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    Gas-light Co. v. Zanesville.

      Gas Companies — Duty to furnish gas may be enforced — Dow suit for this purpose brought — Practice.
    1. Where it is the duty of a gas-company to furnish gas to a city at the rates fixed by an ordinance of the city council, adopted under the authority of § 2478 Bev. Stats., it may, if it refuse, be compelled by a mandatory injunction so to do, so long as it continues to exercise and enjoy its franchises as a gas-company.
    2. A suit for this purpose may be brought by the city solicitor under the provisions of § 1777, Bev. Stats., as amended April 4, 1884 (81 Ohio L. 189). A suit so brought is not in the nature of a quo warranto, and may, therefore, he brought in the common pleas.
    3. Where a judgment, rendered in one suit, has been reversed on error in this court, it cannot be relied on as an adjudication in another suit, when the judgment in the latter suit is brought to this court for review, although such former judgment was in force and unreserved at the time of the rendition of the judgment sought to be unreversed The party in whose favor it was rendered, is estopped, by its reversal, from affirming its verity.
    (Decided December 10, 1889.)
    Ebbob to tbe Circuit Court of Muskingum county.

      Moses M. Granger (with whom were A. W. Train, F. S. Southard and S. JR. Stanbery), for the plaintiff in error:
    In the argument I support the following propositions:
    1. The averments and denials in the answer leave only so much of the petition as charges a refusal to furnish gas such as, under section 2482 Revised Statutes, is punishable by forfeiture of corporate franchise.
    2. The decree pleaded in bar is a complete defense to any and every action by the city based upon the facts stated in the petition, except an action to obtain a judicial declaration of a forfeiture provided for by said section 2482.
    3. No court of common pleas has jurisdiction to find, declare and adjudge any such forfeiture, or to judicially forbid the exercise of any part of any corporate right, because a gas company has refused to furnish gas to its city under an ordinance fixing the price of gas in said city.

      4. The circuit court, in this action, holds only appellate jurisdiction, and can make no order or decree that thé common pleas had not jurisdiction to make.
    5. The answers being true (on demurrer) the demurrers to both defenses must be overruled, whether the ordinance of January, 1884, is valid against the defendant, or not.
    6. As no amendment can give to the circuit court original jurisdiction of this action, ex-neeessitate, it must eventually be dismissed at the city’s costs.
    7. If we suppose the ordinance of January, 1884, valid as against the defendant, a refusal to furnish gas to the city, at the ordinary price, could not give the city any right of action against the company, except an action in quo warranto ; and that action cannot be begun in a court of common pleas.
    8. Section 1777 did nothing except to grant to the city solicitor the power, and to make it his duty, to institute and conduct, in the proper court, certain actions or proceedings that the city (before the enactment of section 1777 and without its help) might of right cause to be prosecuted. That section gave no new right of action, or form of action, to any city; and in no manner increased or lessened the jurisdiction of any court.
    9. No city has a right to an equitable action to enforce specific performance of any duty imposed by one of its ordinances.
    10. An injunction is a remedy, granted by a court of equity, forbidding the doing by a defendant of a wrongful act that will do great and irreparable damage to a plaintiff, who has no other plain, adequate and complete remedy. It must forbid the doing of the act (or omission) that will (if done or omitted) cause the damage. It cannot forbid the ■use of defendant’s pipes to convey gas to its other customers, because a refusal to sell to the city will damage the city. Moreover, the city had and has “ a plain, adequate and complete remedy ” — to wit, a quo warranto action; far more plain, adequate, complete and speedy than this action.
    11. In Munn v. Illinois, 94 U. S. 113, the Supreme Court of the United States, and in State v. Gas Co., 34 O. S. 581, the Supreme Court of Ohio, clearly declare when the public may fix a maximum price for the sale or use of private property.
    12. That power may be exercised wheu the private owner is the express grantee of a monopoly; or the property, or its use, is necessary for the public, and the owner so acts as to create in himself and associates a virtual monopoly.
    13. The defendant is not the express grantee of a monopoly; its gas is not necessary for the public; it cannot create for itself a virtual monopoly.
    14. The public may surrender its right to fix a maximum price.
    15. The grant made by section 2 of the act of 1849 was, in part, subject to the action of the council.
    16. The legal effect of said section referred the company to the council for the terms upon which it might obtain the corporate right to use streets and alleys by pipes for conveying its gas to customers, and, therefore, gave to the council power to name those terms.
    17. ' So soon as council had passed the ordinance of 1849, the legislative grant took effect subject to the terms of that ordinance, precisely as if those terms had been set out in full in the statute.
    18. The statute and the ordinance of 1849, together, constitute the charter of the company, and form a contract between it and the public. The public can do no act inconsistent with the terms of such charter.
    19. By so naming a maximum price in the charter papers of the corporation, without any words expressly reserving a right to alter the maximum, the legislative grant took effect for the entire life of the corporation subject to that maximum; neither state nor city could afterwards change it without the consent of the company.
    20. The company has not used any power granted by any legislation under the constitution of 1851.
    21. The ordinance of 1884 is not valid as against the defendant.

