43 and it is not awarded to those to whom the company would not be compelled to extend its mains, especially if the cost of the extension would be out of proportion to the income that would be received. But this question is often regulated by statute or an ordinance requiring the company to extend its mains to regions not occupied by it upon demand of a prospective cus tomer or of a certain number of customers. It is no defense to the writ that the company has not enough gas, as natural gas, to supply its then customers; and to compel them to take on additional customers would injure their present customers.* If the company would have the right to turn off the gas, if it were supplying it, because of a failure of the applicant to pay past bills that he owes, then he cannot successfully insist upon his rights to the writ; and this is true even though they had furnished him gas upon his application after such bills were due.46 A person who intends to make only occasional use of the gas is not entitled to the writ as, for instance, to use it only when the electric light in his house should fail.47 $532. Mandamus to compel furnishing of gas to a city. 45 There is no doubt that a municipality may compel a gas company to furnish gas under a contract it has with it, the same as a private individual; and is not compelled to resort to an action for damages. 48 $533. Penalties for failure to supply gas.- Damages. Often statutes inflict penalties upon a gas company for a neglect or refusal to furnish gas. 43 State v. Consumers' Gas Trust Co. supra; Hangen v. Albina Light and Water Co., supra. 45 State v. Consumers' Gas Trust Co., supra. 46 People v. Manhattan Gaslight Co., 45 Barb. 136; 30 How. Pr. 87; 1 Abb. Pr. (N. S.) 404. 47 Smith v. Capitol Gas Co., 132 Cal. 209; 64 Pac. Rep. 258: Fleming V. Montgomery Light Co. (Ala.), 13 So. Rep. 618; Adams Ex This is especially true in press Co. v. Cincinnati Gaslight and Coke Co., 10 Ohio Dec. 389; 21 Wkly. Law Bull. 18. 48 Toledo v. N. W. Ohio Natural Gas Co., 5 Ohio C. C. 557; 3 Ohio Cir. Dec. 273; Williams v. Mutual Gas Co., 52 Mich. 499; 50 Am. Rep. 266; 18 N. W. Rep. 286; 4 Am. and Eng. Corp. Cas. 66; People v. New York, etc., Water Co., 56 N. Y. Supp. 364. England. Thus a statute of that country 51 50 provides that if it be shown before any two justices of the peace "that any day the gas supplied by the undertakers is under less pressure, of less illuminating power, or of less purity than it ought to be according to the provisions of " that or of a special act referred to, “the undertakers shall in every such case forfeit and pay to the local authority or other persons making application for testing the gas such sum not exceeding twenty pounds, as the justices shall determine." It was held that this statute applied to a case where the company improperly cut off the gas, for the reason that a refusal or neglect to supply gas was a neglect or refusal to supply it under the pressure the statute required. Under this statute the penalties form the only remedy, no action lying for damages. Under this and similar statutes it is held in that country that the consumer cannot set up as a defense the gas supplied was of an inferior quality, such a defense being only ground for claiming a fine from the company.52 New York it was held that the company was not liable to place a gas meter on plaintiff's floor, where he resided in an apartment house, if gas was furnished the building, unless he put in a separate service or supplying pipe.53 A statute requiring a gas company to supply the owner or occupant of a building rendering the company liable to only one action to recover a penalty, for a failure to supply gas, of ten dollars, and the further. sum of five dollars for every day of refusal; and a subsequent action for penalties accruing during the continuance of the default in the absence of a new application cannot be main 49 34 and 35 Vict. [1871], Ch. 41, Sec. 36. 