Hanford Gas & Power Co. v. City of Hanford

ANGELLOTTI, J.

This is an action to recover from the city of Hanford, $740.20, paid by plaintiff to said city under such circumstances as, it is claimed, entitles plaintiff to recover it with interest, and also to obtain a decree enjoining the city from doing certain things. A demurrer to the complaint for want of facts to state a cause of action was overruled, and defendant failing to answer, judgment was given for the recovery of such money with interest, and restraining the city from the commission of any of the acts alleged to be threatened. Defendant appeals from such judgment.

The complaint is substantially as follows: Defendant is a municipal corporation of the sixth class. The plaintiff is a corporation organized for the purpose of constructing and maintaining gas plants in cities and towns and manufacturing and supplying gas to the inhabitants of said cities and towns to be used for heat, light, and power. On July 14, 1902, E. E. Bush and C. S. Young applied in writing to the board of trustees of defendant for a franchise and privilege for themselves, their successors, and assigns for a period of fifty years, to lay and maintain gas pipes for the purpose of conducting gas for heat, power, and light, over, upon, along, and under the public streets, alleys, etc., in the city of Hanford, and for selling and supplying the same to the inhabitants of said city. Notice of such application was given to the board of trustees by publication stating that it was intended to grant said privilege, and that sealed bids would be received therefor up to October 23, 1902, at eight o’clock p. m. The notice stated that the principal bidder and his assigns must, during the life of said franchise, pay to the city two per cent of the gross annual receipts arising from the use, operation, or possession of the franchise, except for the first five years. It stated that “in the event said payment is not made, said franchise shall be forfeited.” It further required a bond

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from the grantee in the sum of two thousand five hundred dollars, conditioned for the observance by him of the stipulations on his part. On October 23, 1902, C. S. Young submitted a bid for such privilege in accordance with the conditions specified in the notice, offering to pay therefor two hundred and fifty dollars. This bid was accepted. On October 28, 1902, Young gave the required bond, which was approved and accepted. On November 10, 1902, the board of trustees adopted an ordinance granting to Young and his assigns the privilege and franchise for the term of fifty years “to lay gas pipes for the purpose of carrying gas for heat, light and power through the public highways, streets, and alleys in said city of Hanford” on the conditions specified in the notice for bids, one of which conditions was specified in the ordinance as follows:—