      The decree of the district court is in substance and effect a judgment in quo warranto. Notwithstanding it takes the form of a mandatory injunction, its sole effect is to forbid all use of the corporate franchise to sell gas unless the company will consent to sell at or under the price named in the city ordinance of 1884. Under the charter the franchise to sell gas is limited to Zanesville and its inhabitants. The decree requires the 'company to sell to all its authorized customers at said ordinance price, “ during the time that it continues to exercise its franchises within the city of Zanesville and to manufacture and sell gas therein.”
    It is impossible to find any difference between this decree and a judgment in quo warranto. It effectually ousts the company from so much of its franchise to sell gas; and it does nothing else. The legislative intent as expressed in Ohio Statutes denied to the Court of Common Pleas all power to oust a corporation from any of its franchises. But if the decree complained of is sustained every court of common pleas may fully exercise that power by styling its decree “ a mandatory injunction.”
    Moreover — when this’ action was begun in Muskingum Common Pleas, Ohio Statutes denied to that court jurisdiction in mandamus.

    Leaving the question of jurisdiction, the defense in which the former decree is pleaded, next demands attention. As that judgment was rendered in an action originally brought in the Common Pleas, of course the city could not in that action obtain a decree adjudging the forfeiture of any corporate right. Therefore, that decree does not take from the city the right to institute and carry on to final judgment an action in quo warranto in the District (now Circuit) Court.
    But that decree is a complete defense to any and every other civil action by the city based upon the facts stated in its petition here. In the Common Pleas, Judge Phillips made so perfect an exposition of the law on this question, that I will quote his opinion as my argument upon it. He said:
    “The doctrine of res adjudieata rests upon the fundamental principles that the judgment of a court of competent .jurisdiction is, and ought to be, a final and conclusive settlement, as to the parties and privies, of all matters involved in the action. All such matters pass into the judgment, and cannot be re-litigated by the same parties or their privies. The law must prescribe some period to controversies; and surely no period can be more proper than that which affords a full and fair opportunity for both parties to present, .and for the court to consider and decide all their claims. By a line of almost uniform decisions in Ohio and other states, these principles, applicable to this case, are established.
    1. A judgment or decree, to be a bar per se must have been an adjudication upon the merits of the cause. 4 O. S. 566; 23 O. S. 560; 36 O. S. 347-371; 40 Am. Rep. 611.
    2; Only such matters as were directly in issue, and as were relevant and material, pass into the judgment, and become res adjudieata. Wells’s Res Adj. 203; Sto. Eq. Pl. 791, note 1.
    3. It is the point as to which relief is sought, and upon which the judgment rests, and not any incidental or secondary matter that may have been controverted by the parties, that becomes res adjudieata., Wells’s Res Adj. 211.
    4. To make a judgment or decree in a former suit conclusive per se, it must appear that the particular controversy sought to be precluded was therein necessarily tried and determined. 10 O. S. 45; Wells’s Res Adj. 33; 40 Am. Rep. 570.
    5. A judgment is conclusive, not only as to matters actually determined, but as to all other matters that might on either side have been litigated in the case. 27 O. S. 233, 674; 28 O. S. 668; Wells’s Res Adj. 250, 251, 268.
    6. But as the merging of one cause of action in judgment cannot carry with it another and independent cause of action, no couuter-right of action by the defendant — such as set-offs or counter claims — is extinguished, unless pleaded and adjudicated in the cause wherein the judgment relied upon was rendered. Bigelow on Estoppel, 104. (Cited in 38 Am. Rep. 777.)