50 Commercial Gas Co. v. Scott, L. R. 10 Q. B. 400; 44 L. J. M. C. 171; 32 L. T. (N. S.) 765; 23 W. R. 874; 44 L. J. Q. B. 715. 51 Atkinson v. New Castle W. W. Co., L. R. 2 Exch. Div. 441; 46 L. J. Exch. 775; 25 W. R. 794; 36 L. T. 761 (reserving L. R. 6 Exch. Div. 404; 20 W. R. 35, and disapproving Couch v. Steel, 3 E. and B. In 402); Clegg v. Earby Gas Co. [1896], 1 Q. B. 592; 65 L. J. Q. B. 339. See Johnston v. Toronto Consumers' Gas Co. [1898], App. Cas. 447; 78 L. T. 270. 52 Porquay Gas Co. v. Carter, 32 Gas J. 490; Great Central Gas Consumers' Co. v. Tallis, 3 Gas J. 5. See Gaslight and Coke Co. v. St. George, 42 L. J. Q. B. (N. S.) 50. 53 Ferguson v. Metropolitan Gaslight Co., 37 How Pr. 189. tained.5 Under the New York statute before the penalty is incurred, an application must be presented, stating, among other things, the number of lights (and in case of an electric lighting company, how much power) is required, especially where the company at the time it receives the application requested such information.55 54 Jones v. Rochester, etc., Co., 168 N. Y. 65; 60 N. E. Rep. 1044; reversing 64 N. Y. Supp. 1138. In Jones v. Rochester, etc., Co., Co., 39 N. Y. Supp. 1105, 1110; 7 N. Y. App. Div. 465; affirmed 158 N. Y. 678; 52 N. E. Rep. 1124, it was held that a succession of penalties under this statute may be recovered in successive actions. In this case there was a dispute beween the customer and company. The statute referred to in these cases did not apply to natural gas companies organized under the "business corporation law." Wilson v. Tennant, 70 N. Y. Supp. 2; 61 N. Y. App. Div. 100; affirming 65 N. Y. Supp. 852; 32 Misc. Rep. (N. Y.) 273. 55 Andrews v. North River, etc., Co., 23 N. Y. Misc. Rep. 512; 51 N. Y. Supp. 872. In England where a statute required water rates to be paid quarterly in advance, a water company is not liable to a penalty for a failure to supply water if the complainant has not paid the rate in advance, although it is not the custom of the company to take prepayment. Kyffin v. East London W. W. Co., 66 Gas Jr. 243; Thorn v. East London W. W. Co., 66 Gas Jr. 189; Sheffield W. W. Co. v. Brooks, 8 Q. B. Div. 632; 51 L. J. M. C. 97; 30 W. R. 889; 46 J. P. 548. See Sheffield W. W. Co. v. Wilkinson, 4 C. P. Div. 410. The laws of New York, 1859, Ch. 3311, Sec. 6, imposing a penalty on gaslight companies, which, for ten days after an application for gas neglects to supply it, applies where, although gas has been furnished within the ten days, there has been a neglect to give a continuous supply. Meiers v. Metropolitan Gaslight Co., 11 Daly 119. In Alabama a municipal corporation may adopt an ordinance imposing a fine or imprisonment on an officer or employee of a water company for the exaction of a rate in excess of that stipulated in a contract between the company and the city for a supply of water for the city and its citizens, but not for the commission of an act authorized by such contract. Crosby v. Montgomery, 108 Ala. 498; 18 So. Rep. 723. A municipality cannot adopt an ordinance requiring a railroad company to maintain a particular kind of light at its crossings in its municipal boundaries, though it may require it to maintain a sufficient light to protect travelers. Cleveland, etc., Ry. Co. v. Connersville. 147 Ind. 277; 46 N. E. Rep. 579: Contra, Cincinnati, etc., R. R. Co. Co. v. Bowling Green, 57 Ohio St. 336; 49 N. E. Rep. 121. $534. Damages for failure to supply gas.