Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-11-15
THE MEMPHIS GAs-LIGHT CONF
NY no FIJI pIYRIIC.

NY TO THE PUBLIC.
Prior to the publication made by this
Company Of the decision of the Supreme
! Court in the (so-calledl "Great Gas Case
the result of the trial was acrittea ap and
J celebrated rs n great victory for the GayosO
1 Gas Company. Since then, il having been
frequently reiterated that the supreme
Court Undecided adversely to thecla m Of
exclusive privilege made by the Mem
phis Gas Light Company and that the
Supreme Court had recognized the Ca
yOsO Company, with all its franchises, in
Memphis" il is due to the public that The
opinion be again laid before them, that
each one may act understandingly in such
cOurse as no may take in the premises.
The Memphis Gas-Light Company,
therefore, republish the following official
opinion and decree, tO-wit:
SUPREME COURToFTHE UNITED STATES
No. I3-DEcEHBEE TERN, 1855.
The Mayor and Alder-l
men Of the tity Of Appeal from the Cir
Memphis, the Mem cult Court OF the
phis GRyo-O Gas Co., United states for
and the Memphis Gas uhe Western Dis
Co, Appellants, triet OF Tennessee.
Thompson Dean.
Mr.. Justice Nelson delivered the opinion Of
This l. an appeal from the Circuit Court of
the United States for the Western District of
The bnI was filed by Dean, who Is a stock
holder In the Memphis 0aalight Company,
against this cum ptny, and the Memphis Gay
osa Gas Company, both Incorporated by the
Legislature 81 Tennessee, and also against the
city Of Memphis. tor the purpose of restrain
Ing the Gsyuso Gas company from laying,
down gas-pipes within the city Of Memphis
and from furnishing The city with gas. and
/ she city of Memphis from subscribing to the
the ground upon witch the claim is made
to restrain this cumpsuy 4, that the previous
company, OF which the complainant is a
member, had conferred upon II by It's charter
IN exclusive right 10 supply the city With gas,
and that the legislature was thereby disabled
from eouferring the same privileges upon an
other company; and, in respect TO the city OF
Memphis, that IL II p~recluded from subscrtb-
ing - the stock OF the new company by a
special agreement entered into between the
! city and the Mem phis Gts-ligit Com
The complainant charges IN his bill that he
has applied 10 THE president and directors Of
the Memphis Gas-lfh III Company, OF which be
Is a member, to institute the proper legal pro-
ceedfngs for the purpose OF enJOininE the
Gayoso Company from laying downs as-pipes
in the city; and also. the city rom subscfib-
lag TO stock in the same, and that they have
refused.
TO tits bill the respondents plead in abate-
meut, Ia substance that the MeInphis Gas
+ light Company had not refused TO take all
proper and legal steps To maintain rs rights.
and the rights OF its g~tOckhOlders. but, on the
sntrtry, e had flied a hill in a court OF chan
Gerry OF the state against the new company.
having full jurisdiction of the case, and the
same grounds set forth and relied on a. IN the
complainant bill, 10 enjoin il, rs viii appenr
from the record, which Is produced; That the
suit Is still pending In this court; and thatRn
application was made Tor a ~preliniluHry in
Z junction against the new company, which
was granted, 50 far as to restrain IL rom lay
ing gas-pipes 80 near the pipes Of the Mem
pins Gas-liEht Company as 10 cause any in
jury to them: but the court refused to RESI- rain
the company from proceeding with their
VOrks, lntihiating an opinion that the COM
p~lainants company possessed no exclusive
privileges % furnish gas to the city. The rec
ord OF the suit In ~clIancery is an exhibit, aud
substantiates all the facts set forth Ia the plea.
I The Memphis Gay0so Gas Com pany and the
city Of Memphis also put IN scpRrate nSwers;
hut, from the view we have taken Of the case,
IL Will not be material 20 refer to them more
particularly The cause was set down for hear
Ing by consent Of parties d. on the bin and ex-
AibiIS, and On the answer Of the Memphis
tfayOsO Gas tOmpGny and exhibits, and the
answer Of the mayor and aldermen Of the
Guy And the court. after hearing, determ-
med that the complainant was entitled to the
relief prayed Tor, and decrped perpetual in
Juncil0ns against the new company and the
city. The cause h. now before rs on appeal
Inc Judgment OF the court in the case Of
Dodge NE. " OolSry rs How, a3i-S55i author
izrs the stakeholder Of "A company 20 institute
a suIt ia rquity In his own name against n
wrong doer whose acts operate 20 tile preju-
dice OF TIE interests Of the stockholders such
as d minishing their dividends and lesson ny
the Yatue OF their stock, in a case where APP
plicutioE has 1rrt teen made to the direc!or.
OF The company 70 Institute the sulttnIusewu
uafues AID they have rs.uscd|Scs also =
Wal, &sy-DS) This refusal OF thr board OF
dirertOr~ - essential IN order TO give to TIE
~storkhplaer any standing IN court, a the
CHARTER coHfeFs Upon the diFsctufs REPRESENT
ing the hody VI stgckh0lders the general lla-
a. cement OF the business OF tle company.
