judgment rendered in that cause the plaintiff therein appealed to the Supreme Court of Indiana, wherein, on June 30, 1905, the judgment was reversed as to the board of commissioners, and the court below was directed to enter a finding in favor of the plaintiff therein, and to render judgment thereon enjoining the board of commissioners from entering into a contract for the construction of a courthouse, and from erecting a courthouse or paying out for such purpose any of the funds of the county, under and by virtue of the proceedings of the county council of December 17, 1904. See State ex rel. Davis v. Board of Commissioners (Ind. Sup.) 74 N. E. 1091. In that case the ground upon which the court on appeal declared the invalidity of the action of the board of commissioners appears in the following extract from the opinion of the court: "The record discloses that the county commissioners of Newton county attempted to make the appropriation of money for the building of a courthouse by a mere motion and an order made in pursuance thereof. This procedure was in plain violation of the statute. The adoption of the motion is followed by an order spread upon the record, purporting to authorize the issuance and sale of county bonds to provide the money so appropriated. The statute above quoted requires that the issuance of county bonds can be authorized only by ordinance, and the method adopted in this case was in violation of law, and therefore ineffectual and invalid. It follows that no appropriation of money for the erection of a courthouse had been made by the county❘ council of Newton county at the time the appellee board of commissioners was intending and threatening to enter into a contract for the erection of such a building, and that said appellee was proceeding without warrant of law, and that such contract, if made, would be void." It may seem hardly necessary to remark that the judgment which the Supreme Court directed was to be one having reference to the action of the county council on December 17, 1904, and restraining action pursuant thereto because of its declared invalidity, resulting, not from the purpose of the restrained action, but from the form in which the council proceeded, and that such judgment would not affect any subsequent action relating to the construction or repair of public buildings of the county by the administrative officers thereof proceeding in due conformity to the requirements of the statute relating to such matter.

The judgment in the court below, from which the appeal was so taken, being in favor of the defendants in that cause, the board of commissioners contracted for the erection of the courthouse with one Eric Lund, who commenced the construction of the building of brick, stone, and mortar, and continued the building thereof until the further construction was stopped on June 9, 1905, by an injunction issued by the Supreme

Court, since which time no work has been done on the building, according to the verified complaint herein. In the verified motion for a temporary injunction herein it is stated that since June 30, 1905, and since the order granted by the Supreme Court, no work has been done or attempted, and that the structure now stands as it was when the workmen left work, June 30, 1905. It appears that this structure is an incomplete courthouse two stories in height, without roof, and unfurnished as to doors and windows and otherwise; that the incomplete building is well constructed, according to the plans and specifications, and would be well adapted, if completed, to the purposes of a courthouse. August 7, 1905, the board of commissioners, pursuant to the statute of 1899 (section 5594 et seq., Burns' Ann. St. 1901), presented to the county auditor a verified estimate, itemized, of the expenses of the board for the calendar year 1906, including, among other items, the following: "First item. Expense of public buildings and institutions. (1) Courthouse. Amount required for the repair and completion of the new courthouse, also heating apparatus for the same. plumbing, wiring, and architects' fee, $19,450; electric light fixtures, $800; amount required for furniture for new courthouse and vault fixtures, $25,000; architect's fee for plans, specifications, and superintendent work, $250.

Fifth item: To pay attorney fees and costs in case of the State ex rel. Davis v. This Board, and other expenses of said suit in circuit and Supreme Court, $1,000; to pay [attorney named], employed by this board, for services before board and county council relating to repair and completion of new courthouse, and for services in Newton circuit court in relation thereto, $500."

The board in the same instrument prayed for authority by ordinance, to issue and sell bonds of Newton county in the sum of $24,500 to provide funds with which to pay for the repair and completion of the new courthouse, electric light fixtures therein, furniture therefor, for fees, costs, and expenses of the case of State ex rel. Davis et al. v. Newton County Council and others, and fees of the attorney named, above mentioned, and the fees of the architect for such repairs and completion of the new courthouse; "the current funds to be derived from taxation and other sources of revenue being insufficient for the payment of the above-named expenditures. The total of the indebtedness of said county added to the above sum will not exceed two per centum of the taxable property of said county." Afterward, August 25, 1905, in vacation, before the October term of the court below, the appellant filed its verified complaint herein, signed by the prosecuting attorney as such, and by other attorneys, as of counsel, wherein the appellant sought a temporary injunction restraining the members of the board of commissioners and the contractor, Lund, from