      7. The rule applies to an entire cause, or to particular facts in issue in both suits. If applied to an entire action, it is a complete bar; if to particular facts, it is conclusive as to those facts. Wells’s Res Adj. 4; 7 O. S. 157; Doty v. Brown, 58 Am. Dec. 350.
    From these principles, we may deduce the following rules applicable to the ease in hand:
    1. If the cause of action here is the same as in the former suit, — that is, if the controversy here is the same controversy determined there — the decree in that case is an absolute bar in this case.
    •2. Every material fact alleged in the former suit was therein adjudicated, and for the purpose of this suit every such fact is incontrovertibly true.
    3. Every fact alleged in this petition that would have been proper matter of strict defense in the other suit, was therein adjudicated also, and is in effect, to be eliminated from this petition, because such fact cannot be re-litigated.
    4. As the city set up no defense in former case, any counter right of action by the city, set up in this cáse, that is, any facts set up here, that would not have been matters of strict defense in the former suit,- and which constitute a right in the city independent of the rights of the company adjudicated in that suit, is not barred by former adjudication. But such right, in order to be thus saved from the effects of such adjudication, must be a right in the city, that can in law coexist with such adjudicated rights of the company.
    Applying these principles here, we find that in the former suit the company charged, that, the city persisted in unlawfully using the company’s gas, and by force prevented the company from cutting off its gas from the city’s posts. Its petition asked an injunction forbiding such acts by the city. The decree granted the injunction forbiding any use of the gas by the city unless it would pay therefor $14.50 per post .per year and $1.40 per 1000 cubic feet of gas passing through meters — that is the price named in the company’s bid and offers. Before such a decree could be made it was material to satisfy the court that the city had no right to bum the company’s gas without its consent; that the company had a right to disconnect its pipes from the city’s posts, and that it was not bound by the ordinance of 1884. If so bound it was not entitled to the injunction asked for and granted, because an action at law would have yielded, in damages, the ordinance value of the gas; and it was clear that if the company would obey the ordinance the city would not trouble its pipes. Hence, in that case the issues were precisely the same as those pending here, save only the prayer of the city asking a forfeiture of a corporate franchise. And if such a prayer may be granted by a common pleas court, said decree is a complete bar to action on such claim in this cause.
    So much of the argument for the Gas Company as related to propositions 11 to 21 (both included), is reported in The City of Zanesville v. The Zanesville Gas-light Company, ante, page 1.

