Изображения страниц
PDF
EPUB

judgment rendered in that cause the plain- , Court, since which time no work has been tiff therein appealed to the Supreme Court done on the building, according to the verified of Indiana, wherein, on June 30, 1905, the complaint herein. In the verified motion for judgment was reversed as to the board of a temporary injunction herein it is stated commissioners, and the court below was di- | that since June 30, 1905, and since the order rected to enter a finding in favor of the plain-| granted by the Supreme Court, no work has tiff therein, and to render judgment thereon been done or attempted, and that the strucenjoining the board of commissioners from ture now stands as it was when the workentering into a contract for the construction men left work, June 30, 1905. It appears of a courthouse, and from erecting a court that this structure is an incomplete courthouse or paying out for such purpose any of house two stories in height, without roof, the funds of the county, under and by virtue and unfurnished as to doors and windows of the proceedings of the county council of and otherwise; that the incomplete building December 17, 1904. See State ex rel. Davis is well constructed, according to the plans v. Board of Commissioners (Ind. Sup.) 74 N. and specifications, and would be well adaptE. 1091. In that case the ground upon which ed, if completed, to the purposes of a courtthe court on appeal declared the invalidity house. August 7, 1905, the board of comof the action of the board of commissioners missioners, pursuant to the statute of 1899 appears in the following extract from the section 5594 et seq., Burns' Ann. St. 1901), opinion of the court: “The record discloses presented to the county auditor a verified that the county commissioners of Newton estimate, itemized, of the expenses of the county attempted to make the appropriation board for the calendar year 1906, including, of money for the building of a courthouse by among other items, the following: "First a mere motion and an order made in pur item. Expense of public buildings and insuance thereof. This procedure was in stitutions. (1) Courthouse. Amount required plain violation of the statute. The adoption for the repair and completion of the new courtof the motion is followed by an order spread house, also heating apparatus for the same. upon the record, purporting to authorize the plunbing, wiring, and architects' fee, $19,450; issuance and sale of county bonds to provide electric light fixtures, $800; amount required the money so appropriated. The statute for furniture for new courthouse and vault above quoted requires that the issuance of fixtures, $25,000; architect's fee for plans, county bonds can be authorized only by or specifications, and superintendent work, $250. dinance, and the method adopted in this case

Fifth item: To pay attorney fees was in violation of law, and therefore in and costs in case of the State ex rel. effectual and invalid. It follows that no Davis V. This Board, and other expenses appropriation of money for the erection of a of said suit in circuit and Supreme Court, wurthouse had been made by the county $1,000; to pay [attorney named), employed council of Newton county at the time the by this board, for services before board and appellee board of commissioners was intend county council relating to repair and coming and threatening to enter into a contract pletion of new courthouse, and for services for the erection of such a building, and that in Newton circuit court in relation thereto, said appellee was proceeding without war $500." rant of law, and that such contract, if made, The board in the same instrument prayed would be void.” It may seem bardly neces for authority by ordinance, to issue and sell sary to remark that the judgment which the bonds of Newton county in the sum of $24,500 Supreme Court directed was to be one having to provide funds with which to pay for the reference to the action of the county council repair and completion of the new courthouse, on December 17, 1904, and restraining action electric light fixtures therein, furniture therepursuant thereto because of its declared in for, for fees, costs, and expenses of the case validity, resulting, not from the purpose of of State ex rel. Davis et al. v. Newton County the restrained action, but from the form in Council and others, and fees of the attorney wbich the council proceeded, and that such named, above mentioned, and the fees of the judgment would not affect any subsequent architect for such repairs and completion of action relating to the construction or repair the new courthouse; "the current funds to of public buildings of the county by the ad be derived from taxation and other sources ministrative officers thereof proceeding in of revenue being insufficient for the payment due conformity to the requirements of the of the above-named expenditures. The total statute relating to such matter.

