author: Davis, J.

text:
    The East Ohio Gas Company v. The City of Akron.

      'Corporation for transporting gas — To certain named cities — Not bound to furnish gas to all cities — Along line of company— Municipality by ordinance allows company to' enter city — Ordinance constitutes contract — Rules of construction — Franchise indefinite as to time, not perpetual — Company may voluntarily withdraw, when — May be compelled to exercise franchise fairly, when.

      1. Where a corporation is formed “for the purpose of producing, purchasing and acquiring natural gas” and “of piping and transporting natural gas from .the place or places where it is produced, purchased or acquired” to certain named towns and cities situated in the counties along the line of said company and between the termini thereof, “and to other cities, villages and places in the counties aforesaid,” it is not one of the charter obligations of such corporation to furnish natural gas to consumers in all of such cities, towns and villages.
    2. When a municipal corporation, by ordinance, gives its consent that a' natural gas company may enter the municipality, lay down its pipes therein and furnish gas to consumers upon terms and conditions imposed by the ordinance, which are accepted in writing by said company, such action by both parties constitutes a contract and the rights of the parties thereunder are to be determined by the contract itself.
    3. While much regard will be given to the clear intention of the parties, yet where the contract is entirely silent as to a particular matter, the courts will exercise great caution not to include in the contract, by construction, something which was intended to be excluded.
    4. Where the contract between a municipal corporation and - an incorporated company is silent as to the duration of the franchise, such franchise is not perpetual but the duration thereof is simply indeterminate, existing only so long as the parties mutually agree thereto. The incorporated company may therefore voluntarily forfeit its right to exercise its privileges within the municipality and wholly withdraw therefrom; but in such case the municipality has no right to prevent the incorporated company from removing its property, nor to take possession of and make use of the same, nor to grant the right to use the same to another company, without due process of law.
    5. But so long as such gas company continues to exercise any of its franchises within the contracting municipality, it may be compelled to exercise its franchise therein fairly and without discrimination. Gas Light Co. v. Zanesville, 47 Ohio St., 35, approved and distinguished.
    (No. 11675
    Decided October 19, 1909.)
    Error to the Circuit Court of Summit county.
    It appears from the articles of incorporation and the amendments thereto that the plaintiff in error, The East Ohio Gas Company, was incorporated for the purpose of producing, purchasing and acquiring natural gas and transporting the same to certain towns and cities named therein, the defendant in error being one, and, “to other cities, towns and places in said counties.” It was provided in the articles of incorporation, as amended, that the main line of the said gas company should begin at points on the Ohio river in Belmont and Monroe counties and run thence through Belmont, Harrison, Tuscarawas, Stark, Summit and Cuyahoga counties to the city of Cleveland. Under its franchise to be a corporation. for such purpose, the plaintiff in error applied to the council of the city of Akron for its consent that the plaintiff in error should enter said city and lay down its mains and, pipes in the streets, lanes, alleys and public grounds thereof and connect with service pipes ff> the public buildings, street lamps, and private consumers. Consent therefor was given to the plaintiff in error by ordinance enacted by the council of the city of Akron on the 26th day of September, 1898, and the condition was attached, among others, that for the first five years the gas company should charge not exceeding twenty-five cents per thousand feet of gas, and for the next five years, not exceeding thirty cents per thousand feet, and it was provided therein that, “the council of said city of Akron shall not during the period of ten years from and after the passage of this ordinance pass any ordinance fixing or attempting to fix the rates at which gas shall be supplied at any lower price than these set forth.” The said ordinance was entirely silent as to the length of time during which the gas company might exercise the privilege thus granted. After the expiration of ten years from September 26, T898, the council of the city of Akron passed another ordinance fixing the price of gas to be furnished by the said . gas company at twenty cents a thousand feet and providing that, “the said company, its receivers, successors and assigns, shall not for the period of ten years from and after the taking effect of this ordinance charge .and receive for all gas so furnished, sold and delivered, a sum exceeding the rates hereinbefore set forth.” Meantime the said city council had granted to another gas company the privilege of laying pipes within its streets and furnishing gas to consumers. The plaintiff in error declined to accept the terms established in this second ordinance and signified its intention of discontinuing its business in the city of Akron and wholly withdrawing therefrom. Whereupon the city of Akron filed in the court of common pleas of Summit county its petition praying for an injunction against the gas company restraining it from “shutting off or withholding any natural gas from the said city, its buildings, streets, and other places named in the ordinance, and from any of its inhabitants or persons doing business therein, and their several buildings, or places of business or abode, from ceasing in any manner to supply and serve its said customers and patrons with natural gas, as they heretofore and hitherto have been served and supplied and from hindering or in any way interfering with any of the persons entitled .to such service as aforesaid from the full and unobstructed enjoyment and benefit thereof.” Issues were made up by the answer to this petition and reply thereto. On the hearing in the court' of common pleas the gas company was perpetually enjoined as prayed in the petition. The circuit court on appeal made a similar order against the gas company and the case is now brought here for review on oetition in error.