      Gilbert D. Munson, (with whom were A. J. Andrews, JR. JBJ. McFarland, City Solicitor, W. JBJ. Cunningham, Jr., late City Solicitor,) for defendant in error:
    This action grew out of the refusal of the plaintiff in error, to be controlled by an ordinance enacted by the defendant in error (under sec. 2478 Revised Statutes) regulating the price gas companies within the city may charge for gas.
    The record discloses the facts. Briefly outlined, they are: the city council passed the ordinance; the company refused to observe it, claiming that by its charter, and a former ordinance, it was exempt from municipal control. The city complains that while holding on to and making use df its easement, selling gas to private consumers, the company refuses to furnish light for public use, at the reasonable price fixed by the ordinance.
    The circuit court decreed, that the company “ shall during the time that, it continues to exercise its franchises within the city, furnish gas as provided by the ordinance of the city council (of 1884) or until otherwise provided by ordinance of said city.” We submit that The Zanesville Gaslight Company is subject to legislative supervision and control.
    The principle involved in this proposition, was decided in the case of The Columbria Gas Light and Coke Company, 34 O. S. 572. “ The supplying of illuminating gas is a business of a public nature, to meet a public necessity.” Gibbs v. Consolidated Gas Co., 130 U. S. 396.
    It is a part of the police arrangements connected with the proper government’of a city: A matter connected with or relating to the government of a public corporation. C. H. & D. R. R. v. Sullivan, 32 O. S. 152.
    Contracts such as are claimed by the company here are unauthorized. Zanesville had no power to grant the perpetual right claimed.
    Such contracts for an indefinite period are not favored. Cinci. Gas Light & Coke Co. v. Evondale, 43 O. S. 257, so holds, even under authority of sections 2478 and 2485 Revised Statutes. “ Unless a time certain is fixed, it can be changed.” 18 O. S. 263.
    “ It does not follow that because the legislature has such power, it may be exercised by a municipal corporation.” Spear, J., in Ravenna v. Pennsylvania Company, 45 O. S. 118. If any doubt exists, it must be resolved against the power. Ibid. 121.
    Even if there was a contract, still, Zanesville may legislate in the interest of the public, so as to deprive the company of a part of its rights under such contract. Dillon, Section 696. Des Moines Gas Co. v. Des Moines, 44 Iowa, 508.
    Chief Justice Marshall in Georgetown, 6 Wheaton, 597, said “ The power to make a contract which should so operate as to bind its legislative capacities forever thereafter and disable it from enacting a by-law which the legislature enables it to enact, may well be questioned; we rather think that the corporation cannot abridge its own legislative power; ” and see Garrison, City of Chicago and The Peoples Gas Light Co., 7 Bissell. U. S. 480.
    But the authority given Zanesville by the act of January 21st, 1814, is “ to make.....laws and ordinances..... and the same from time to time to alter or repeal.” Ohio Laws, Vol. 12, 71 & 72. There is neither express nor implied authority here, to make the contract the company claims the town did make with it.
    Upon non-compliance with the ordinance, the action was properly brought by the City Solicitor under the provisions of section 1777 as amended 81 O. L. 189.
    By common law the city might protect itself by action of this character. In the case of the Cincinnati Street Railroad Company and others against Richard Smith et al., 290 S. 291, the question was made as fo who might present a matter of this character to the court; and the amendment above referred to followed.
    In the act incorporating the town of Zanesville, Vol. 12 O. L. 68, section 5, the town might sue and be sued etc. in any action or suit in any court in the State. ' The act incorporating Zanesville as a City, Vol. 48 O. L. 473, section 25, makes it successor to the town with like powers. A court of chancery will grant a remedy on account of any wrong to the public requiring the interference of chancery upon equitable grounds. Private Corporations, Morawetz, 659. “ And the fact that the commission of such wrong incidentally involved an unauthorized exercise of corporate power, or other breach of the law is immaterial.” Ibid.
    “ Quo warranto is an extraordinary legal remedy, and not gran table where the party aggrieved can obtain full and adequate relief in the usual proceedings at law or by the ordinary forms of civil action. High’s Extraordinary Legal Remedies, Sec. 617.
    The rule applies to cases where the grievance may be redressed by bill in equity, and the existence of an adequate remedj'- in equity would seem to be a sufficient objection to entertaining proceedings by information. Ibid., p. 480, and cases cited.
    The petition in error states amongst other things, that the circuit court decreed that the Gas Company obey a certain ordinance. This is not accurate. The decree is that the company “ shall during the time that it continues to exercise its franchises within the City of Zanesville, and to manufacture and sell gas therein, be required to furnish gas as provided by the ordinace of said city.....”
    If the company did not wish to obey the ordinance, the alternative is presented, i. e. quit exercising its franchise within the city; that is the court’s order, and that is as far as the decree goes.
    As to whether the Circuit Court erred in sustaining the city’s demurrer to the first defense of the company (which defense is that of res adjudicated) I suggest that the case in which the judgment was obtained (claimed to be a bar in this case) is now pending in this court on error to the Dis-. trict Court of Muskingum county. That case is number 847 of the files here, and is entitled “The City of Zanesville, Plaintiff in Error, against The Zanesville Gas-light Company and others, Defendants in Error: ” and, we ask the court to hear that case with this one.
    That judgment is erroneous. Upon the general principle that11 Me dolo malo non oritur actio” the equitable relief of injunction, ought not to have been granted. For, admitting that the city committed continued trespass against the company by lighting its gas, yet the company might not dig in the streets to cut and destroy the mains, and deprive the city of light.” “ The consent given to the company to lay its pipes, beneficial to the town, did not carry with it the right to take them up or cut them to the prejudice of the town.” See opinion of Bigelow, C. J., 12 Allen, 75.
    The duty of the company was to preserve every part of their apparatus from defects by which the public might be subjected to inconvenience and individuals to imminent peril and danger in respect to property and their lives. Holly v. Boston Gas Light Co., 8 Gray, 120. Instead of doing this the company claimed the injunction to protect it while destroying the remainder of the public lights.
    But the judgment is not a bar, because the parties are not the same; the issues are not the same; the relief sought is not that the company may escape obedience to the ordinance;
      but that it be permitted to prevent (in its own way, free from interference from the mayor and police) the city’s use of its gas. That action is against the municipality and several other parties besides. This is brought by the city solicitor against the company alone. The issue in that case is “ continuing trespass.” The issue in this case is obedience to an ordinance or give up the exercise of its franchise in Zanesville.
    It is true that in deciding the question of a “ continuing trespass,” the court might have decided the question of the validity of the ordinance, and its application to, and power over the company; but it was not necessary to decide that .question in order to determine the company’s right to an injunction against the city’s continued trespassing. “It must appear by the record of the former suit that the particular controversy sought to be precluded was therein necessarily tried and determined.” Lessee v. Truman, 10. O. S. 45-58. Porter v. Wagner, 36 O. S. 471. “It must appear that the precise question was raised and determined in the former suit.” Russell v. Place, 94 U. S. 606; Standish v. Parker, 2 Pick. 21: King v. Chase, 15 N. H. 15; Fagg v. Plummer, 17 N. H. 115; Kent v. Gerrish, 18 Pick. 565; Richardson v. Boston, 19 How. (U. S. ) 263; Giliston v. Hoyt, 7 Johns. 570; Wells’s Res Adjudicata, Sections 290-440-225-227.
    Assuming however that the company’s right to disregard the ordinance was in issue, and was decided in that case; the right depended upon the legal effect given its record title, as exhibited by its charter, and the ordinance of 1849. This is matter of law, the documents of title are exhibited with the petition, and constitute part of the record, and the court takes judicial notice of their effect. But a fact impossible in law, cannot be admitted by a demurrer; nor has a judgment founded on such fact the force of res judicata. Louisville & Nashville R. R. Co v. Palmes, 109 U. S. 244.
   Minshall, C. J.

