State ex rel. Kells v. New Orleans Gas Light Co.

The opinion of the court was delivered by Breaux, J. Relator desires to use gas in his office for heating purposes and to that end sues for a writ of mandamus against the defendant company to compel it to furnish him with gas and -a meter to record the quantity used. The company has a franchise and is, in consequence, bound to furnish gas for either lighting or fuel purposes to consumers along i;s line of mains. Relator is a dentist and fuel is necessary in his office. He sets out that his office is properly piped for fuel gas and that he has received' a certificate from a competent plumber and that it is in proper condi [68] tion. He also says that he does not use gas for lighting purposes 'find that he only proposes to use it for heating purposes; that the respondent company discriminates against him as it furnishes others with fuel gas. He, in support of his application, invokes the charter of the company by the terms of which it is made its duty to supply every one with gas who pays the usual price. The respondent interposed the objection of no cause of action disclosed, and in the second place it pleaded the terms of its charter, and alleged, in substance, that the gas manufactured is the same whether for ’fuel or lighting purposes, and that in order to increase the consumption, under explicit regulations, it supplies gas for fuel at reduced rates, and that resulting increase of consumption enables it to deliver the gas at lower rates. The respondent company also alleges that it delivers gas at reduced rates only to those who put in distinct meters and systems of piping, one for the lighting and the other for the heating and cooking, and that only where there are two systems of piping, as just stated, gas for cooking and heating is furnished at reduced rates. The testimony shows that the relator had been a consumer of illuminating gas. He had the meter removed and discontinued the service. Subsequently he applied to the company for heating gas and for a meter. The company, alleges respondent, is under the obligation to supply every one with- gas who conforms with its reasonable regulations and pays the price of the gas. It offers gas to its customers at a heating power for use in grates and cooking stoves at a reduced rate of fifty per cent. It has adopted general rules .as to pipes and meters. The consumer who has complied with these rules should have, and we think he has, a remedy more speedy than the ordinary. No good reason suggests itself why mandamus should not go to the company, when it is evident that the one who desires to use gas is entitled to the light for which he seeks or to the heat he needs for cooking and other purposes for which gas is utilized. While mandamus will not lie to enforce mere contract obligations, it will issue to a corporation when the duty of the respondent is plainly and positively stated as in the case before us. One of the objections urged is that the company owns large interests [69] and that its control over its business should not be interfered with. Erom that point of view an issue of considerable importance arises. We readily understand that no action should be taken in its regard and no remedy sanctioned that would interfere with its operations or lessen the security it should have in compelling its customers to comply with their obligations to the company. Mandamus will issue to compel a qwosi-public corporation to give equal service to all. Telephone Co. vs. Telegraph Co., 52 Ann. 1850. The writ of mandamus, if the duty of the company to the public or to any one of the public is manifest, cannot have the effect which relator seems to apprehend. Under the Common Law mandamus would issue in such eases. Codal provision as to mandamus being broader than it is at Common Law, as has been repeatedly decided by this court, mandamus is the remedy to compel performance of the duty for which relator asks. Consumers are entitled to gas at reduced rates for fuel purposes. We understand that its charter provides that it shall be its privilege to furnish gas as before mentioned. This implies its exercise to all alike who conform with reasonable requirements. The evidence of the respondent company does not establish that there is any necessity of putting in separate pipes and meters. Its interest can as well be safeguarded by permitting the consumer of gas for heating and cooking purposes to put only one set of pipes and a meter as by requiring, as the respondent company asks, that a double set of pipes be put in. There is no difference, we are led to believe, between pipes and meters for illuminating purposes and those for heating purposes. The company, none the less, requires both when gas for heating purposes is used. After the double set is in, the consumer can continue the use of one set and take out the other, although originally he must put in the two. Question — “Now, then, to sum up, Mr. Jones, I understand that if Dr. Kells put in other pipes side by side, that then you would give him fuel gas rates?” Answer — “Tes, sir.” Q. — “If he discontinued the lighting gas, you would still give him the fuel gas rates?” A. — “Through the other pipes, yes, sir.” Q. — “Then you would object to his taking out the pipes formerly put there for illuminating ?” A. — “And leaving those-” [70] Q.- — -“Leaving- the others only?” A. — “No, sir. We could not object to that.” Mr. Jones is the secretary of the company. The rule that permits the consumer to take out one of his pipes and the meter with those pipes, or to stop using them, is not consistent with the rule that-compels him when he begins to use gas for cooking and heating to put in two sets of pipes and meters. If he can take out one of the sets and continue to use the other, he should have the right to put in only one set. As one has 'the right take out one of his pipes, he should have the equal right to put in only one of the pipes for gas to be used in heating or cooking. The company’s interest is as well safeguarded when one set of pipe3 is put in as when there are two, as we gather from the evidence.. The evidence discloses that there -are business offices where gas is used for fuel purposes exclusively through a separate system. We have not found that the company’s interest is to be less safeguarded in this case than it is in others where a new pipe and meter is put in. While we think that rule of equality and uniformity of service is ithe purpose -.-f the company, as a matter of judgment in this instance with-the evidence before us we are of the opinion that the relator is entitled to the gas he seeks to have supplied. More than one year has elapsed since this case has been tried in the District Court. Changes may have taken place in that time. Besides, the rules of the company that are reasonable and general should be complied with. We understand that the company requires! (rightly, we think)i'the gas fitter to go over the work in accordance with the company’s regulations and to make his. report. Then an inspector is sent to make an inspection. This requirement should be complied with in this case, and after a proper report by the plumber and the report of the inspector, then the judgment appealed from should be complied with, for relator is entitled to gas for heating purposes without first having to put in another.set of pipes. The judgment appealed from is amended so as to require sufficient examination of relator’s line of pipes by -a plumber and a report to the company upon which a certificate is to be issued and in all other respects the company’s interest is to be safeguarded without requiring relator to put in a separate set of pipes to use fuel gas exclusively. The judgment -as amended is affirmed. Rehearing refused. The Chief Justice and Mr. Justice Monroe dissent.