The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-08-18
NO CHEAP GAS rs YET
THE COMPANY OBTAINS THE TEN
PORARY RESTRAINING ORDER.
Judge Baker Reaches a Decision at
Rebates if 1t Loses the Case.

Judge Baker, Of the United States Dis
triet Court, yesterday gave a decision in
chambers at Goshen granting the tenn
porary injunction asked for by the Indian
apols Gas Company restraining the city
from enforcing the ordinance fixing the
price of artificial gas at 70 cents per thou
SAND feet The decision requires the COM
pany to give bond to the satisfaction of
the clerk of the court to rebate to con-
sumers all charges in excess of 10 cents in
case the case goes against it at the final
hearing. The only argument made against
the bill OF the company at the preliminary
hearing was in support of the claim that
the court could not take jurisdiction of the
case This claim the court brushes aside
by reference to the decision in the case Of
the City Railway Company, and then grants
the temporary order because if the con-
sumers should be injured by the granting
OF II, they can be protected by the bond
required, while if the company should be
injured by the failure to grant it, it could
nave no recourse on account of the small
ness of the individual claims it would have
to prosecute. The decision does not enter
at all into the merits of the case further
than to say that the bill makes out a prima
facie case and as none of it's allegations
We're denied by the defendant they must
be taken for true. The decision reads as
follows:
The defendant insists that this court
cannot take Jurisdiction of this case be-
cause both parties are citizens of this State.
Inc same objection was made in the case
OF the Citizens, Street-railroad Company
VS.. The CITY Railway Company, So Fed.
Rep., 40. IhlS court oVerruled the objection
ana on appeal the Supreme Court, 166
United States 557 affirmed the decision of
court declaring iDriS6infinn
was undoubted on the ground that the suit
was one arising under the Constitution of
elusive on the jurisdiction of this court in
the present case
The Supreme Court has declared in
many cases that there is remedy in the
courts for relief against legislation eStab
fishing tariff of rates which is so unrea-
sonable as to practically destroy the value
or property of companies engaged in the
carrying business and especially may the
courts of the United States treat such a
question as a judicial one, and hold such
act of legislation to be in conflict with the
Constitution of the United States, as de-
pr1Ving the company of their property With
out due process of law, and as depr1vIng
them of the equal protection of the law.
The principle extends to and protects all
corporations ana persons engaged as is the
complainant in quasi public employments,
whether the deprivation or their property
without due process of law or the depriva-
arises from a legislative enactment or
municipal ordinance In this case no denial
has been made of the truth of the facts
set out in the bill of complaint which Is
supported by affidaVits. These facts must,
therefore, for the purposes of the present
application for a temporary restraining or
der, be taken to be true. Assuming all the
facts so alleged to be true, in my opinion
a case is presented which entities the COM
plainant to invoke to the judgment OF the
court as to whether or not the ordnance
in question will practically deprive it OF its
property without due process Of law, and
also deprive it of the equal protection of
the law hV cOmpellinR 1t to sell It's arLlUC1dI
gas without any return theretrom IN the
way of profit.
ought to be granted pending such judicial
inquiry will depend largely on the chRracter
or the other from the granting or refusing
of it. 1t is settled that upon preliminary
application for a temporary restraining or
der all that the judge should, as general
rule require is a case of probable right
cut The II interference Of the court, and his
discretion should then be regulated by the
balance of Inconvenience or injury 10 the
one part or the other 70 Fed. Rep, 952;
refused and the ordinance should eventu-
ally be held invalid the injury resulting to
the complainant from its enforcement
would be practically irremediable because
of the number of it's patrons and the small
amount to be recovered from each: on the
other hand, If a temporary restraining or
dinance can be judicially determined, the
rights Of the city can be fully protected by
that will pay to the city the amount col;
lected by it in excess of the rate prescribed
by the ordinance in the event that such
ordinance shall be adjudged to be valid.
1.-THE court therefore will award tenn
porary restraining order pendentelite as
prayed for in the bill of complaint upon
the complainant entering into an under
taking with the sureties to the approval
of the clerk of this court in substance as
1--WE undertake and promise to pay to
the city of indianapolis sum equal to
two-ffths OF all sums of money collected
or received by the Indianapolis Gas Com.
pany from or on account of the sale OF
artificial gas during the tendency of the
temporary restraining order granted IN me the
above entitled cause without any relief
whatever from valuation or appralsement
laws and with attorneys fees II SAD IN
dianapolis Gas Company shaIl ran 70 ootd!n
a perpetual Injunction, as prayed Tor IN us
The clerk will enter a temporary re-
straining order as prayed for on the giving
of the undertaking above required
The injunction will become effective
whenever the company files a bond salts
factory to the clerk, Noble c. Butler. This
bond would have been filed to-day, but Mr.
Butler intends going to New Albany this
morning to return tomorrow evening and
the bond will not be filed until Friday
morning The company Mr.. Winter said
last night, is in no particular hurry, as
the ordinance would not go into effect until
next week. 1.-The decision" said Mr.. Win
ter, lis exactly what I expected. When
the final hearing will come do not know.
probably some time in the fall. We are
not worrying any further"
1t is the city that has to walk the floor
and the hope is generally expressed that
this case will not get lost in the shuttle
like that street-car case that is slumber-
ing so peacefully in the Hamilton County
Court under the gentle care or city At
torney Curtis and John w. Kern.
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