- Sickness. Where a company undertakes to supply a customer of a municipality with gas under an ordinance requiring it to do so, or under its general public duty, and it fails to do so, especially after it has begun to supply him, it will be liable to him in an action of tort for all damages traceable to the wrong done, arising without an intervening agency and without the fault of the injured party. And it is also a tort, under such circumstances, where a contract existing between the company and the consumer, such as is usually entered into by consumers in a municipality. "The failure to perform such a contract is in itself a 'tort.' 999 56 In such an instance it is no defense for the company that it did not have the gas to furnish or enough to furnish the full amount it had agreed to furnish if it fully supplied other customers; nor is it a defense that the consumer could have recovered back an amount of the sum he paid proportionate with the amount of gas it had failed to supply. In such an action the consumer may show that other consumers in buildings received an insufficient supply, where it is shown that such buildings were attached by means that would furnish as much or more gas than the attachment at his own stove. If the company take pay for the gas and retain it, it is no excuse that the supply of gas failed, and it, for that reason could not keep its contract. Nor is it a defense that the consumer removed his mixer and burned the gas without using it, as the rules of the company and his contract with it required, it having received pay for the gas in advance." Where there is a failure to supply merely illuminating gas, the consumer has a right to recover back not only what he has paid for the gas 56 Coy v. Indianapolis Gas Co., 146 Ind. 655; 46 N. E. Rep. 17; 36 L. R. A. 535; 8 Am. and Eng. Corp. Cas. (N. S.) 771; Indiana, etc., Gas Co. v. Anthony, 26 Ind. App. 307; 58 N. E. Rep. 868; Hoehle v. Allegheny Heating Co.. 5 Pa. Super. Ct. 21; 40 W. N. C. 553; 28 Pittsb. L. J. (N. S.) 65. (This is especially true if the contract is only a statement of the reasonable 57 Indiana, etc., Gas Co. v. An- . 59 not furnished, but also the damages he has suffered in his business, as well as for the inconvenience and annoyance experienced by him in his business, if it was to be supplied for the purpose of lighting up his business establishment, arising out of the refusal to furnish gas.58 This, of course, would include loss of profits. And where the owner of a business house prepared it ready to receive the gas, it was held that he could recover from the company refusing him gas the depreciation of the property for sale or lease, and the expense of restoring the property to a proper condition, divested of the gas pipes, in addition to other damage legitimately flowing from such refusal. An aeronaut of some celebrity brought suit to recover damages estimated at over 500 dollars, occasioned by a failure. of a gas company to keep a contract to supply his balloon with gas, on an occasion of an intended ascent in a city; and it was held that the plaintiff was entitled to maintain the action. But a boarding house keeper was not allowed damages for loss of the profits she would have derived from her boarders who left because of a failure of the company to furnish gas." Yet where a natural gas (or other) gas company undertakes to furnish gas for heating purposes, and fails to do so, it will be liable, after notice of the probable effects of such failure and the consumers' inability to procure other fuel, in damages, for sickness occasioned thereby to the consumer and his family, even for the death of his child or wife,62 unless the company show that it was beyond its power to furnish the gas." Where a 58 Shepard v. Milwaukee Gaslight Co., 15 Wis. 318; 82 Am. Dec. 679; Baltimore Gaslight Co. v. Colliday, 25 Md. 1; Whitehouse v. Liverpool, etc.. Co., 5 C. B. 798; 5 M. Gr. and S. 798; Kokomo, etc., Co. v. Albright. 18 Ind. App. 151; 47 N. E. Rep. 682, rental of houses recovered. 59 Baltimore Gaslight Co. v. Colliday. 25 Md. 1; Bedding v. Imperial Gaslight Co. 7 Gas J. 418. 60 Hampton v. Oxford Gas Co., 3 Gas J. 64. 63 61 61 Morey v. Metropolitan Gas Co., 6 J. and S. (N. Y.) 185. The soundness of this decision may well be doubted. 62 Coy v. Indianapolis Gas Co., supra; Indiana, etc., Gas Co. v. Antnony, supra; Hoehle v. Allegheny Heating Co., 5 Pa. Super. Ct. 21; 40 W. N. C. 553; 28 Pittsb. L. J. (N. S.) 65. 63 Coy v. Indianapolis Gas Co., supra. |