      Messrs. Kline, Tolies & Goff; Messrs. Tibbals, Frank & Ream and Messrs. Doyle & Lezvis, for plaintiff in error.
    That the city of Akron, after offering satisfactory inducements to The East Ohio Gas Company to come in, when it was under no obligation to do so, may take away all those inducements, and yet compel it to remain; that by coming in under favorable conditions, it waives all its rights to get away when the other contracting party destroys or impairs these very conditions, is an interpretation of the effect of accepting the terms of the ordinance of 1898 that surely ought not to prevail, unless some specific stipulation in the ordinance itself necessitates that interpretation. Gas Light Co. v. Zanesville, 47 Ohio St., 35.
    So long as one maintains the public use of the property he must submit to the public control. It is held that he has the right to withdraw his grant to the public by discontinuing the use. Attorney General v. Railway Co., 35 Wis., 425. This doctrine is approved in Madison v. Gas & Electric Co., 129 Wis., 249; Munn v. Illinois, 94 U. S., 113.
    The business of manufacturing and selling illuminating gas is not a prerogative of government, but, like the manufacture and sale of any other ordinary article or traffic, it is open to all, and may be carried on by any person without legislative authority. But the right to dig up streets and other public ways and place therein pipes and mains for the distribution of gas for public and private use, is a franchise, the privilege of exercising which can only be granted by the state or by a municipality or some other local agency acting under legislative authority. State, ex rel., v. Gas Light Co., 18 Ohio St., 291; Gas Light Co. v. Zanesville, 47 Ohio St., 35; Commonwealth v. Gas Light Co., 12 Allen, 75; McCune v. Gas Co., 30 Conn., 521.
    It is because of this public duty and the obligations that grow out of it to the community at large, that courts have laid down the doctrine that railroads must discharge' the obligations they have assumed, and yet the continuous performance of this duty is subject to exceptions even on the part of railroads. Railway Co. v. State, 90 Tex., 520, 59 Am. St., 834; State, ex rel., v. Power & Light Co., 22 Mont., 391.