Ihere must be "A clear default, thefsiofu, oa
then part, involving a breach Of duty, within
the rule established in equity, Ia authorize a
~stockhOlder 10 institute Tile suit in his own
behalf, or Tor himself and other .ders
who may chOo-e 10 Join. The plea IN abate-
menI ia the record il founded upon this View
OF the law. Il not only denies the reusa bu;
Avon MnA MmWHH#AH AZ .N q. ~ la "a AaunaH %
competent Jurisdiction, and in which the
ground OF complaint enthusiastically tie same
~ set fofth IN the cOInpiainant's bill. 1his -
2 plea 20 tae person of the complainant.
P!sh= 70 the PfrsQn, says Mr. DGnicI, = Dan.
~, p IA ia Eis2s ~ the inrisdlcTlon, do
rights, which are made the subject Ofthe suit.
Dut object 10 tie plaintiff s ability to sue. or
the defendants liability to be sued respecting
them And Judge Story observes, they oO-
tect to the plaintiff that he is by law disabled
10 sue IN a court OF justice, or that he cannot
institute o suit alone or that he Is not the
person he pretends TO be or that he does not
sustain the character he assumes. Equity
p, p. 3D. These are properly pleas IN abate-
lneht- or az ieest ~ tne natpre OF abatement.
III IL ms stsd. hpwcvar. ga the part Of tho
leafued rounsel tnr tho appellee, thet the suit
Ia the state cont did not cover al the 2 -.ev-
ances set forth IN EiS bill, - tie directors
were required To proceed against the city OF
memphis winch MaA note party defendant n
IA his bill IS. that the city authorizes passed
an ordinance authorizing the mayor to ho3d
an election 10 Test the sVnSe Of the voters OF
the city a. to the prOprtety Of subscribing
800 0O TO the stock of the Memphis Gayo~o
CoaAiAsGyi ard he apprvhends thUt the infiu-
enee OF tho ~eGFpofatr autho ities wal be OK
ereised on the VOtsTs iIgQrEAle 10 the tompa-
ny, ana viii proceed 10 subscribe rs lis stock.
and further that the city had entered iuto-a
eohtiaet with compiainant's company 10 fuF-
RisA the lamps OF the city with gas for twenty
yvafs aa9 tgst ths nvtiOn OF tine Guy Is ia vi
S tss5 81 l ey gA5f d H#s ~ prsys
holding the pleetion or Subscribing 10
tho sL9ck This j. iRs b auei Of the
etssr Fvied ga 10 she's that The snif Ia the
state eont! Nas Lot a compliance SltA, %
fuinllinebt OF, the request Vi the coulpla iuaHt
20 the d@IeetoEs Of Inc Memphis Gas-iishi
company 10 institute legal proceedings.
But, admitting HI this 70 he true. Il Iurnish-
81 no valid ground for making the Memphis
1ayoS9 sss { Qmpany "A party, and agitating
over agRlq tt1e salsle Question which was pcnd-
lng in khs Stale coQff. n-u8ely, whether orhot
The Memphis GasTight Cgh1pqsy EqQ "a en-
elusive right 10 mFarsh Tie citynG AfslHpiis {
with gas There Is no necessary connection /
between that suit, or the gubject-Inatter ia
vowed IN Il, and the one agulnzt the city.
The fOrfner tnrnS upon a construction of the !
CHARTER - he Memphis Gas light Company.
dbo letter Hh9IA AflltS4. esntraet between
t s.Hps = Mpsh any laS siia1, ,FAs 9eessiaa
elusive privileges Of the ootnpa undef the 1
charter II anyS suit wasGesired, or advisable,
against the city, x should have been u sepa-
Fs-e one, founded on the contract.
Be5idrei taensae esstnst tue city was prelna-
suto untli the question saSssfttfd whether
or not the Memphis gayoso 0bS TGnlpany I
was valid, and had a right to establish Itself
IA - elty OF Memphis. the suit against the
city was iOunded On a hypotheticai case. II
heie ~ The state court on the aaal hearing
thai Ehe Mem Fi,le Jas Company had the ex-
elusive riBlI, the c[isteb-s 81 the other COM
pany must cease, and Tie sur a38lpst lie sity !
would be superhuou2
The sult Is premature. also, FOR the reason IL
Is ioundto aaa HQHlinsency5 That a majority
Of the voteH OF the city ghi e9tr in nYer OF
n city subscription 10 tie stock. The hrlfsecks
10 eu1ofn the cliy from holding the election
for fear a majority mey fafor subscription
and then. that the city VIII subscribe. Tne
complainant should have waited Till anertne
result OF the election. and, IL tt had been
sgat9sf making any subscription, no suit
would hsVF been required; n in favor, Il
iae TIL.
Bat, over aud beyond al these oss-saIsns
We are satiSned that Ihere II nothing IN the I
proNkiOBs OF the contract that can be made |
qYaiiabie TO rstop the city tom subscribing 10
the stack. II secures 10 the cOmplainants
COMPANY the exclusive privilege Of supplying
the pubic lamps II ths streets Ofthe city with
gas Tor twenty years, e one hall ths price
which Is charged 70 private persQLS. Tht>
= the essence 81 The contract. There are other
80 1