Savannah morning news. [volume] (Savannah) 1868-1887, 1882-12-02

The Decision of the Supreme Court in
Favor of the Contract.

ucClslO0 Wy TIE supreme OOull
in the matter of the injunction to restrain
the city from further contracting for the
use of naphtha in the lighting of the street
lamps:
Opinion Supreme Court of Georgia, Sep
TENDER Term, 1882. The Attorney Gen
eral of the State Of Georgia ct al, plain
tiffs in error, VS.. the Mayor and Alder
men of the city Of Savannah and n. +.
Thompson, defendants in error.
By the Court-CRAwFoRD, j., delivering
the opinion.
This cause is brought to this court upon
the refusal of the Chancellor below TO
grant an injunction.
The grounds upon which the REALTORS
and orators claim the right to an injunc-
/ ton are, that the Mayor and Aldermen of
the city of Savannah are about to enter
into contract with one \. +. Thompson
to light the streets of said city, and that
| the burning fluid which is to be used is
naphtha, the fire test of which is less than
| 120 degrees Fahrenheit, and that the same
| upon inspection has been condemned; that
! il is being stored near the Exchange and
| endangers the records OF the city
and the titles to property; that the
Mayor and Aldermen are about to per-
| feet this contract. and that thereby they
| will become bound to pay the said Ihomp-
| son out of the corporate funds Of the city;
/ that the selling or offering for sale, the
| keeping for sale or in storage any burning
| fluid. fire test below one hundred and
| twenty degrees Fahrenheit, not approved
! by inspector, is expressly forbidden by
| statute: that the keeping and use are not
| only contrary to the policy of the State, but
| its high degree of inflammability involves
| constant risk of conflagration and great
| danger to the lives and property of all the
/ inhabitants of the city, of which REALTORS
| and orators are in constant apprehension,
and that some of the insurance companies
/ in which the REALTORS and orators have
/ their property insured are contemplating
] an increase of rates or a discOntlnuance
| of insuring in said city in consequence OF
| the use of the said burning fluid.
! The Mayor and Aldermen by their an
swer admit that they have entered into
| contract with their cO-defendant, ThOmp-
son. by which he is to light the
streets by means of a patent self
generating gas lamp. but do not
know whether the materials TO be used
are such as are forbidden by law. That
| proposals for lighting the streets for 1882
| were invited, and because the bid of their
cO-defendant, Thompson, would be large
saving to the city the same was accepted.
| Further answering, they say that, under
the charter of the city, they are charged
| with the duty of lighting the streets, and
| entered is not illegal in any respect, and,
| as it makes it obligatory on Thompson to
light said city for a sum of about three
thousand nine hundred dollars per annum
less than the same was proposed to be
done by the only other bidder, it should
| not be interfered with.
! Defendant Thompson, by his answer,
| admits that he has a contract to light the
streets of Savannah for the year 1882, but
! denies that he is now or ever was engaged
in selling or furnishing to the Mayor and
| Aldermen naphtha or other burning fluid
| below 120 degrees Fahrenheit fire test;
| that he does not now store any naphtha in
! any room near the Exchange nor did he ever
| at any time store large quantities there;
/ denies that he is now or ever was engaged
| in selling or offering for sale any burning
fluid in this State below fire test, or that
! he is using or otherwise dispOsing of any
| fluid in any manner forbidden by law, or
contrary to the policy of the State; denies
! all danger from his system q lighting to
any one. or that the insurance companies
| will increase their rates. Further answer
! ing, saws that he manufactures gas, shows
the process of its manufacture, and says
that the machine cannot explode or cause
| damage, and that the present suit is lnstl-
! gated by his competitor, the Savannah
Gas Light Company.
| Upon the bill and answers and proofs
| submitted, the Chancellor denied and re-
fused the Injunction prayed, for and COM
| pIainants excepted.
| 1. 1t has been so often ruled by this
I court that it would not interfere with the
discretion of the Chancellor below in pass
ing upon questions of fact involved in
| applications for injunctions unless
abused, that it is needless to do
more than to repeat that ruling
| in this Judgment. In this case the facts
seem to be so overwhelmingly with the
defendant that if a review of the judgment
of the Chancellor on the facts were neces-
sary we would be constrained to hold that
| he committed no error in ruling them as
| he did.
2. The only matter further to be consid-
cred is whether there was an error of law
\ committed in refusing the grant of this
| Injunction as prayed for. AS appears
| from the record, the Mayor and Aldermen
| had made most advantageous bargain
| with their cO-defendant, Thompson, to light
| the city, and it was sought to prevent the
| execution of this contract upon the
| grounds named in the bill of the REALTORS,
! the only one of which we consider it nee
! essarv to notice is whether there was any
| violation of law in the manner in which
| that contract was to be executed.
The main point pressed ON the argument
was that in the carrying out of this con-
| tract there would be violation of the
| laws of the State in the illegal use of
! naphtha as a burning fluid, and that
! contracts which are contrary to law
and to the general policy of the state
| should not be allowed, especially when
! such contracts endanger life ana property.
An examination of the various acts of
the Legislature on this subject will show
that the defendants do not propose to vio-
| late them.
The act of 1870 prescribes a penalty for
the unlawful sale, Offering for sale, or CIV
| ing away of kerosene oil, names It's legal
| standard, and prescrlbes test by Whlch
to measure its safety. That OF 1877 de-
| clares that no person shall mix naphtha
/ and Illuminating oils for sale, or sell or
| offer for sale oils made from coal or petro-
| Ieum which are below the standard; nor
shall any person sell, or offer for sale, or
| keep for sale naphtha for Illuminating
| purposes, where the same is used in max
| ing illuminatinggas by Doty's or other sta
! tiOnary gas machines.
The act of 1881 forbids the sale, or offer
| ing for sale as an illumination, for con-
sumption within the limits of the State,
| such fluids as are below the standard of
| the fire test named in the act.
Thus, with the several acts before us,
| and the contract of the defendants, we are
| unable to see wherein there is to be any
| violation of the law. The act of 1872 eX-
! cepts in terms from its provisions the safe
| of naphtha where it is to be used in making
| illuminating gas by DOty's or any other
| stationary gas machine; and that of 1881
only prohibits the sale of it when the pur
chaser is to consume it as an illumination
within the limits of this State.
The defendant, Thompson, neither sells
nor offers for sale the burning fluid of
which so much apprehension is expressed,
and if he keeps it in store, which is de-
MED, the penalties attached to such viola
tiOns of the law are ample for safety and
| protection. without the aid of a court of
equity, which takes no part in the enforce
| ment of the penal statutes of the State.
phillips VS.. Mayor of Stone Mountain, 81
Ga, 3S7.
Perceiving no error of law by the Chan
eellor in refusing to grant the injunction
sought by the REALTORS, his Judgment must
be affirmed.
W. s. Basinger Garrard & Meldrim,
Walter G. Charlton, Clifford Anderson,
Attorney General, for plaintiffs in error;
B. A. Denmark, j. r. Saussy, ;. b. Adams,
Henry C. Cunningham, for defendants in
error.
Important"
pNtiao il pallp1 IN the fact