The original action was commenced by the City of Zanesville against the Zanesville Gas-light Company. The company was chartered by an act of the legislature in 1849, to manufacture and sell gas to the city and its citizens ; in the same year an ordinance was passed by the town, now city, of Zanesville, granting the company the use of its streets and alleys, and fixing the maximum price at which gas should be furnished. This provision does not seem to have been regarded by the company or the city, as the company from its organization, supplied gas to the city under agreements with it, made from time to time, at rates sometimes above and sometimes below, the maximum fixed by the ordinance, until in 1884, when, all agreements being at an end, except as to a few out posts, the city, in pursuance of the power conferred by sec. 2478, Rev. Stats., passed an ordinance fixing the price at which the company should furnish gas to the city and private consumers. The company refused to furnish gas to the city at the rates so fixed, claiming that it was not subject to the provisions of the ordinance, and was proceeding to disconnect its pipes from those that supplied the city, when the city commenced its action to restrain the company from so doing, and to require it to furnish gas at the rates fixed by the ordinance. The charter of the company, the ordinance of the town granting the company the use of its streets and alleys, etc., and that of 1884 fixing the price of gas, will be found in the statement of the case of The City of Zanesville v. The Zanesville Gas-light Company, ante. There, in the original action, which was a suit brought by the company against the city, the company sought to restrain the city from interfering with it in disconnecting its pipes from those of the city, the company claiming there, as here, that, having been chartered by the legislature before the adoption of the present constitution of the state, it is not subject to the ordinance of the city fixing the price at which gas should be furnished. On appeal to the district court, the decree was so entered as to require the city to pay the price fixed by the company or be restrained from such interference. Though not in these words such was the legal effect of the decree. This judgment, having been rendered in the district court prior to the hearing of the case of the city against the company in the common pleas, was there pleaded as a bar to the action of the city. . The common pleas rendered judgment against the city; an appeal was taken by it to the circuit court, where, on the pleadings as made up in the common pleas, that court rendered judgment in favor of the city, requiring the company to furnish gas to the city at the rates fixed by the ordinance, so long as it should continue to exercise its franchises within the city.