      The city based its entire case upon the quasi-public character of the gas company and its business, and did not discuss the question from the standpoint of contract between the city and the gas company at all. On the other hand, the gas company claimed that no such obligation resulted from the public character of its business, and insisted that such an obligation could have been imposed only by contract entered into in one or more of three different ways:
    1. By a contract imposing the obligation, contained in its articles of incorporation or charter from the state.
    2. By a like contract with the city, contained in the ordinance of September 26, 1898; or
    3. By a statute or statutes of the state specifically imposing such a duty, thereby becoming a part of its contract either with the state or with the city, or both.
    It is conceded that no such statute ever existed in this state. The obligation therefore could not have been imposed by the third method stated.
    Our position is that the obligation cannot be placed upon the gas company by any consideration of the public character of the company or of its business, but that it must result from a contract to that effect, voluntarily entered into by it; that any attempt. to impose this obligation other than by contract, would be in clear violation of the constitutions of the state of Ohio and of the United States. 1 Page on Contracts, 21; Keener on Quasi-Contracts, 4; Marzettie v. Williams, 1 Barn. & Adol., 415; Wells v. Alexandre, 130 N. Y., 642; Lenz v. Railway Co., 111 Wis., 198; Braun v.
      Hess, 187 Ill., 283; Mill Co. v. Goodnow, 4 L. R. A., 202; Canal Co. v. Coal Co., 8 Wall., 276; Maryland v. Railroad Co., 22 Wall., 105; Zorkowski v. Astor, 156 N. Y., 393; Churchward v. Queen, L. R., 1 Q. B., 173; Jones v. Newport News, etc., Co., 65 Fed. Rep., 736.
    We insist, that having never agreed with the city of Akron forever to furnish it natural gas under this ordinance, the gas company has now a right to retire wholly from said city, and the court has no power, by mandatory injunction, to compel it to remain therein. Neither does the fact that the gas company is a quasi-public corporation, clothed for certain purposes with the power of eminent domain and engaged in a business affected with a public interest, operate to add to this contract the obligation of perpetuity claimed by the city. The single fact that the business is public, or affected with a public interest, does not deprive the party whether a corporation or a natural person, engaged in carrying it on, of the right to go out of the business.
    When the legislation as to gas companies was enacted by the general assembly, natural gas had not been discovered and of course, was not a subject of either express legislation or included by any implication or rule of construction of the statutes. Gas & Fuel Co. v. Chillicothe, 65 Ohio St., 208.
    If there had been no legislation authorizing the city to fix the price, there would be obligation on the part of the gas company, at most, to furnish the gas at a reasonable price, so long as it used the streets for that purpose, which would be a matter between the consumer and the gas company, even if that consumer was the city. Railway Co. v. Bowling Green, 57 Ohio St., 336.
    But the general assembly by chapter 7, division 3, title 12, vested a power in the city council to fix the price, and a penalty to be incurred by the gas' company for non-compliance.
    It must be borne in mind that the right to use the streets of a city for the purpose of laying pipes therein, is a franchise, and must emanate directly or indirectly from the legislature; while the power of a city to make a contract for the' price, is the authorized exercise of power to contract. The city could not, under the- first, grant any exclusive right to the streets or enter into any arrangement that would prevent the exercise of the legislative power over the streets. Under the latter it can make a contract for ten years binding the city and all subsequent councils for the period. Gas & Fuel Co. v. Chillicothe, 65 Ohio St., 206.
    But the contention is, that because the gas company has a franchise by which it is granted a right to use the streets, it is bound forever to use them; because it has the right to- sell gas conveyed through the streets, it is bound forever to sell it, not because it has agreed to do so, but because it was given the privilege to use the streets for its- pipes, and because it agreed for ten years to furnish gas at a stipulated price.
    You can no more import words into a legislative grant, than into a contract, where the imported words will create a liability not clearly provided for.

      Our claim is that this legislation is to be construed exactly as' it would have been and was before natural gas companies were included in Section 2478, (Cincinnati v. Guckenberger, 60 Ohio St., 353), and that the contract-construed in the light of the statutes, means this: So long as the company uses the streets it will comply with the reasonable regulations fixed in the ordinance. Bruner v. Briggs, 39 Ohio St., 484; Woodbury & Co. v. Berry, 18 Ohio St., 462; Smith on Statutory Construction, 714; Maxwell on Interpretation of Statutes, Section 2.
    There is no term fixed, and no language which by any rule of construction fixes a term. The gas company is granted the right to use the streets and certain regulations adopted as to how they shall be used. It was entirely feasible and easy for the city, if it intended to. bind the gas company for a term of years, or perpetually, or so long as it had natural gas to sell, to say so. Words of common use could adequately express such intention, but no such words are used, and their absence in ordinary contracts would be conclusive. Light & Power Co. v. Gas Co., 69 Ohio St., 266; Gas & Fuel Co. v. Chillicothe, 65 Ohio St., 208.
    The right of the city to maintain this action, must be on its own right. Hence, it is only because it has a contract or individual right, that, like the Zanesville case, the remedy by injunction is allowed. Gas Light Co. v. Zanesville, 47 Ohio St., 50.
    There being no monopoly in the grant, there is no obligation to continue in the business. Not a single person in Akron, nor the city- itself, is under obligation to take any gas from the gas company. State, ex rel., v. Hamilton, 47 Ohio St., 53.
    The gas company agreed to take its chances and furnish all who would buy for ten years, but it did not agree that it would take its chances beyond that period, where any number of gas companies, and even the city itself, might become competitors, and the number of the patrons become reduced. So that fact becomes important in construing this contract. 6 Thompson on Corporations, Section 7826; 5 Thompson on Corporations, Section 6680; Railway Co. v. State,. 35 L. R. A., 662; Railway Co. v. Queen, 22 L. J., Q. B., 225; King v. Proprietors of Canal, 2 W. Black., 708; Railroad Co. v. Dustin, 142 U. S., 492; People v. Railroad Co., 104 N. Y., 58.
    The right of eminent domain may be conferred upon a corporation when the property taken is not devoted to public use, as that term is understood, but where the public welfare is promoted thereby. Nor does it follow at all, that because this right is conferred upon an individual or corporation, that either is to continue in the business forever. Lewis on Eminent Domain, Sections 1, 2, 162, 163, 164, 168; McQuillen v. Hatton, 42 Ohio St., 203.
    Toll roads, bridges, ferries, etc., are instances of this use, but no one ever supposed that the grantee must, because this power was granted, engage indefinitely in the maintenance of either. Young v. Buckingham, 5 Ohio, 485; Lewis on Eminent Domain, 175, 175a.

