
    No, 820
    SCHULTZ v. UNION GAS & ELECTRIC CO. et.
    Hamilton Common Pleas
    Decided August 14, 1925
    1010. REFERENDUM LAWS—Does not apply to rate ordinance in pursuance of franchise contract entered into before existance of such laws.
    677. JUDGMENT—When allowed to become final, issue therein determined becomes res judicata as to same matters between same parties.
   DARBY, J.

William Schultz’s petition in the Hamilton Common Pleas set forth the passage by the council of Cincinnati of an ordinance regulating the price to be charged by the Union Gas and Electric Co.; and that proper proceedings have been instituted for a referendum of such ordinance; but that the Gas Co. threatens to put into effect the gas rates under the ordinance before the expiration of the thirty day period in which to file petitions in referendum.

It is prayed that the city be restrained from putting the ordinance into effect and that the Company be enjoined from charging the rates fixed thereunder within the thirty day period; and that upon full hearing the restraining order be made permanent.

It was claimed by the Company that in 1905 when it entered into a franchise contract with the City there were no referendum laws in existance, that by virtue of that contract the ordinance of 1925 was passed, and accepted by it; and that said referendum laws do not apply to the franchise contract or ordinance in pursuance thereof. It was further claimed by the Company that the District Court, where the question was directly presented, held that no referendum laws in this State applied to the franchise contract or rate ordinance in pursuance thereof. It was further claimed that the Common Pleas and the Court of Appeals decided that the decision of the District Court was a final determination of matters involved. The Common Pleas Court held:

1. “A fact or question which was actually in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgments therein, so far as concerns the parties in that action, and persons in privity with them, and cannot again be litigated in any future action between such parties or privies in the same court, or in any other court of concurrent jurisdiction, upon the same or a different cause of action.”

Attorneys—Eli G. Frankenstein for Schultz; Frank K. Bowman for Cincinnati; Lawrence K. Langdon for Gas Co.; all of Cincinnati.

2. Applying this principle to the case at bar, it is certain that in the District Court the question of whether the referendum laws applied was raised. "That court, in all events, distinctly and unequivocally held that the referendum sections did not apply to the rate ordinance. Judgment of that court is final.

3. The losing parties in the case in the Court of Appeals not having taken steps to obtain a review of the decision in that court, it became the final determination of the question involved.

Petition of Schultz dismissed.  