permitting the public square to be longer obstructed by the structure so erected thereon, and asked that they be ordered forthwith to remove the brick, stone, mortar, plaster, and other substances constituting the building, and to restore the public square to the condition which existed prior to April 13, 1905. when the construction was commenced, and that, failing or refusing so to do, the sheriff of that county be ordered forthwith to procure the necessary tools and labor, and to remove such obstruction and every part thereof, and to restore the surface of the public square to the condition in which it was prior to the date last mentioned, and that the expense of so doing be taxed as a part of the costs of this suit, and that the county council and its members, named, be enjoined from making any appropriation for the completion of the unfinished building, or for any of the purposes for which an appropriation was so asked in the estimate of the board of commissioners of August 7, 1905, above mentioned, and that the board of commissioners be enjoined from applying any of the county funds, then or thereafter appropriated or in their charge, to the expense of completing the building or to the expense of removing it, and that on the final hearing the defendants, who are the appellees, being the board of commissioners and its members, the county council and its members, and Lund, the contractor, be perpetually enjoined from any and all of the acts which it was herein sought to enjoin temporarily, and that they be commanded to remove the obstruction, and to restore the surface of the public square to its former condition, etc. Afterward, August 29, 1905, in vacation, upon the hearing of the application for a temporary injunction the judge of the court below, holding that there was no ground for a temporary injunction against any of the defendants except the board of commissioners, made his order temporarily enjoining that board from applying any of the county funds already or thereafter appropriated, in their charge or custody, to the expense of completing, remodeling, improving, or in any manner expending funds of the county upon the unfinished building, and expressly adjudging that the county council was not in any way restrained or enjoined from making appropriations as asked for by the board of commissioners, or from authorizing that board to issue and sell bonds for the purpose of obtaining funds to build a courthouse, or to remodel or to complete a courthouse. terward, on the final hearing in term, October 16, 1905, it was adjudged that the appellant take nothing by its complaint, and that the temporary injunction so granted in vacation be dissolved. Thereupon the appellant brought this appeal from that judgment.

Af

It further appears that the county council, at its regular annual meeting in September, 1905, by ordinance made appropriations in accordance with the estimate of the board

of county commissioners above mentioned, and by another ordinance authorized the borrowing of money to defray such expenses, and directed the issuing of bonds of the county therefor. Concerning the regularity of the proceeding of the county council in these matters on this occasion, no objection is suggested, and no ground of objection has been observed by us. By the motion now in hearing we are asked to enjoin, pending the appeal, the board of county commissioners, and all persons acting by, through, or under that board, from entering into any contract for the completion or repair of the unfinished structure to be used as a courthouse, and from selling any bonds of the county for the purpose of raising money to defray expenses for the repair or completion of that building, it being shown in the motion, and further proved upon the hearing, that the board, by advertisement, has given notice of the letting of such a contract, and notice of the sale of such county bonds. It appears that, so far as the courthouse has been built, it has cost $13,745. It is sufficiently shown that in its erection the county commissioners acted in good faith, believing that they were proceeding according to law, though by the failure of the county council to make the appropriation and authorize the loan, and direct the issue of bonds by ordinance, instead of by order, the action of the board was rendered invalid, as has been decided by the Supreme Court. There is no question involved in the case now here on appeal or in this application for a temporary injunction in relation to the action of the board of commissioners in paying for the unfinished structure; that is, it is not sought to recover the money so paid, or to charge any individuals with pecuniary liability because of such payment. The unfinished building, of considerable value, stands upon the public square, the land of the county appropriated to use as the site of its public office buildings. The person or persons who placed it there have been paid for it, though without authority of law. Such persons or other individuals have no rights as owners of the structure as it stands, or right to reclaim and remove the materials from the land of the county. If it be admitted that the board of commissioners has authority to cause the building to be torn down and its materials to be removed, this would occasion great expense, for the payment of which no appropriation appears to have been made by the county council. The county commissioners, having control of the ground, permitted the structure to be placed where it is, and without formal authority. though in good faith the board paid for it. Though the payment was unauthorized, yet there being no individual owner of the structure, of such permanent character, situated upon the real estate of the county, it must be treated as within the disposal of the county, through its proper administrative representatives. Neither the county nor any citizen is

seeking its removal. It is sought in the name of the state, as plaintiff, to compel its removal, as constituting a nuisance or purpresture, and to restrain the representatives of the county from making any beneficial use of it. It does not appear that if the structure were destroyed, and its materials were removed from the public square they would become the property of the state or of any individual designated, nor is it indicated where the great mass of valuable materials might properly be deposited without infringement of public or private rights.