      Mr. Nicholas M. Greenberger, city solicitor; Mr. Jonathan Taylor, assistant city solicitor; Mr. C. R. Grant and Mr. G. M. Andersonfor defendant in error.
    The plaintiff company was permitted, under law, to assume a service to the people of the enumerated cities and villages, upon such footing as to compensation and regulation as might be agreed upon. It was at liberty not to seek or accept these burdens, with their co-relative benefits to itself, but having once taken the obligation it cannot relieve itself from its performance at its sole will and pleasure as to a part of the public whom it assumes to serve, while continuing its service to the'rest.
    More important than all else, it became invested with a part of the public sovereignty in the form of the power of eminent domain, and stood charged with all the duties and responsibilities of a common carrier as by law established. Section 3878, Revised Statutes.
    The ordinance of 1898 presented to the company a contract upon its face perpetual as to duration. As to the maintenance of rates to be charged for gas the limitation in point of time was ten years. At the time the statutes of Ohio conferred upon the council of the defendant certain powers regulative of such rates from time to time. Those statutes by force of law became part of the tendered contract and — together with future amendatory acts in that regard — were read into the contract as integral parts of itself.
    The charter of the plaintiff company is also perpetual in terms and in effect. The ordinance — once acted upon — is also irrevocable. Water Works Co. v. Kansas City, 65 Fed. Rep., 691; Cook on Corporations, 2309; People, ex rel., v. Deehan, 153 N. Y., 528; People v. O’Brien, 111 N. Y., 1.
    The city by the ordinance reserved to itself the right to avoid the franchise offered and resume its control of its streets; but the option to do this was that of the city and not of the plaintiff.
    The plaintiff company in written terms accepted the contract and thus made it binding and effectual.
    The city of Akron, therefore, is not undertaking, by the ordinance of 1908 or otherwise, to “withdraw, of its own motion, the very inducements which led the company temporarily to dedicate its property to a public use.” That ordinance withdraws nothing. If the price fixed by the first ordinance was one of the “inducements” in question, moving to the company, the equal right to fix another price conferred by statute and so made part of the contract, was one of the “inducements,” moving to the city to enter into the agreement at all.
    A marked infirmity of the plaintiff’s brief seems to us to be that it assumes the non-public character and function of the company, and the vice runs all through the pertinency of cases addressed to this assumption. We have already seen that the power of eminent domain has been in Ohio conferred upon the plaintiff, and it is believed that this consideration alone ought to be, and may be, the deciding circumstance which brings the company within the line marking off quasi-public corporations, — corporations clothed with this attribute of sovereignty and in return taking upon themselves" correlative public duties which they may not abandon at pleasure. 2 Beach on Private Corporations, Section 835; Cook on Stock and Stockholders, Section 674; Gas Co. v. State, ex rel., 135 Ind., 54; Kincaid v. Gas Co., 124 Ind., 577; Munn v. Illinois, 94 U. S., 113; Zanesville v. Gas Light Co., 47 Ohio St., 1; Hockett v. State, 105 Ind., 250; State v. Gas Co., 34 Ohio St., 572; Gas Co. v. Light Co., 115 U. S., 650; People v. Gas Light Co., 45 Barb., 136; Gibbs v. Gas Co., 130 U. S., 396; Williams v. Gas Co., 52 Mich., 499; Gas Light Co. v. Richardson, 63 Barb., 437.
    And the duty which a public service corporation like the defendant owes to the rmblic cannot be abandoned by contract or by am agreement. Gas Light Co. v. Gas Light Co., 121 Ill., 530; People v. Gas Trust Co., 130 Ill., 268, 20 N. E. Rep., 798; Railway Co. v. Mining Co., 68 Ill., 498; Hayes v. Railroad Co., 61 Ill., 422; Thomas v. Railroad Co., 101 U. S., 71, 25 L. C. P., 950.
    The cases are numerous and the principle is well established that a public corporation cannot divest itself of or shirk a public duty by any contract whatever. Gas Light Co. v. Gas Light Co., 2 Am. St. Rep., 131; Gibbs v. Gas Co., 130 U. S., 396, 32 L. C. P., 979; Shepard v. Gas Light Co., 6 Wis., 539; 1 Page on Contracts, Section 447; Telegraph Co. v. Griswold, 37 Ohio St., 310.
    If then, a corporation to which the public have delegated a part of their sovereignty in the shape of the-power of eminent domain, in consideration of the corporation discharging the public functions for which end it was created, may not even by solemn contract be relieved of the debt and duty it thus owes to the public, shall it be said that it may by mere declaration of its own evade its obligation to the public? More, — while still retaining its power of eminent domain, with the right to exercise it at will, may it thus keep the consideration with one hand and avoid the corresponding duty with the other?
    The significant words of the court in the case of Attorney General v. Railroad Cos., 35 Wis., 425, which are really a quotation from the opinion in Munn v. Illinois, 94 U. S., 113, are not to be lost sight of: “But so long as he maintains the use, he must submit to the control.”
    This does not mean that he lop off the use by sections and claim a corresponding immunity from control. The language of the syllabus in Munn v. Illinois is: “When private property is devoted to a public use, it is subject to public regulation.”
    Concerning the argument of the plaintiff’s brief that its right to occupy the street “is a franchise, the privilege of which can only be granted by the state or by a municipality or some other local agency acting under legislative authority,” we desire to say, it is true that the franchise comes from the state, but the act of the local authorities who represent the state, by its permission and for the purpose, constitute the act upon which the law operates to create the franchise.
    It is the acceptance of tlie option which completes the contract. Morristown v. Telephone Co., 115 Fed. Rep., 304; Allegheny v. Gas & Pipeage Co., 172 Pa. St., 632.

