« AnteriorContinuar »
actual facts showing the effect of operation on its plant and the furnishing of gas upon the terms prescribed by this ordinance. The burden is upon the company to show the court that the price is unreasonable, not merely that there is a possibility or probability that it will become so. If there was a change in the price required by the producing company, such evidence should be in the record. Evidence of conditions, not only when the ordinance was passed, but subsequent thereto, was admissible and would have been most helpful to the court in solving the problem presented in a controversy of this character. City of Knoxville v. Knoxville Water Co., supra.
We find in the record no possible basis for the claim that the rate fixed by this ordinance does not yield a fair and just compensation to the plaintiff in error under the conditions obtaining in 1911. The following cases deal instructively with the question of what is adequate compensation: Lincoln Gas & Elec. Light Co. v. Lincoln, 182 Fed. Rep., 926; Willcox v. Consolidated Gas Co., supra, and Cedar Rapids Water Co. v. Cedar Rapids, supra.
However, it is urged by plaintiff in error that in view of the fact that it is now a distributing company only and procures its supply of gas of a producing company, and that its contract with such company for gas delivered to its lines, upon a percentage basis of meter readings, would expire two years after the passage of said ordinance and three years before the end of the period covered thereby, a proper rate cannot be ascertained without inquiry and determination of the cost of producing gas and transporting it to the lines of the plaintiff in error. Upon this theory much evidence was adduced tending to show that the Logan company, with which the plaintiff in error has a contract for its supply of gas, for various reasons, cannot furnish its product in the future on the terms of its former contract, and included evidence of the value of the plant of the Logan company and computations to ascertain what rate would insure it a fair compensation for its share of the service rendered.
An excursion into a vast field, thus invited, may have been justified under some circumstances, but surely not under the conditions disclosed by this record. In the absence of evidence to the contrary, the court was justified in assuming that the contract price for gas remained the same and need not anticipate a condition which might or might not obtain in the future.
The rule that should guide judicial review of rate-making legislation is thus stated in 3 Dillon on Municipal Corporations (5 ed.),
Sec. 1327, p. 2251: "The judiciary ought not to annul or set aside rates established by legislative sanction unless they are proved or shown to be such as to make their enforcement equivalent to the taking of property for public use without such compensation as, under all the circumstances, is just both to the owner and to the public; that is, judicial interference should not occur unless the case presents clearly such a violation of the rights of property under the form of regulation as to satisfy the court that the rates prescribed will have the effect to deny to the company reasonable compensation for its services.”
The evidence disclosed in the record does not show that the rates fixed by this ordinance will result in a violation of the rights of property of the plaintiff in error or that it will have the effect to deprive it of reasonable compensation for its services, and, therefore, fails to establish a present right of plaintiff in error to exemption from compliance with the terms of said ordinance. Said company will, therefore, be required to abide the test of actual experience under the rate fixed by this ordinance, and when certainty rather than prophecy may be obtained, it will have the right to present its case upon actual facts and conditions as they may then be shown to exist.
It follows that the judgment of the court of appeals is affirmed.
Johnson, Donahue, Wanamaker, Newman and Jones, JJ., concur.
Tuesday, Feb. 1st, 1916. 15019—The Moody & Thomas Milling Co. vs. City of Akron, et al.
15020—The Cleveland-Akron Bag Co. vs. The City of Akron, et al.
It appearing from the Record that the court of Appeals found from the evidence, that the plaintiff has in no manner or degree suffered any injury or damage or impairment of its rights, by anything the City of Akron has done or intends to do, that in the necessary and proper operation of the water works system of said City of Akron, in supplying itself and its inhabitants with water from said stream, no actual or substantial injury, loss or damage is likely to occur to the plaintiff; that the water impounded by the City of Akron in wet seasons does not de
prive the plaintiff in error of sufficient water to operate its mill to its fullest capacity, and the water so impounded by the City of Akron, so far as plaintiff is concerned, would go to waste and be unused by it. That the water stored in the wet season, and drawn by the city from its reservoir, and discharged into the river above plaintiff's mill, will materially increase the natural flow of said stream in dry seasons, to the benefit of the plaintiff in error, and not to its prejudice.
And it appearing from these findings of fact, that the plaintiff in error has not been deprived of any property, either with or without due process of law, that it has not in any manner or degree, suffered any injury, or damage, or impairment of its rights, by anything the defendant in
error has done or intends to do; that therefore the record in this case presents no constitutional question arising under the constitution of this state or the constitution of the United States for the consideration of this Court, and there being no constitutional question involved in this case, this court is without jurisdiction in the premises.
It is, therefore, ordered and adjudged, that the petition in error be dismissed, at the costs of plaintiff in error."