of the indebtedness of said county added to The judgment in the court below, from the above sum will not exceed two per centum wbich the appeal was so taken, being in of the taxable property of said county." Affavor of the defendants in that cause, the terward, August 25, 1905, in vacation, before board of commissioners contracted for the the October term of the court below, the aperection of the courthouse with one Eric pellant filed its verified complaint herein, Lund, who commenced the construction of the signed by the prosecuting attorney as such, building of brick, stone, and mortar, and and by other attorneys, as of counsel, wherecontinued the building thereof until the fur in the appellant sought a temporary injuncther construction was stopped on June 9, tion restraining the members of the board of 1905, by an injunction issued by the Supreme commissioners and the contractor, Lund, from

permitting the public square to be longer of county commissioners above mentioned, obstructed by the structure so erected there and by another ordinance authorized the on, and asked that they be ordered forth borrowing of money to defray such expenses, with to remove the brick, stone, mortar, plas and directed the issuing of bonds of the ter, and other substances constituting the county therefor. Concerning the regularity building, and to restore the public square to of the proceeding of the county council in the condition which existed prior to April 13, these matters on this occasion, no objection 1905, when the construction was commenced, is suggested, and no ground of objection has and that, failing or refusing so to do, the been observed by us. By the motion now in sheriff of that county be ordered forthwith hearing we are asked to enjoin, pending the to procure the necessary tools and labor, and appeal, the board of county commissioners, to remove such obstruction and every part and all persons acting by, through, or under thereof, and to restore the surface of the that board, from entering into any contract public square to the condition in which it was for the completion or repair of the unfinished prior to the date last mentioned, and that structure to be used as a courthouse, and the expense of so doing be taxed as a part from selling any bonds of the county for the of the costs of this suit, and that the county purpose of raising money to defray expenses council and its members, named, be enjoined for the repair or completion of that building, from making any appropriation for the com it being shown in the motion, and further pletion of the unfinished building, or for proved upon the hearing, that the board, by any of the purposes for which an appropria- | advertisement, has given notice of the letting tion was so asked in the estimate of the board of such a contract, and notice of the sale of of commissioners of August 7, 1905, above such county bonds. It appears that, so far mentioned, and that the board of commission as the courthouse has been built, it has cost ers be enjoined from applying any of the $13,745. It is sufficiently shown that in its county funds, then or thereafter appropri erection the county commissioners acted in ated or in their charge, to the expense of com good faith, believing that they were proceedpleting the building or to the expense of re ing according to law, though by the failure moving it, and that on the final hearing the of the county council to make the appropriadefendants, who are the appellees, being the tion and authorize the loan, and direct the board of commissioners and its members, issue of bonds by ordinance, instead of by orthe county council and its members, and der, the action of the board was rendered Lund, the contractor, be perpetually enjoined invalid, as has been decided by the Supreme from any and all of the acts which it was Court. There is no question involved in the herein sought to enjoin temporarily, and that case now here on appeal or in this applicathey be commanded to remove the obstruc tion for a temporary injunction in relation tion, and to restore the surface of the public to the action of the board of commissioners square to its former condition, etc. After in paying for the unfinished structure; that ward, August 29, 1905, in vacation, upon the is, it is not sought to recover the money so hearing of the application for a temporary paid, or to charge any individuals with peinjunction the judge of the court below, hold cuniary liability because of such payment. ing that there was no ground for a temporary The unfinished building, of considerable value, injunction against any of the defendants ex stands upon the public square, the land of cept the board of commissioners, made his or the county appropriated to use as the site der temporarily enjoining that board from of its public office buildings. The person or applying any of the county funds already or persons who placed it there have been paid thereafter appropriated, in their charge or for it, though without authority of law. custody, to the expense of completing, re Such persons or other individuals have no modeling, improving, or in any manner ex rights as owners of the structure as it pending funds of the county upon the un stands, or right to reclaim and remove the finished building, and expressly adjudging materials from the land of the county. If it that the county council was not in any way be admitted that the board of commissioners restrained or enjoined from making appro has authority to cause the building to be torn priations as asked for by the board of com down and its materials to be removed, this missioners, or from authorizing that board would occasion great expense, for the payto issue and sell bonds for the purpose of ment of which no appropriation appears to obtaining funds to build a courthouse, or have been made by the county council. The to remodel or to complete a courthouse. Af county commissioners, having control of the terward, on the final hearing in term, Octo ground, permitted the structure to be placed ber 16, 1905, it was adjudged that the appel where it is, and without formal authority. lant take nothing by its complaint, and that though in good faith the board paid for it. the temporary injunction so granted in vaca Though the payment was unauthorized, yet tion be dissolved. Thereupon the appellant there being no individual owner of the strucbrought this appeal from that judgment. ture, of such permanent character, situated

It further appears that the county council, upon the real estate of the county, it must be at its regular annual meeting in September, treated as within the disposal of the county, 1905, by ordinance made appropriations in through its proper administrative representaaccordance with the estimate of the board tives. Neither the county nor any citizen is

[ocr errors][ocr errors]

case.