      As to the power of a quasi-public corporation to abandon its obligation of service, or an integral part of it:
    The grant of a right to supply gas to a municipality is the grant of a franchise, in consideration of the performance of a public service. Gas Co. v. Light Co., 115 U. S., 650; Gas Co. v. Gas Co., 115 U. S., 6.83.
    Contracts whereby corporations disable themselves from the performance of their charter duties are void as against public policy. Thomas v. Railroad Co., 101 U. S., 83; Railroad Co. v. Winans, 58 U. S., 30; State v. Railroad Co., 29 Conn., 538.
    A charter is granted to a quasi-public corporation in contemplation of the anticipated benefit to the public from the completion of the entire work, or the performance of the whole service authorized, and the corporation is without power to abandon either in part. Cohen v. Wilkinson, 1 Mac. & G., 481, 12 Beav., 125, 18 L. J. Ch., 378, 13 Jur., 641.
    A quasi-public corporation cannot alienate its property without the express consent of the legislature. Gibbs v. Gas Co., 130 U. S., 396; Gas Co. v. Sims, 43 Am. St. Rep., 105, 37 Pac. Rep., 1042; Gas Light Co. v. Gas Co., 35 Am. St. Rep., 385; Gas Light Co. v. Gas Light Co., 2 Am. St. Rep. 124; St. Louis v. Gas Light Co., 5 Mo. App. 484; Stanton v. Allen, 5 Denio, 435.
    A grant of a public franchise is a contract between the state and the grantee, by which the latter undertakes to perform certain public duties, from the performance of which he cannot withdraw or release himself without the consent of the other contracting party. Transportation Co. v. Car Co.,
      139 U. S., 24; Railroad Co. v. Brown, 17 Wall., 445; Black v. Canal Co., 22 N. J. Eq., 130; Railroad Co. v. Winans, 17 How., 30; Kenton County Court v. Turnpike Co., 10 Bush, 529; Commonwealth v. Smith, 10 Allen, 448; Thomas v. Railroad Co., 101 U. S., 83.
    A corporation cannot contract away a part of its franchise duty. Ferry Co. v. Railroad Co., 5 Mo. App., 347.
    The charter of a gas company is a contract between itself and the state granting it, and it cannot be impaired by the state or the agents of the state. Gas Co. v. Light Co., 115 U. S., 650; Gas Co. v. Gas Co., 115 U. S., 683; Gas Light Co. v. Des Moines, 72 Fed. Rep., 829.
    A corporation accepting a grant subject to the powers reserved to the legislature, must be held, to have assented to such reservation. Gas Light Co. v. Hamilton, 146 U. S., 258; 14 Am. & Eng. Ency. Law, (2 ed.), 922.
    A railroad company may be made to operate a portion of its line which it has ceased to use and has undertaken to abandon; and mandamus is a proper remedy in'such case. Railroad Co. v. Hall, 91 U. S., 343; State v. Railroad Co., 29 Conn., 538.
    In the case of an attempted abandonment of its charter duties by a corporation, the state may advance the remedy by mandamus, by indictment or by proceedings to annul the corporation, at the election of the state, the corporation owing a duty to the public to exercise the franchise granted to it in its entirety. People v. Railroad Co., 24 N. Y., 261.

