Summary
In Johnson v. Atlantic City Water Co., 65 N. J. Eq. 129, 56 Atl. 550 (1903), Vice Chancellor Reed, in a case heard on demurrer to a bill, held that equitable relief by way of injunction should not be extended to require the furnishing of gas by a gascompany, because this could be compelled by mandamus, if the company were under a public duty to furnish it This related, however, to the relief upon final decree, and it was expressly stated in his opinion that no facts were disclosed in the bill which made the relief by mandamus inadequate.
Summary of this case from McDowell v. Avon-by-the-Sea Land & Improvement Co.Opinion
05-29-1903
JOHNSON et al. v. ATLANTIC CITY GAS & WATER CO.
J. B. Slack and Mr. Clevinger, for complainants. C. L. Cole, for demurrer.
Bill by Ralph A. Johnson and another against the Atlantic City Gas & AVater Company. On demurrer. Demurrer sustained.
J. B. Slack and Mr. Clevinger, for complainants.
C. L. Cole, for demurrer.
REED, V. C. This bill is filed by a landlord and by a tenant of a dwelling house in Atlantic City. It is filed to compel the defendants, a gas and water company incorporated under the laws of this state, to supply this dwelling house with gas. The house is connected with the gas company's reservoir by pipes. The tenant, Cridland, rented the house of Johnson, and then applied to the gas company to have the gas turned on. The company refused to do so until an unpaid bill for gas furnished to a former tenant was paid.
The ground taken by the demurrer is that, assuming that a duty rested upon the company to furnish gas (Omsted v. Proprietors of the Morris Aqueduct et al., 47 N. J. Law, 311-324), nevertheless the complainants have no right to invoke equitable relief by way of injunction. I am of the opinion that this objection is well taken. The duty of the corporation to furnish gas was a legal corporate duty, and such duty is enforceable only by writ of mandamus. New York Railroad Co. v. Montclair, 47 N. J. Eq. 591, 21 Atl. 493; Barber v. West Jersey Title Co., 53 N. J. Eq. 158, 32 Atl. 222.
The counsel for the complainant cited a number of cases decided in other jurisdictions, in which relief was granted to enforce corporate duties like this. But, upon examination, those cases will be found either to have been decided in states where the methods of judicial procedure are unlike ours, or that they are cases in which some distinct element was presented which destroyed the adequacy of the relief afforded by writ of mandamus, or they were cases where the corporate duty was contractual, and not legal. For instance, in U. S. v. Union Pacific Railroad Co., 160 U. S. 1-50, 16 Sup. Ct. 190, 40 L. Ed. 319, there were agreements existing between the railroad company and the Western Union Telegraph Company, which agreements stood in the way of complete relief. The court held that by the use of the writ of mandamus the telegraph company couldnot be reached, and that the United States had the right to have these agreements canceled, and so, having taken jurisdiction for this purpose, the court would decide the whole case. In Webster v. Newell, 60 Mich. 509, 33 N. W. 535, an injunction was granted restraining the commissioner of the land office from selling land from which the defendant had the right to make a selection of lot. The court admitted the existence of the rule that, if there had been nothing required by the enforcement of the legal duty, the complainant's appropriate remedy would have been mandamus. In People v. Canal Board, 55 N. Y. 390, there was an application to restrain the doing of something in violation of law to the injury of the public. In Whiteman v. Fayette Fuel Gas Co., 139 Pa. 492, 20 Atl. 1062, and in Fleming v. Montgomery Light Co., 100 Ala. 657, 13 South. 618, the duty of the corporations arose out of contract. In Sickles v. Manhattan Gaslight Co., 64 How. Prac. 33, the procedure was preventive; it enjoined the taking out of a meter already on the premises, through which gas was being supplied to a factory.
The injunction prayed for in this bill, although put in a preventive form, is in fact a mandatory writ. There is no fact or collocation of facts stated in the bill which displays any inadequacy in the relief which a writ of mandamus will furnish in compelling the performance of the legal duty of the defending company to turn on the supply of gas to this particular dwelling.
There should be an order allowing the demurrer.