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

seeking its removal. It is sought in the name be taxed as part of the costs of suit in this of the state, as plaintiff, to compel its re

Whatever may be said concerning such moval, as constituting a nuisance or purpres

a prayer, which forms no part of the atture, and to restrain the representatives of tempted statement of a cause of action, it is the county from making any beneficial use of impossible to see how any benefit could acit. It does not appear that if the structure

crue from the result to the appellant, the were destroyed, and its materials were re

state, or to any political subdivision of the moved from the public square they would be.

state, or to the citizens thereof, or to any come the property of the state or of any in

individual. Nor is it apparent how any dividual designated, nor is it indicated where

public or private harm will accrue from the the great mass of valuable materials might

proposed beneficial use of the partly conproperly be deposited without infringement of structed building. While the purpose of the public or private rights.

action by the state is to procure the destrucIt appears from the affidavits submitted

tion and removal of the existing building, on this hearing that the structure is so

and to prevent its use in the construction of situated that it does not interfere with the

the contemplated courthouse, and to enjoin use of the old courthouse upon the same

the incurring of expense by the county alone square, or impede business or obstruct the

for completing it, we are now asked to ensquare to the detriment of the public.

join, pending the appeal, the completion of Whatever might be said if it appeared to be

the building and the putting it in such conthe purpose of the board of commissioners to dition that it cannot be regarded in any maintain the structure permanently in its sense as a nuisance or an improper obstrucpresent unfinished condition, or to allow it tion or inclosure of part of the public square, to remain indefinitely and to become ruinous and to enjoin temporarily the borrowing of and decayed, upon the public grounds to

money for the payment of the estimated exwhich all citizens have a right to resort for

penses in completing and in properly furnishlawful purposes, yet, on the contrary, it ing the building. affirmatively appears that while it is now

While an injunction granted by this court simply in the condition of a large unfinished

is merely ancillary, and is awarded, not building, for the preservation of which from

strictly upon principles of equity, but for the effects of the weather proper measures

the purpose of so far preserving the subjecthave been taken, it is the purpose of the matter of litigation in statu quo that our board of commissioners to proceed as speedi- | judgment upon final hearing may not in any ly as is practicable to make a beneficial

respect be ineffectual, yet it is proper for use of the structure by completing its con us to consider the record so far as to construction as a courthouse, much needed, and

template intelligently the effect of such temby so equipping it that it will not have any porary restraint upon the litigating parties; iure, quality of a nuisance, but will be an orna and, though our conclusion may sometimes ILONAT mental and useful public building properly compel us to characterize the whole pro

located. It is not questioned that, if this ceedings, we must not hesitate to refuse to structure were removed, the administrative

do an inequitable or useless or wrongfully able mele officers of the county would have full authori injurious thing by our temporary order. The e landi ty of law, by and through the forms which whole record is before us, and, if it plainly s tbeol they have pursued for the completion of the appear therefrom that the appellant will not IN

building, to construct on the same place a be entitled to relief sought therein upon the new building such as now in contemplation. final hearing, this may be given proper inIt does not clearly appear that the same fluence in deciding upon the application for materials might not, without infraction of a temporary injunction, as indicating that any rule of law, be used in such reconstruc there is no proper occasion for enforcing

tion. It is impossible to recognize how any the preservation of existing conditions pend11. lj public or private interest would be subserved ing the appeal. All the items of expense sisina by destroying this costly structure at great presented by the board of commissioners, to be us expense in money and in time, preparatory through the auditor, to the county council, vrei. to commencing anew, after a long period, related to the completion of the unfinished the par the beneficial public enterprise of providing structure and the proper furnishing thereof

a sufficient courthouse. It is not sought in as a courthouse, except certain items in recil ! this proceeding to recover damages as such, lation to the compensation to attorneys for

or to impose punishment upon any individu services rendered the board, and the expenses als for the creation or maintenance of a of a certain suit in court. In the motion nuisance; but it is proposed that all and in hearing nothing is asked and nothing is

each of the defendants be commanded to re said concerning such fees and expenses. We et

move the structure, and to restore the square have thought it proper not to enter upon to its former condition, and that if the mem any discussion of the question suggested by bers of the board of commissioners, as in counsel as to the propriety or admissibility dividuals, and the contractor, will not do so, of making the state of Indiana the plaintiff the sheriff be ordered to cause the building in such suit, inasmuch as it bas appeared to to be removed and the surface of the square us that the consideration of the merits of to be restored, and that the expense thereof the motion before us requires denial of the