It appears from the affidavits submitted on this hearing that the structure is so situated that it does not interfere with the use of the old courthouse upon the same square, or impede business or obstruct the square to the detriment of the public. Whatever might be said if it appeared to be the purpose of the board of commissioners to maintain the structure permanently in its present unfinished condition, or to allow it to remain indefinitely and to become ruinous and decayed, upon the public grounds to which all citizens have a right to resort for lawful purposes, yet, on the contrary, it affirmatively appears that while it is now simply in the condition of a large unfinished building, for the preservation of which from the effects of the weather proper measures have been taken, it is the purpose of the board of commissioners to proceed as speedily as is practicable to make a beneficial use of the structure by completing its construction as a courthouse, much needed, and by so equipping it that it will not have any quality of a nuisance, but will be an ornamental and useful public building properly located. It is not questioned that, if this structure were removed, the administrative officers of the county would have full authority of law, by and through the forms which they have pursued for the completion of the building, to construct on the same place a new building such as now in contemplation. It does not clearly appear that the same materials might not, without infraction of any rule of law, be used in such reconstruction. It is impossible to recognize how any public or private interest would be subserved by destroying this costly structure at great expense in money and in time, preparatory to commencing anew, after a long period, the beneficial public enterprise of providing a sufficient courthouse. It is not sought in this proceeding to recover damages as such, or to impose punishment upon any individuals for the creation or maintenance of a nuisance; but it is proposed that all and each of the defendants be commanded to remove the structure, and to restore the square to its former condition, and that if the members of the board of commissioners, as individuals, and the contractor, will not do so, the sheriff be ordered to cause the building to be removed and the surface of the square to be restored, and that the expense thereof

be taxed as part of the costs of suit in this case. Whatever may be said concerning such a prayer, which forms no part of the attempted statement of a cause of action, it is impossible to see how any benefit could accrue from the result to the appellant, the state, or to any political subdivision of the state, or to the citizens thereof, or to any individual. Nor is it apparent how any public or private harm will accrue from the proposed beneficial use of the partly constructed building. While the purpose of the action by the state is to procure the destruction and removal of the existing building, and to prevent its use in the construction of the contemplated courthouse, and to enjoin the incurring of expense by the county alone for completing it, we are now asked to enjoin, pending the appeal, the completion of the building and the putting it in such condition that it cannot be regarded in any sense as a nuisance or an improper obstruction or inclosure of part of the public square, and to enjoin temporarily the borrowing of money for the payment of the estimated expenses in completing and in properly furnishing the building.

While an injunction granted by this court is merely ancillary, and is awarded, not strictly upon principles of equity, but for the purpose of so far preserving the subjectmatter of litigation in statu quo that our judgment upon final hearing may not in any respect be ineffectual, yet it is proper for us to consider the record so far as to contemplate intelligently the effect of such temporary restraint upon the litigating parties; and, though our conclusion may sometimes compel us to characterize the whole proceedings, we must not hesitate to refuse to do an inequitable or useless or wrongfully injurious thing by our temporary order. The whole record is before us, and, if it plainly appear therefrom that the appellant will not be entitled to relief sought therein upon the final hearing, this may be given proper influence in deciding upon the application for a temporary injunction, as indicating that there is no proper occasion for enforcing the preservation of existing conditions pending the appeal. All the items of expense presented by the board of commissioners, through the auditor, to the county council, related to the completion of the unfinished structure and the proper furnishing thereof as a courthouse, except certain items in relation to the compensation to attorneys for services rendered the board, and the expenses of a certain suit in court. In the motion in hearing nothing is asked and nothing is said concerning such fees and expenses. We have thought it proper not to enter upon any discussion of the question suggested by counsel as to the propriety or admissibility of making the state of Indiana the plaintiff in such suit, inasmuch as it has appeared to us that the consideration of the merits of the motion before us requires denial of the

A stipulation, in a contract for the purchase of electric current, providing that the applicant agrees to use enough current, if it is measured by the watt, to make a monthly bill of a dollar, or pay that amount, should sufficient current not be used, was a part of the direct obligation of the contract, and did not constitute an agreement for liquidated damages in case of breach.