It is ordered and adjudged by this Court, that the judgment of the said Court of Appeals be, and the same is hereby, affirmed; for the reason that it is shown by the Record that the deed by which the premises described in the petition were conveyed to the plaintiff's granton contained covenants, the acceptance of which by the grantee operated to waive the legal objection to the proceedings which are referred to, and further that said deed contained a clause excepting from the covenants of warranty therein all taxes and assessments on said premises that become due and payable after this date, the due payment of all of which taxes and assessments is assumed by the said grantee, who, by accepting this deed, promises and agrees duly to pay the same as a part of the purchase price for said premises.
It is further ordered and adjudged that the defendants in error recover from the plaintiff in error their costs herein and in the courts below.
Feb. 1st, 1916. 150254Peter E. Boettler et al vs. The City of Akron, Summit County.
It appearing from the record that the court of appeals found from the evidence, that the defendant in error, the said City of Akron, in the exercise of its riparian rights, has not deprived the plaintiffs of any of their legal rights as such riparian owners; that it has not invaded nor abridged any such rights of the plaintiffs; that it has not threatened, and is not about to exercise its riparian rights in such manner as will in the future, as claimed by the plaintiffs in their petition, deprive the plaintiffs of their legal rights nor invade nor abridge the same.
And it appearing from these findings of fact, that the plaintiffs in error have not been deprived of any property, either with or without due process of law, that they have not in any manner or degree suffered any injury, damage, impairment of their rights by anything the defendant in error has done or intends to do, -that, therefore, the record in this case presents no constitutional question arising under the constitution of this state or the constitution of the United States, for the consideration of this court, and there being no constitutional question involved in this case, this court is without jurisdiction in the premises.
Tuesday, February 15, 1916.
MOTION DOCKET. 8519. The State ex rel, Phelps vs. Merle N. Poe, Prosecuting Attorney. (On rehearing.) Motion for an order directing the Court of Appeals of Hancock county to certify its record. Overruled.
9007. A. A. Crawford et al vs. Jacob Wiedemeyer et al. Motion by defendant to dismiss cause No. 15017 on the general docket. Overruled.
9010. The State of Ohio et al. vs. John M. Dugan. Motion for leave to file petition in error and for an order directing the Court of Appeals of Hamilton county to certify its record. Overruled.
9013. The State ex rel. Frank F. Gentsch vs. A. J. Hirstins et al. Motion for an order directing the Court of Appeals of Cuyahoga county to certify its record. Overruled. 9018. Joseph
W. Houseman VS. The Ashland Bank Savings Co. et al. Motion for an order directing the Court of Appeals of Ashland county to certify its record. Overruled.
9023. The Maumee Valley Railway & Light Co. vs. Kenneth Hanaway, a minor, et al. Motion by Kenn. Haraway to dismiss petition in error in cause No. 14138 on the General Docket. Motion sustained.
It is, therefore, ordered and adjudged, that the petition in error be dismissed, at the costs of plaintiff in error."
Feb. 1st, 1916. 15023_James M. Poulson vs. The City of Akron, et al. Summit County Judgment affirmed. See journal en
9024. The Maumee Valley Rail. ways & Light Co. vs. Kenneth Hanaway, a minor, et al. Motion for an order directing the Court of Appeals of Lucas county to certify its record. Overruled.
9025. The Toledo Railways & for an order directing the Court of Light Co. vs. Frank Andrews. Motion Appeals of Lucas county to certify its record. Overruled.
9026. Annie Laws et al. vs. James M. Morley et al., Admrs. Motion for an order directing the Court of Appeals of Hamilton county to certify its record. Overruled.
9027. Naomi Kolb Sheridan VS. Mayme Kolb Schinkal et al. Motion for an order directing the Court of Appeals of Hamilton county to certify its record. Overruled.
9029. Edward Kalish et al., as partnership, Vs. M. Tratuik. Motion for an order directing the Court of Appeals of Cuyahoga county to certify its record. Overruled.
9030. The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. vs. E. W. Johnson, Admr. Motion for an order directing the Court of Appeals of Madison county to certify its record. Overruled.
9031. David Rohrer vs. The State of Ohio. Motion for leave to file a
petition in error to the Court of Appeals of Montgomery county. Overruled.
GENERAL DOCKET. 14707. The Toledo Railways & Light Co. vs. George Paulin. Lucas. Judgment affirmed. Opinion.
14776. The National Fire Insurance Co. vs. A. B. Dennison. Fairfield. Judgment reversed. Cause remanded. Opinion.
14996. The Harden-Wyandot Lighting Co. vs. The Village of Upper Sandusky. Wyandot. Judgment affirmed. Opinion.
15042. The State of Ohio ex rel. Marcellus A. Lander vs. Charles T. Prestein, Auditor of Cuyahoga county. Cuyahoga. Judgment affirmed. Opinion.
15069. In re-application of Henry S. Rosenthal for writ of habeas corpus. Henry S. Rosenthal vs. Charles C. Cooper, Sherift of Hamilton county, Ohio. Petition dismissed without prejudice at costs of Henry S. Rosenthal.