[ocr errors]

bed

relief sought in this application, and the tract, with electric current, upon the terms question as to the want of proper parties for described in the contract, at a certain any of the purposes of the suit may be left special price, to wit, 75 cents per 1000 watts, without discussion at this stage.

measured by watt meter, for a period of 60 The motion for temporary injunction is months, the said Beck agreeing, during said overruled

period, to use enough current, measured by watt meter, to make a monthly bill of one dollar, or pay the amount of said bill, should

sufficient current not be used for the service BECK et al. V. INDIANAPOLIS LIGHT &

monthly, and that no electricity for light, POWER CO. (No. 5,698.)

heat, or power, other than that covered by (Appellate Court of Indiana, Division No. 2. Nov. 28, 1905.)

the contract, should be used upon the said

premises without the written consent of the 1. ELECTRICITY SUPPLY TO CONSUMERS CONTRACTS - CONSTRUCTION – LIQUIDATED

appellee; that immediately, upon the exDAMAGES.

ecution of said contract, appellee's service A stipulation, in a contract for the pur wires were conducted into and upon appelchase of electric current, providing that the lant's said premises, and were connected applicant agrees to use enough current, if it is measured by the watt, to make a monthly bill

with his wires and appliances for the disof a dollar, or pay that amount, should sufficient tribution of current on said premises to current not be used, was a part of the direct points of consumption, and proper meter or obligation of the contract, and did not constitute

meters of appellee were then placed and an agreement for liquidated damages in case of breach.

connected for recording and measuring the 2. SAME-INJUNCTION-CONTRACTS-ENFORCE

current, etc., and appellee began to furnish MENT.

electric current under and pursuant to said Where a contract to purchase electric cur contract, continued to do so until prevented rent for a period of five years provided that,

by the wrongful acts of said Beck, and perin consideration of the rate fixed, the consumer should not use any electric current on the prem

formed and continued to perform all the ises not furnished by complainant, complainant stipulations, terms, and conditions of said was entitled to an injunction to restrain the contract, and was at all times, and still is, consumer from so using current furnished by

able, ready, and willing and offering to perothers, though the contract was not one that a court of equity could compel defendant to

form, for the remaining portion of the period specifically perform.

of the contract, as more fully set forth, all its 3. SAME-ADEQUATE REMEDY AT LAW.

stipulations, terms, and conditions. It is Complainant, a public service corporation, alleged that on the 9th of October, 1903, supplying electricity and bound to supply applicants on certain conditions, contracted to sup

Beck notified appellee that he would disply defendant at a special price per 10,000

continue to receive current from appellee, watts used for a period of five years ; defendant would disconnect the service wires, and agreeing that during such period no current fur would connect the service wires of said Mernished by any other company should be used on the premises, and that he would pay at least

chants' Heat & Light Company with his a dollar a month. Held, that for a breach of

own wires on said premises, and would there. such contract by defendant in disconnecting after receive electric current on his premises complainant's wires, and using electricity fur

from said last-mentioned corporation; that nished by another, complainant had no adequate remedy at law.

upon the same day said Beck did disconnect

appellee's service wires and connect the Appeal from Superior Court, Marion Coun

service wires of said other corporation, so ty; Vinson Carter, Judge.

that appellee could not deliver the electric Suit by the Indianapolis Light & Power

current, etc.; that since said time said Beck Company against William Beck and others.

bas not received, and has refused to receive, From an order overruling a demurrer to the

electric current from appellee, and has rebill, defendants appeal. Case transferred

ceived and accepted, and has threatened, and from Supreme Court. Affirmed.

is threatening, to continue to receive, electric Means & Buenting, for appellants. Scott current from said other corporation, all & Scott, for appellee.

of which is done, and is being done without

the written consent of appellee, and contrary COMSTOCK, J. The averments of the to the express provisions of said contract. complaint show that appellee, Indianapolis Plaintiff avers further that, if said defendLight & Power Company, and appellant ant is permitted to do and to continue to do Merchants' Heat & Light Company are corpo. the above-threatened and wrongful acts, rations under the laws of Indiana, and sever great and irreparable injury will result thereally engaged in the manufacture and produc from to the plaintiff, and that the damages tion of electric current, and the distribution which will be sustained by the plaintiff, by and sale of such currents for light, power, reason of said wrongful acts and breach of and other purposes, in the city of Indian contract, cannot now or at any future period apolis, and are competitors in said business; be accurately or even approximately measthat in August, 1902, appellee and appellant ured, and an action for damages for a Beck entered into a contract, in writing, by breach of said contract would not afford an the terms of which appellee was to supply adequate and complete remedy, because of Beck, in the manner set forth in the con the following facts: First. That this defend

