconnect its pipes from those that supplied the city when the city commenced its action to restrain the company from so doing, and to require it to furnish gas at the rates fixed by the ordinance. The charter of the company, the ordinance of the town granting the company the use of its streets and alleys, etc., and that of 1884, fixing the price of gas, will be found in the statement of the case of City of Zanesville v. Gas-Light Co., ante, 55. There, in the original action, which was a suit brought by the company against the city, the company sought to restrain the city from interfering with it in disconnecting its pipes from those of the city; the company claiming there, as here, that, having been chartered by the legislature before the adoption of the present constitution of the state, it is not subject to the ordinance of the city fixing the price at which gas should be furnished. On appeal to the district court the decree was so entered as to require the city to pay the price fixed by the company, or be restrained from such interference. Though not in these words, such was the legal effect of the decree. This judgment, having been rendered in the district court prior to the hearing of the case of the city against the company in the common pleas, was there pleaded as a bar to the action of the city. The common pleas rendered judgment against the city. An appeal was taken by it to the circuit court, where, on the pleadings as made up in the common pleas, that court rendered judgment in favor of the city, requiring the company to furnish gas to the city, at the rates fixed by the ordinance, so long as it should continue to exercise its franchises within the city. A number of reasons are assigned why this judgment should be reversed, and the petition of the plaintiff below dismissed: (1) That the suit is in the nature of a quo warranto and that therefore the court in which it was commenced had no jurisdiction; (2) that the company is not subject to the ordinance of the city fixing the price of gas; (3) that the real controversy, the applicability of the ordinance to the company, was determined in the suit of the company against the city, and is therefore res adjudicata ; (4) That the company cannot be compelled by injunction to furnish gas at the rates fixed by the ordinance.

1. As to the first proposition, the argument in support of it seems to assume that no power of franchise claimed by a corporation can be questioned, except in a proceeding in quo warranto . This is certanly erroneous. City of Zanesville v. Gas-Light Co., supra . That a judgment of ouster cannot be pronounced in any other proceeding is true; but a judgment of ouster in a proceeding in quo warranto , commenced on behalf of the state, is one thing, and a judgment in an action between a company and a private person, brought to assert some proprietary claim or alleged obligation of the one to the other, is a very different thing, although the latter judgment may rest upon a conclusion, drawn by the court, that, as a matter of law some power or franchise claimed by the company is not possessed by it. In such judgment the question is simply passed on to determine the rights and obligations of the parties involved in the particular litigation; but it is not available as an adjudication in favor of or against other persons, and the question as to the disputed franchise may be made as often as it arises in litigation between the company and third persons. Not so, however, in a proceeding in quo warranto . The purpose and...