The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-09-04
City Attorney Joss Thinks He Has
Found a Way of Preventing the
Turning OF of Gas.
A CASE THAT IS ANALOGOUS
DECISION OF THE FLORIDA SUPREME
COURT CITED.
An Indiana Decision Is Also Quoted
by the City Attorney-President
Hastings Talks.

be a plaintiff in the suit that IL is to bring
to prevent the Indianapolis Gas Company
from disseminating service TO it's Indianap-
oils consumers on Oct. l. City Attorney
Joss believes that the city may be plain
tiff in relation in such a suit, although,
perhaps, an individual may be joined with
the suit II the city should not be party,
Mr.. Joss does not believe the company
could or would attempt to treat the case
as an Individual one and turn off the gas
Of all consumers except the plaintiff. The
city, Mr.. Joss believes, could secure an
order that would have effect in preventing
such action, for under the code and prac-
tice in this State, one suit. to avoid null
tipncity of suits involving the same ques-
ton. may represent all concerned.
The fact that the city may be a party to
the suit is new. The city's right as a re-
lator in such suits is now before the SUI
preme Court in the mandamus suit brought
by former City Attorney Kern TO require
the Indianapolis Gas Company to live up to
its contract in supplying gas, and which
was argued before the Supreme Court by
Mr.. Kern and Mr.. Joss last may. Since
that argument Mr.. Joss has found an addi-
tional court decision that presents a thor
oughly analogous case, and he has SUBJ
mitted 1t to the court in a supplementary
brief. The mandamus proceeding was de-
cided against the city in the lower court
because it was held that the city could not,
in its relation to the consumers of the
company, become the plaintiff. On this
question the appeal was taken. Mr.. Joss
finds in the Florida Central & Peninsular
Railroad Company against the Mayor, in
habitants and town Of Tavares. Fla, a de-
cision that stands alone as directly bearing
on the question raised by the mandamus
proceeding.
THE FLORIDA CASE.
In the Florida case the town Of Tavares
brought suit for writ of mandamus 20 re-
quire the railway company to erect a sta
ton. The company argued that the proper
relator was the attorney general of the
State, but the court held differently, &C
cording to this language. which Mr. Joss
quotes in his brief:
1.-The accurate practice would have been
simply to Use the corporate name of the
town as being the relator Il Dillon, Nun.
Corp. Sd Ed, Sec. 237. Note u; as it was
make the municipal corporation, town of
Tavares' the relator In the case. But, the
object of the proceeding being to enforce
Il
the rule as above announced, the State is to
be considered as the real party; and as the
town OF Tavares by its corporate name is
included as a relator, we can see no harm
that could result from treating the words
Mayor and inhabitants as immaterial sur
plusage, particularly as the mayor is not
individually names, and no individual in
habitant is named. The suit, according to
the rule, could have been instituted on the
relation of any citizen of the town of Ia
wares, or several of its citizens could have
-
being a corporation of the State having the
general power such to sue and be sued
could also, in such a case, be the reiator in
it's corporate capacity. The object Of the
so long as 1t is instituted and conducted in
the name of the State, who, in such cases
is the real party, Ii Is not matter of so
much moment as to who Is the relator, as
that the proceedings will be quashed be-
cause of any mere technical misj oinSar Of
parties as REALTORS.
A RESTORATION WANTED.
Mr.. Joss argues that in this case an i'm
provement was wanted while In the Indian
apolis gas case a restoration of public serv-
ice previously performed is sought. He con-
| tinues:
'It commands nothing not contemplated
in the original incorporation Of appellee and
performed for many years. When 1t ac-
| cepted its franchise Ii knew that its wells
would give out; 1t knew that 1T was assum-
ing the obligation TO drill new wells; II
knew that the population of the city of In
| dianapolis would increase and that every
| citizen along the lines of its mains had the
right to demand and receive an adequate
| supply of gas. and that Ii would have to lay
| additional mains; 1t knew that it would
| have to constantly renew and restore Its
| facilities TO perform its public duty. AnC
| it did so renew and restore its facilities BY
| drilling new wells and laying new mains fol
| many years. up to 1896, under the allega-
| tions of the alternative writ, admitted by
| demurrer. The writ commands no service
| not previously performed by the defendant
and simply commands restoration of serv.
/ ice which Is owed as a public duty and has
| been withdra wn from the public on account
/ of the private interests of the corporation
| No case has been found to sustain thai
/ right in a corporation.
| Mr.. Joss also quotes a decision in the
| Portland Ind, case involving the duty of
| company to supply gas. In that case the
| Indiana Supreme Court said:
| "In view of these authorities, we are con
| strained to hold taat a natural gas com
! pany, occupying the streets of town oil
| city with its mains, owes II as duty Il
| furnish those who own or occupy tn,
| houses AUDITING on such street, where such
| owners or occupiers make the necessary ar
| rangements to receive ii and comply with
| the reasonable regulations of such com
| pany, such gas as they may require
ARTIFICIAL GAS.