[ocr errors][ocr errors][ocr errors][ocr errors]

ant uses a large amount of current. That the amount used by him varies from hour to hour, day to day, month to month, and year to year. That the amount of current which would be used by the defendant during the remainder of this period could not be ascertained by the appellee, except by the statement of others. The wrongful disconnecting of the plaintiff's service wires, as aforesaid, if permitted, would render it absolutely necessary for the plaintiff to ascertain the quantity of current required or used on said premises from the defendant himself by proceedings in the nature of discovery and accounting, but plaintiff in such proceedings would be compelled to rely upon the statements, accounts, measurements, and records kept by said defendant, and upon the readings and meter measurements made and kept by said defendant competing corporation, and would be compelled to rely upon the defendant keeping and preserving for the full period of said remaining contract term, full, true, and accurate account of measurements of the quantity of current used, and holding the same available for the use of the plaintiff, when needed for the purpose of proof. Second. That, even if the quantity of current which would be required and used by appellant could be ascertained, yet the profit appellee would make in selling the same to appellant could not be ascertained, and that any effort to show the same in a judicial proceeding would be "exceedingly complicated, burdensome, expensive, and inconvenient, and attended with great uncertainty as to correctness of results." Third. The plaintiff does not keep, and believes and avers it would be impracticable and impossible to keep, any system of accounts by which the cost to the defend. ant or the net profit to the plaintiff, at a fixed price upon an ascertained or determined quantity of electric current delivered by it to the defendant Beck, or which should be so delivered during the period of one or more years, could be ascertained or determined. Fourth. Because the cost of producing and delivering current during a specific period could not be ascertained, as this would require a balancing of defendant's accounts with reference to that particular period. Fifth. Because the contract entered into with the defendant is 1 of about 200, longtime contracts of similar character heretofore entered into by and between the plaintiff and certain of its large consumers of electric current in the central business district of said city, and, in consideration of these contracts and to carry out their teims, this appellant has made large additional inrestments in machinery and other equipments necessary to carry on their business. Sixth. Electric current is a product of pecullar nature, which cannot be sold in said city or on any market at a fixed and common market price, such as wheat, corn, etc. The

price of said electric current is fixed, from time to time, by contract with consumers. The electric current which said defendant Beck has so contracted to receive from the plaintiff, and for the furnishing of which the plaintiff has so invested his capital, and which said defendant is now refusing and threatenir

not to receive, plaintiff may not be able to sell to others during the period of said contract, and, if it should offer to sell the same for the same or greater rate than that fixed in said contract, such sale would probably not indemnify the plaintiff in its damages for the threatened breach of said contract.

The prayer is for injunction to prevent appellant from using, on the premises mentioned in the contract, electricity for light, heat, or power other than is furnished by appellee. To this complaint appellant Beck filed a demurrer for want of facts. The demurrer was overruled, and judgment entered on the demurrer, enjoining this appellant as prayed for in the complaint, and for costs. The only error assigned questions the sufficiency of the complaint to state a cause of action. It is contended, first, that the complaint shows that appellee has an adequate remedy at law in an action for damages, and in such a case the injunction will not lle; second, that an injunction will not be granted inerely because the damages are uncertain; third, the contract is not such a one that a court of equity can compel its specific performance, and for that reason it cannot en. force its terms by injunction; fourth, the contract provides for liquidated damages, and an injunction will not lie to prevent the violation of it. We will consider these claims in their inverse order.

Does the contract provide for liquidated damages? The contract contains the following stipulation: “The undersigned applicant hereby agrees to use enough current, in case same is to be measured by the watt, to make a monthly bill of one dollar, or pay the amount of said bill should sufficient current be not used.” This stipulation is a part of the direct obligation of the contract, and cannot be properly construed to be an agreement to pay damages for the breach thereof. In Johnston et al. v. Cowan, 59 Pa. 275, Cowan, by writing, nted to Johnston and hers, as partners, the privilege to take clay from his ground for 20 years, at 12 cents per ton, to pay $150 at the end of every six months, although they should not have then taken away so much clay as would amount to that sum. Held, that the writing was an agreement to pay for the privilege of taking clay, whether exercised or not, and that it was improper to call the fixed sums to be paid in the event of the minimum of clay not being taken liquidated damages. “It is an alternative price to be paid in an event which it was foreseen might happen, not as damages, but in payment for the privilege.

We hold that the contract was not a mere license,

*

« ПредыдущаяПродолжить »