A number of reasons are assigned why this judgment should be reversed and the petition of the plaintiff below dismissed:

1. That the suit is in the nature of a quo warranto, and that, therefore, the court in which it was commenced had no jurisdiction.

2. That the company is not subject to the ordinance of the city fixing the price of gas.

3. That the real controversy — the applicability of the ordinance to the company, was determined in the suit of the company against the city, and is, therefore, res adjudieata.

4. That the company cannot be compelled by injunction to furnish gas at the rates fixed by the ordinance.

As to the first proposition, the argument in support of it seems to assume, that no power or franchise claimed by a corporation can be questioned, except in a proceeding in quo warranto. This is certainly erroneous. Zanesville v. Gas Light Co., supra. That a judgment of ouster cannot be pronounced in any other proceeding is true; but a judgment of ouster in a proceeding in quo warranto, commenced on behalf of the state, is one thing, and a judgment in an action between a company and a private person brought to assert some proprietary claim or alleged obligation of the one to the other, is a very different thing, although the latter judgment may rest upon a conclusion drawn by the court that, as a matter of law, some power or franchise claimed by the company is not possessed by it. In such judgment the question is simply passed on to determine the rights and obligations of the parties involved in the particular litigation. But it is not available as an adjudication in favor of, or against, other persons; and the question as to the disputed franchise may be made as often as it arises in litigation between the company and third persons. Not so, however, in a proceeding in quo warranto. The purpose and object of this proceeding is to determine the question once and for all; and by a judgment that shall be binding upon all. It is not a judgment based upon a wrong of the company against any particular individual, but on a wrong as against the entire public — the wrong of usurping the prerogatives of the people, and, if found guilty, the judgment is one of ouster in favor of the entire public. There are evident reasons for limiting a jurisdiction so drastic in its consequences to courts composed of more than one judge, that do not apply to suits of a private character and that can only affect the parties to them, whatever may be the judgment.

It is neither extraordinary nor unusual to question the powers of a corporation where they are involved in litigation between it and a private person. The franchise to be a corporation, of the power of eminent domain, or any right or privilege that a corporation may claim, may be, and frequently is, questioned by a private individual, whenever involved in litigation between it and the individual. “ It is well settled,” says Mr. Morawetz, “ that a court of chancery has jurisdiction to grant equitable relief against a corporation at the suit of an individual, whenever a sufficient case for relief is shown, upon the ordinary principles of equity jurisprudence; and the fact that the act of the corporation against which relief is sought involves an unauthorized exercise of corporate power, or other breach of the law, is wholly immaterial under these circumstances.” Mora. Priv. Corp. § 1042.

The right of any one involved in litigation with a corpora^ tion to question its claims, results as a corollary from the capacity confenud on it to sue and be sued. Such capacity does not carry with it the franchise of a privileged suitor. The capacity to sue and be sued implies power in the opposite party to question the claims of the one clothed with such capacity. If it were otherwise, a private individual would be at great disadvantage in litigation with a corporation: As a proceeding in quo warranto must be brought in the name of the state by the attorney general, or some one else authorized to represent the state, and, as it may not always be convenient, nor possible, for the individual to induce the proper officer to commence the proceeding, he might be compelled to submit to a usurpation by a corporation, however wrongful, and whatever the injury as to him might be.

