156 Ind. 406 | Ind. | 1901
On March 22, 18-70, he city of New Albany, by an ordinance, granted the Gas Light-fc'- Coke Company a franchise to'occupy the streets for-the-purpose of furnishing the- city and its inhabitants with gas, 'for -the term of twenty years from and after April 7, 1871. The ordinance provided that the gas -company should -fu’rnish good-,, pure gas for all the' public lamps of the- city, and light, extinguish, and keep the same 'in good repair for the priee of $18 per annum for each lamp — the posts-and lamps to'be furnished by the city — and that the charge for gas furnished the city and its inhabitants should not-exceed $3 for each
The gas company accepted the terms of the ordinance, and expended a large sum of money in the purchase and construction of its plant. Both the parties proceeded to act under the ordinance contract.' On Marcia 19, 1888, ,the complaint alleges that while the contract aforesaid was in full force and yet had three years to run, the city, by its common council, by a supplemental ordinance, in consideration of the reduction of the price of gas to consumers, including the city (except as to the public lamps), and for the purpose of carrying out its agreement to extend’ said contract, in lieu of purchasing said gas plant, proposed" and agreed to and with the plaintiff (gas company) that all the rights and privileges, duties and obligations held, enjoyed, and owing by the said gas company, under and by virtue of the said ordinance, passed March 22, 1870, and under and by virtue of the said contract and agreement then subsisting between said company and the city, subject to the modifications in said ordinance of March '19, 1888, should be, and the same were, extended and continued in force for the term of twenty-three years from and after sáid' 7th day of April, 1888. The first section of the ordinance of March
The gas company accepted the terms of the ordinance of 1888, and both the company and city proceeded to act under it; and the company has expended-a large siim of money in laying mains and in extending its facilities for manufacturing and furnishing gas, and has, since March, 1888, furnished gas to the city and all other consumers for a less price than it was permitted to charge under the ordinance of 1870. Prior to January 1, 1892, the1 city had established eighty-four public lamps in the city, which weré embraced within said agreement. Since January 1, 1892, the gas company has been prepared, ready, and willing to supply all-the public lamps with gas under the terms of the ordinance and agreement, but the city has, since said-last date, wrongfully refused to use the public lamps, and prevented the company from lighting the same, and refused to receive gas and pay for the same,'to the damage of the company. To a complaint alleging the foregoing, the' court sustained a demurrer for insufficiency o'f facts, which action of the court presents the only question we are called upon to decide.
To exhibit an action ex contraciu for damages, appellant, ■ as plaintiff, must show the existence of a valid contract with
We.must then- look exclusively to the ordinance of March 19, 1888, for such a contract on behalf of the city as will support the- complaint. Here we find it expressly stipulated that the city shall keep in service all public lamps theretofore maintained, and to erect and keep in service three additional lamps for every 260 feet of gas main extension under the ordinance, which number of lamps so maintained and erected prior to January 1, 1892, is alleged to be eiglity-four. At this point, however, we are confronted with the contention of appellee that the city had no authority of law to pass the ordinance: of 1888. The first section of the act of March 3, 1883 (Acts 1883, p. 85), §4301 Burns 1894, in force March 19, 1888, reads as follows : “That the common council of any city in this State, incorporated either under the general act for the incorporation of cities, or under a special charter, 'and the board- of trustees of all incorporated towns of this State shall háve the. power to light the streets, alleys and other public places of such city and town with the electric light, or .other form of light, and to contract with any individual or corporation for.lighting such streets, alleys and other public places with the electric light, or other forms of light, on such terms, and for such times, not exceeding ten years, as may be agreed upon.”.
Under the view, we have taken of the case, it is not necessary that we decide (1).whether the franchise -grantéd the gas. company, under the ordinance of-1870, was for twenty-years or for a .forty years’.term with an option- engrafted upon it to be exercised at the end of twenty years, or (2) whether an exclusive franchise for gas lighting for either twenty or forty years is void on'the ground 'of public im
We can not agree with appellant that the act of 1883 relates exclusively to electric lighting. In the enacting clause, and in every instance occurring in the act, composed of five sections, where the kind of light under consideration is described, the language used is, “electric light or other forms of light”, except at the close of the third 'section where the words employed are, “electric or other light”. This language is repeated six times in the act and removes every doubt of legislative intent.
But it is ably argued that if gas lighting contracts are within the inhibition of the act of 1883, the contract under consideration for the term of twenty-three years is not wholly invalid, but good for the term legally authorized. The statute reads that the common council may contract for lighting of the. city for such term as may be agreed upon
Our conclusion is that appellee’s ordinance of March 19, 1888, so far as it was attempted thereby to contract with appellant for lighting the -streets and other public places of the city for a term of twenty-three years, was in violation of the act of 1883,- and- was therefore ultra vires and vnid. This result leaves the appellant without a contract in support of its conlplaint; hence, the demurrer thereto was properly sustained.
Judgment affirmed.