      And it cannot abandon a part of its public duties and thus incur a forfeiture at its will and pleasure.
    The state may enjoin a railroad from taking up its tracks, and prevent its attempt to avoid its charter duty to the public. State, ex rel., v. Railroad Co., 36 Pac. Rep., 747; State v. Railroad Co., 7 Neb. 357; People v. Railroad Co., 10 N. E. Rep., 657; Railroad Co. v. Railroad Co., 63 Me., 269; Railway Co. v. Mining Co., 68 Ill., 489; Gates v. Railroad Co., 53 Conn., 333.
    Mandamus will lie to compel a street railway company to maintain its road for the performance of a service due to its patrons. State, ex rel., v. Traction Co., 43 Atl. Rep., 715; State, ex rel., v. Railway Co., 53 Pac. Rep., 719; People v. Railroad Co., 10 N. E. Rep., 657; Electric Co. v. Tacoma, 50 Pac. Rep., 592; Belleville v. Railway Co., 38 N. E. Rep., 584; Pierce v. Emery, 32 N. H., 504.
    The right of the plaintiff to compel the defendant to perform the franchise duty is upheld in Ohio by Gas Light Co. v. Zanesville, 47 Ohio St., 35.
    As to the inprofitableness of a contract relieving from its performance, see Marble Co. v. Ripley, 10 Wall., 961; Fry on Specific Performance, 116.
    As to whether a corporation dissolves itself by defeating the end for which it was created, see Town v. Bank, 2 Douglas (Mich.), 530.
    For a general discussion of the rights- and obligations of the parties, see Dillon on Municipal Corporations, 691-697.
   Davis, J.

This case was orally argued and submitted six months ago; but, on account of its great importance to the public as well as to all public service corporations, we have given it unusual consideration and we have reached our conclusions only after most careful deliberation.

The chief question for solution here is whether the plaintiff in error may, under the circumstances disclosed in the record, discontinue the furnishing of gas to the city of Akron and its inhabitants and take away from the streets its mains and pipes and, in short, its whole plant.

In seeking an answer to this question it will be necessary first to consider the nature of the franchise granted to the plaintiff in error by its charter and the extent of the obligation imposed upon it by its acceptance of the city ordinance under which it entered the city and served the public therein until September 26, 1908. The- distinction between franchises, privileges or powers of a corporation, on the one hand, and its duties, obligations or liabilities, on the other hand, is elementary. There are no obligations imposed upon the plaintiff in error by its charter, or by the statutes under which it was granted, except the requirement that it shall have a principal office to be located at Cleveland and that the company’s main line shall commence at points on the Ohio river and run thence through certain counties to Cleveland in Cuyahoga county. These with the further obligation imposed by statute (Section 6780, Revised Statutes) that the company shall allow no lapse in the exercise of its franchise of the extent of five years, constitute all of the positive conditions, so far as we are now concerned, which are imposed upon this company. It seems to us that when to this association of persons was granted the right to be a corporation “for any purpose for which individuals may lawfully associate themselves, except for-carrying on professional business” (Section 3235, Revised Statutes) the purpose is a privilege which may or may not be exercised to the full extent, just as individuals may modify their original designs to conform to circumstances. Therefore the statement in the articles of incorporation that the company is formed for the purpose of producing and furnishing gas to certain named towns and cities “and to other cities, villages and places in the counties aforesaid,” does not appear to us to be so indivisible that the company must conform to this purpose in all of such cities, villages or places or in none of them. As we construe the charter along with the statutes, the privilege conferred is of producing and transporting gas to each or all of the places named or described, and if to any' then in the manner described. The remedy for non-user or mis-user of the franchise lies with the state; and the defendant in error, the city of Akron, cannot invoke that remedy. Whatever rights the city may have to maintain this action, they must arise out of its contract with The East Ohio Gas Company; for that the ordinance passed in September, 1898, and its acceptance by the company constituted a contract will scarcely be disputed.