The suit below, brought by the city solicitor in the name of the city under the provisions of section 1777 as amended in 1884, was a suit brought for the city in its private capacity, asserting its own right to be furnished with gas by the company under the obligation imposed by the ordinance of the city council, and asking that the company be required to perform that obligation. The remedy sought did not require a judgment of ouster, and there was, therefore, no impediment, on the ground of jurisdiction, to its being brought in the common pleas.

The second proposition has been already decided against the company in Zanesville v. The Gas-light Co. ante. It was there determined that the city council had power to pass the ordinance regulating the price of gas, and that the company is subject to its provisions, although it was organized before the adoption of our present constitution.

The third proposition is, however, that the question was determined in favor of the company in the district court, in the suit of the company against the city, and is, therefore, res adjudicata.

The suit of the company against the city was commenced May 31, 1884, and was decided in its favor in the district court, October 3,1884. The suit of the city was commenced the day following that of the company, but was not heard in the common pleas until after the suit brought by the company had been determined in the district court; and it is this judgment that was then, and is now, relied on by the company as an adjudication in its favor, conclusive on the question involved. It will be seen that both suits were practically pending from the same time, and whilst each was prosecuted for a different purpose by the party bringing it, both turned upon substantially the same question— the power of the city council by ordinance to fix the price at which the company should furnish gas. So that each turning upon the same question of law, no good reason is perceived why a judgment in either, remaining unreversed, should not be regarded as conclusive upon the rights of the parties in the other suit. But the judgment rendered in favor of the company by the district court, has been reversed by this court, and the rights of the parties now stand as if it had never been rendered. Hence, if the city had the right to prosecute the suit commenced in its name by its solicitor, the judgment that was rendered against it in the district court, cannot now stand in the way of any relief to which it is entitled upon the facts of its own case. And this brings us to the question involved in the fourth proposition.

By § 1777 Revised Statutes, as amended April 14,1884*. it is made the duty of. the city solicitor, “whenever an obligation or contract granting a right or easement or creating á public duty is being evaded or violated,” to apply “ for the forfeiture or specific performance of the same as the case may require.” Although the contrary is strenuously maintained in argument by counsel for the company, the case made by the city seems plainly to fall within the provisions of this, statute. The company was certainly under an obligation to manufacture and sell gas to the city of Zanesville and its citizens, by accepting and exercising the franchises granted it by its charter and the ordinance of the city granting it the use of its streets and alleys for the purpose of distributing gas to its consumers. This was not a duty arising from “an office, trust or station,” but an obligation created by contract, which it was under a legal duty, and might be compelled, to perform, as any other contract under like circumstances. The section as amended did not create for the city any new right; it simple authorizes the city solicitor on behalf of the city to invoke a jurisdiction not infrequently exercised by courts of equity in such cases. See Mora. Priv. Corp. § 1043 and cases cited.The contract was subject to a provision imported by law, that the company would furnish the gas at such rates as the city, when empowered by the legislature, should by ordinance determine. The power may be abused, and we doubt not, but that, a remedy would be furnished by the courts in such case if shown to have resulted from fraud or any wrong motive. But it is certainly no more liable to be abused than if it were reposed in the company. There is no complaint in this case of any fraud in the adoption of the ordinance. The city was entitled to a remedy. As the obligation is one that arose from contract, it could not be enforced by mandamus. State ex rel. v. Turnpike Company, 16 Ohio St. 308; and, as it would hardly be claimed that a suit for damages would furnish adequate relief in such ease, it follows that it was entitled to a decree of specific performance. This was awarded in the form of a mandatory injunction. The decree is guarded: It does not compel the company, without limitation, to furnish gas, but only so long as “ it continues to exercise its franchises within the city of Zanesville.” It might have been couched in a negative form by restraining it from disconnecting its pipes from those of the city so long as it continued to exercise its franchises in the city — and which would have been more in accordance with the practice by which mandatory injunctions are made operative. Pom. Eq. Juris. § 1359, and note 2. But as, in this case, the result would be the same, we see no need of modifying the decree.

Judgment affirmed.