2. SAME INJUNCTION-CONTRACTS-ENFORCEMENT.

Where a contract to purchase electric current for a period of five years provided that, in consideration of the rate fixed, the consumer should not use any electric current on the premises not furnished by complainant, complainant was entitled to an injunction to restrain the consumer from so using current furnished by others, though the contract was not one that a court of equity could compel defendant to specifically perform.

3. SAME-ADEQUATE REMEDY AT LAW.

Complainant, a public service corporation, supplying electricity and bound to supply applicants on certain conditions, contracted to supply defendant at a special price per 10,000 watts used for a period of five years; defendant agreeing that during such period no current furnished by any other company should be used on the premises, and that he would pay at least a dollar a month. Held, that for a breach of such contract by defendant in disconnecting complainant's wires, and using electricity furnished by another, complainant had no adequate remedy at law.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Suit by the Indianapolis Light & Power Company against William Beck and others. From an order overruling a demurrer to the bill, defendants appeal. Case transferred from Supreme Court. Affirmed.

Means & Buenting, for appellants. Scott & Scott, for appellee.

COMSTOCK, J. The averments of the complaint show that appellee, Indianapolis Light & Power Company, and appellant Merchants' Heat & Light Company are corporations under the laws of Indiana, and severally engaged in the manufacture and production of electric current, and the distribution and sale of such currents for light, power, and other purposes, in the city of Indianapolis, and are competitors in said business; that in August, 1902, appellee and appellant Beck entered into a contract, in writing, by the terms of which appellee was to supply Beck, in the manner set forth in the con

tract, with electric current, upon the terms described in the contract, at a certain special price, to wit, 75 cents per 1000 watts, measured by watt meter, for a period of 60 months, the said Beck agreeing, during said 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 monthly, and that no electricity for light, heat, or power, other than that covered by the contract, should be used upon the said premises without the written consent of the appellee; that immediately, upon the execution of said contract, appellee's service wires were conducted into and upon appellant's said premises, and were connected with his wires and appliances for the distribution of current on said premises to points of consumption, and proper meter or meters of appellee were then placed and connected for recording and measuring the current, etc., and appellee began to furnish electric current under and pursuant to said contract, continued to do so until prevented by the wrongful acts of said Beck, and performed and continued to perform all the stipulations, terms, and conditions of said contract, and was at all times, and still is, able, ready, and willing and offering to perform, for the remaining portion of the period of the contract, as more fully set forth, all its stipulations, terms, and conditions. It is alleged that on the 9th of October, 1903, Beck notified appellee that he would discontinue to receive current from appellee, would disconnect the service wires, and would connect the service wires of said Merchants' Heat & Light Company with his own wires on said premises, and would thereafter receive electric current on his premises from said last-mentioned corporation; that upon the same day said Beck did disconnect appellee's service wires and connect the service wires of said other corporation, so that appellee could not deliver the electric current, etc.; that since said time said Beck has not received, and has refused to receive, electric current from appellee, and has received and accepted, and has threatened, and is threatening, to continue to receive, electric current from said other corporation, all of which is done, and is being done without the written consent of appellee, and contrary to the express provisions of said contract. Plaintiff avers further that, if said defendant is permitted to do and to continue to do the above-threatened and wrongful acts, great and irreparable injury will result therefrom to the plaintiff, and that the damages which will be sustained by the plaintiff, by reason of said wrongful acts and breach of contract, cannot now or at any future period be accurately or even approximately measured, and an action for damages for a breach of said contract would not afford an adequate and complete remedy, because of the following facts: First. That this defend

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 defendant 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 terms, this appellant has made large additional investments in machinery and other equipments necessary to carry on their business. Sixth. Electric current is a product of peculiar 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 threatening 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 lie; second, that an injunction will not be granted nerely 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, granted to Johnston and others, 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,