Whether a contract for the privilege of entering the streets of the city was necessary to the plaintiff in error or whether the defendant in error was competent to make it, is immaterial in this case. The consent of the city for that purpose was granted by the ordinance and it was accepted by the gas company; but no stipulation was made and accepted as to the time when the use of the streets for the purposes of the gas company should end. The language of the ordinance is, “That The East Ohio Gas Company, its successors and assigns, are hereby granted the right to enter upon the streets, alleys and public grounds of .the city of Akron, Ohio, * * * to maintain, operate, repair and remove mains and pipes * * * together with the right to construct and maintain, repair and remove all necessary regulators,” etc. Did the granting of this privilege or right and its acceptance constitute an agreement by the gas company that, having entered the city, it should remain there forever if the city should not permit it to withdraw? The logic of the defendant in error would seem to support an affirmative answer to this question. But if the company enters by virtue of the contract and can withdraw only by consent of the city, then the contract lacks mutuality; for we can discover no corresponding stipulation in favor of the company. It is true that the ordinance grants the right to enter and occupy the streets, but in respect to the time when it shall terminate its occupancy and withdraw, the ordinance is silent. May we infer from this silence that the gas company has a perpetual franchise in the streets? We are not now prepared to hold that the company has thus acquired such a perpetual franchise; and we feel quite sure that even the defendant in error, on more mature reflection, would not insist upon such a conclusion. This court laid it down as the law, in Railroad Company v. Defiance, 52 Ohio St., 262, 307, that: “Every grant in derogation of the right of the public in the free and unobstructed use cf the streets, or restriction of the control of the proper agencies of the municipal body over them, or of the legitimate exercise of their powers in the public interest, will be construed strictly against the grantee, and liberally in favor of the public, and never extended beyond its express terms when not indispensable to give effect to the grant.” The doctrine, as well as the judgment, in this case was affirmed in Wabash R. R. Co. v. Defiance, 167 U. S., 88. The same rule of construction was approved and followed in Blair v. Chicago, 201 U. S., 400, and in Cleveland Electric Ry. Co. v. Cleveland, 204 U. S., 116.

It comes then to this, that in the absence of limitations as to time, the termination of the franchise is indefinite and, to preserve mutuality in the contract, the franchise can continue only so long as both parties are consenting thereto. Or, to state it concretely, the contract being silent as to the duration of the franchise and the ten year agreement as to the price of gas having expired, the city may, under its power of. regulation, impose new conditions as to price and the gas company may accept or reject these. If the refusal to comply is final, the company necessarily incurs the penalty of forfeiture of its franchise to serve the people of the -city; but on the other hand, there being no provision to that effect in the original contract, the city cannot directly or indirectly deprive the gas company of its property without due process of law, when the latter withdraws from the further exercise' of its franchise. Cleveland Electric Ry. Co. v. Cleveland, 204 U. S., 116.

In accord with Sections 2478 and 2479, Revised Statutes, in Section 6 of the ordinance, the parties entered into an agreement regulating' the price of gas for ten years from and after the passage of the ordinance, and so far as it appears in this record, this agreement has been faithfully kept by both parties and it is not now a subject of controversy. But it has been suggested, rather than argued, that this clause in the ordinance, viz.: “And the council of said city of Akron shall not, during the period of ten years from and after the passage of this ordinance, pass any ordinances fixing or attempting to fix the rates at which gas shall be supplied, at any lower price than there set forth,” raises an implied contract that the city may regulate the price after the expiration of the ten year term. When the written contract is silent in regard to a matter of so much importance to both parties, it is not to be lightly presumed that it was intended to imply an agreement upon that point. The implication should clearly appear from the whole instrument. While the courts will give effect to that which clearly appears to be the intention of the parties, yet the safe rule appears to be as stated by Lord Cockburn in Churchward v. The Queen, L. R., 1 Q. B., 173, 195-196, as follows : “But in all these instances, where a contract is silent, the court or jury who are called upon to imply an obligation on the other side which does not appear in the terms of the contract, must take great care that they do not make the contract speak where it was intentionally silent; and above all that they do not make it speak entirely contrary to what, as may be gathered from the whole terms and tenor of the contract, was the intention of the parties. This I take to be a sound and safe rule of construction with regard to implied covenants and agreements which are not expressed in the contract.”

