Ky. Heating Co. v. Louisville Gas Co.

Opinion op the coukt by JUDGE DttRELLE. The Louisville Gas Company brought its suit in equity against the Kentucky Heating Company for an injunction to restrain the heating company from sending through any of its pipes laid in the city of Louisville gas other than natural gas, and from sending natural gas through its pipes for any purpose other than heating, and from erecting or operating gas works in the city for the manufacture or sale of illuminating gas for illuminating or heating purposes, and from vending artificial gas for heating or illuminating purposes, etc. To this the heating company filed an answer and counterclaim, praying that the petition be dismissed, and the gas company enjoined from thrPwing a cloud upon the privileges and franchises of the heating company. A reply was filed, a large mass of testimony taken, and upon final hearing the circuit court delivered its opinion, and rendered judgment in 'favor of the gas company upon the question now under consideration. In the' opinion it was held that,' as between the two companies, the gas company had the exclusive right to sell .gas for illuminating purposes; that the heating company, as the owner of the privileges of [437] the Kentucky Rock Gas Company, had the right to conduct natural gas from property owned or controlled by it to, any city wanting the same and assenting to its introduction on terms and conditions to be agreed upon, and also to manufacture and sell fuel gás for heating purposes; that the introduction of natural gas in the city of Louisville for a period of twenty years was consented to by the city council under certain restrictions, one of which was that the gas should be supplied to citizens for heating purposes only; and that this restriction was valid and binding upon the heating company. It was also adjudged that the sale of natural gas for use through the agency of Welsbach burners' for-illumination was a sale for illuminating purposes, and therefore the Kentucky Heating Company, its officers, agents and employes, were perpetually enjoined from distributing or selling within the city of Louisville natural gas, or artificial gas, or a mixture of the two, for illuminating purposes, or to be used for any purpose except for heating purposes, and from distributing or selling natural or artificial gas, or a mixture of the two, for use in the connection with the Welsbach burner, or any other mechanical device or contrivance by means of which illumination is produced. After the entry of the judgment the heating company issued a circular stating that it had been enjoined from selling gas for Welsbach lights; that it should appeal from the decision, and requesting persons using gas in that way to disconnect their pipes, and arrange other means for lighting their houses. Since the appeal in this case was taken, application has been made to this court to punish the heating company and its officers for contempt committed by failing to obey the injunction granted by the circuit court. It is charged that [438] in some sixty business bouses, the street numbers of which are stated, the heating company’s, natural gas is being used in Welsbach burners; that the agent of the heating company goes each month to these various places and takes the state of the meter; and that at said times it is easy for him to see what are the gas fittings and connections, and that there is no gas being furnished but the heating company’s gas, which is being used through Welsbach burners; and that to none of these customers-does the gas company furnish its gas. The response of the heating company and its officers is to the effect that they have no purpose of ignoring or evading the judgment of the court, and that they will faithfully abide by and use-all means in their power to see to it that any order made by the court shall be faithfully obeyed. They aver that, with three or four exceptions, they do not know any customers using the heating company’s gas for purposes of illumination, and that they have no means of ascertaining who, if any, are so using that gas, except- by detailed investigation into the private residences of customers, which they submit they have no power to conduct. It is further urged that, while respondents have reason to believe that some of the company’s customers are making this use of the gas- furnished by the heating company, they have not that certainty of knowledge which would justify them in-turning off the total supply of gas from the houses of such persons, it is asked that, if the court concludes that the gas should be turned off from the houses in which natural gas is used for illumination, the respondents be protected by a specific order indicating the houses from which the gas supply should be turned off. There are other matters contained in the response, which seem to us to be principally argument directed to the merits of the case. The [439] merits of tbe case are not now before us, nor under consideration. The simple question before us is whether the heating company and its officers are selling natural gas to be used to produce illumination. We think the response itself, when considered in the light most favorable to respondents, shows on its face that they are selling natural gas, or a mixture of natural and artificial gas, to persons who they know are using it to obtain illumination; and this is a sale for illuminating purposes. Giving the fullest credit to the statements of fact made by the respondents, it appears that no effort has been made to restrict the use of the gas sold by the heating company to its customers to heating purposes only. We think that full and complete obedience to the injunction of the circuit court requires that such effort should be made. When this company itself sold its gas for the two purposes of heating and illumination -at different rates, it appears to have experienced no difficulty in ascertaining in what houses its gas was used for illumnination, or in collecting for such gas at the higher rate. We can not see that there should be greater difficulty in ascertaining which of its customers1 use the gas furnished to them for lighting purposes, and in putting a stop to such use. We do not mean to say that the company is required to adopt means which shall be absolutely perfect. It may be that some of its gas was surreptitiously used for lighting purposes when it had the double rate. It may be that this can not be entirely prevented now. But the order of injunction, in our view, requires that the effort to render obedience to it shall be fair and full, and no such effort has been shown. As a matter of course, this court has no intention of entering a specific order directing what particular [440] bouses the heating eompan.y’s gas shall be cut off from. That is a matter for the respondents to attend to. We see little merit iñ the 'contention that the customers who are thus using the gas are entitled to be heard. The heating .company is supposed to sell them gas for heating purposes. Surely, it has no agreement with them that it may be used for illuminating- purposes. It has the right to insist that its gas shall be used only for the purposes for which, under the judgment, it has the right to sell it. It has the right to prevent them using it for any other purposes. As a practical question, it has succeeded in so doing heretofore, and it can do so again. The judgment of the circuit court, until and unless it shall be reversed, remains the law, and must be obeyed as such, both in letter and spirit.' Upon the present proceeding no argument addressed to the merits of the case or the correctness of that judgment can or should be considered. The response is adjudged insufficient, and the rule made absolute, but the question of the penalty to be imposed is reserved, to be considered hereafter upon motionvof appellee.