15120. The State of Ohio ex rel. James Ross and John W. McCafferty vs. A. V. Donahey, Auditor of State. in Mandamus. Writ to issue. Opiz ion.
SECRETARY OF STATE
NEW INCORPORATIONS The Adams County Anti-Tuberculo- pany, Columbus, $250,000. T. J. Mills, sis Company, Peebles, $10,000. James F. L. Woodbridge, Chas. A. Wobbe, G. Whittenmyer, Pearl J. Whitten- S. W. Kirts, J. O. Crawshaw. myer, Leslie D. Whittenmyer, John E. The Lafayette Stamping & EnamelWhittenmyer, Albion Z. Blair.
ing Company, West Lafayette, $50,000. The H. & G. Motor Car Company, H. R. McCurdy, L. P. Gallagher, M. D. Cleveland, $10,000. H. H. Gegelein, A. Custer, J. Q. Adams, Ed Le Rittilley. C. Hensell, A. U. Hall, W. P. Ander- The Clapp Stove & Hardware Co., son, Frank F. Geutset.
Toledo, $25,000. William E. Waldo, The Motor Mechanics Company,
Rexford E. Soper, Addison K. Bristol, Cleveland, $10,000. Thomas P. Hal- Frank E. Miller, Benj. T. Hatsch. lock, Macy 0. Hallock, E. P. Heming
The Louis Disbrow Motor Car Sales ton, R. H. Bosley, A. C. Marsh.
Company, Cleveland, $25,000. Louis The Builders' Mortgage & Security Disbrow, M. A. Hanna, D. R. Hanna, Company, Cleveland, $25,000. Louis J. Jr., H. W. Foster, Fred Grabien Schabinger, John J. Donovan, Charles
The Luxurious Light Car Company, E. Campbell, S. A. George, R. S. Bar- Cleveland, $10,000. C. H. Gale, Leslie rick, W. M. Barrett
Nichols, Roger C. Hyatt, Thos. H. The M. J. Rose Company, Akron,
Jones, H. O. Jones. $30,000; furniture. M. J. Rose, H. J. The Eclipse Plating & ManufacturFriedman, Max P. Goodman, A. L. ing Company, Cleveland, $5000. Peter Deitz, M. E. Tettlebach.
Verburg, Joseph Hudik, Johan Hudik, The Acme Carbon Company, Cleve- George H. Randall, John W. Abel. land, $15,000, M. G. Tielke, Henry C. The Widefield Service Company, Kelser, J. E. Schunck, A. K. Moulton, Cincinnati, $1000; manufacturing George C. Hansen.
lighting and heating appliances. W. The Bliss Shirt & Furnishings Com- H. Ballentine, H. A. Boesche, Edgar pany, Fremont, $10,000. Cliff P. Bliss, Biggs, E. H.
Lostetter, Charles W. O. Shannon, D. L. Gessner, Amelia Leibeih. C. Walhof, Ida Stevenson, Cora Bliss. The Miami Rifle Club Company, Cin
The Akron Peoples' Outfitting Com- cinnati, $10,000. Chas. E. Boys, pany, Akron, $40,000. F. J. Rockwell, Charles M. Reynolds, Henry P. RawDaisy W. Jacobs, Samuel A. Jacobs, son, Walter Faulkner, Frank Boesch. F. W. Gross, Wm. Levinson.
The B. & B. Clothing Company, ToThe Amco Building Company, Tole- ledo, $10,000. Max Basseches, Simon do, $10,000. Henry A. Schlingman, Bushbaum, Geo. P. Hahn, Sigmond Katherine Schlingman, Karl A. Senf, Sanger, C. V. Southard. Phoebe E. Senf, Maurice W. Schling- The Importers Rubber Company, man.
Dayton, $5000. John McMillan, F. C. The Orman Lumber Company, Lan- Hooven, C. T. Buel, George W. Dill, caster, $25,000; Robert M. Geisy, P. C. Hunter. Ralph M. Wolfe, Edward J. Oran, The Forest Construction Company, Ralph Morgan, George Borman.
Forest, $10,000. Charles Sousley, The Waynesville Auto Storage Com. Claude Britton, John Herzog, Bert pany, Waynesville, $3500. Chas. E. Herzog, William B. Price. Thomas, H. M. Sherwood, J. B. Chap- The Safe-Burglar Company, Cincinman, J. T. Ellis, C. W. Sherwood.
nati, $10,000. Chas. O. L. Cooper, The Boss Dishwasher Company, Cin- Julius R. Luchtenberg, Cal Crim, cinnati, $30,000. Harry Arndt, John B. Frank C. Caveman, H. J. Walker. Stableton, William Christos, Roscoe The Cleveland White Star Company, Diltz, Daniel Cremins.
Cleveland, $10,000; automobile accesThe Banner Tire & Supply Com- sories. N. C. Bailey, Jos. G. Brown,