Keeping in mind this rule of construction, it seems to us that undoubtedly the city may regulate the price of gas after the expiration of the ten year term expressed in the contract, if the gas company continues to exercise its franchise in the city; but it may do so, not by virtue of the contract, but by virtue of the statute which empowers the city council to fix the price for a period not exceeding ten years. Having done so for a period of ten years from September 26, 1898, its power was not exhausted; but so long as the gas company continues to exercise its franchise within the city, the council may fix the price for any period not exceeding ten years, and so on until the gas company discontinues. This is in accord with the judgment o£ this court in Gas Light Co. v. Zanesville, 47 Ohio St., 35. The question there was whether Section 2478, Revised Statutes, could be applied to a company organized under the old constitution and which was endeavoring to disconnect its pipes from the street lamps and city buildings, but was at the same time continuing to supply the private consumers with gas. The question whether the gas company might wholly quit business in the city and withdraw by disconnecting and taking up its pipe lines, was- not in the case and was not considered. A reference to the twin case of Zanesville v. Gas Light Co., 47 Ohio St., 1, at page 10, will disclose the fact that by the ordinance under which the Zanesville Gas Light Co. obtained the privilege to lay its pipes in the streets and alleys of Zanesville, it was expressly provided that, “The Zanesville Gas Light Company shall during such time as they enjoy the privileges granted by this ordinance, supply the town council with such quantities of gas as may be by them required for public lamps at a price not exceeding,” etc. Therefore, when it was held in Zanesville v. Gas Light Co., supra, that the price of gas might be controlled by Section 2478, Revised Statutes, it followed as held in Gas Light Co. v. Zanesville, supra, that if the gas company refused to obey the second ordinance regulating the price it might be compelled by mandatory injunction to do so, “so long as it continues to exercise and enjoy its franchises as a gas company,” which franchises were to be a gas company in Zanesville only. If The East Ohio Gas Company were insisting upon a right to furnish gas to some of its patrons in Akron and at the same time refusing to do the same service to others, it is not doubted that the doctrine of the Zanesville case would -receive great consideration, notwithstanding that the original Akron ordinance does not contain the controlling provision which is found in the Zanesville ordinance. But that is not this case.

The defendant in error seems to be insistent that inasmuch as the plaintiff in error is a corporation serving the public, it in some way becomes absolutely subject to control by the public which it serves. The answer to this claim is very well expressed by the Supreme Court of the United States, speaking through Chief Justice Waite, in Munn v. Illinois, 94 U. S., 113, 126: “Property-does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in éffect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control.”

Defendant in error also claims that the statement made in the amended answer of The East Ohio Gas Company, that it intended to relinquish and surrender its privileges and franchises, granted to it by the ordinance of September 26, 1898, and wholly to retire from said city, is a mere threat, which is intended to intimidate the city of Akron and its inhabitants, and if carried out would be an unlawful discrimination. It does not appear in the record that the gas company is not making that declaration in good faith; and when it does so appear it will then be the proper time to consider it. The entire abandonment of its franchise in Akron and seeking its fortunes elsewhere within the charter limits, do not constitute unlawful discrimination as generally understood.

It is not deemed necessary to review and distinguish the numerous authorities cited for the defendant in error. We heartily assent to very many of them, but they do not seem to us to be applicable tó the precise issue which we here have under consideration.

Judgment reversed and judgment for plaintiff in error.

Crew, C. J., Summers and Price, JJ., concur.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    In the Matter of the Estate of Ferguson, Deceased.

      Allowance for tombstone by administrator — Section 6185, Revised Statutes — Intended as guide to probate court and administrators — Court without jurisdiction to fix maximum sum of expenditure, when — Monument' when not procured by widow — To be erected by administrator at expense of estate.

    Section 6185, Revised Statutes, which gives authority to the probate court to allow in settlement by an administrator any just and reasonable amount he may have expended for a tombstone or monument for the deceased, is intended as a guide to the court and to administrators in dealing with that subject, and such court is without jurisdiction, in advance of the settlement of the estate, to entertain an application by the administrator to fix a sum as a maximum to be expended by such administrator for that purpose, and order the administrator, in the event that such monument is not procured by the widow or next of kin, to erect such monument and charge the expense to the estate.
    (No. 11039
    Decided October 19, 1909.)
    Error to the Circuit Court of Ashtabula county.
    The controversy out of which this proceeding grows originated in the probate court of Ashtabula by the filing in that court, January 3, 1907, of an application by A. C. Tombes, administrator of C. D. Ferguson, deceased, praying an order as to a monument as hereinafter stated. It was shown by the application that the estate amounted to fifteen thousand dollars and more; that the widow of the deceased has applied to the administrator to provide a tombstone or monument, the same to be paid for from the funds of the estate, but the heir-at-law has refused to consent to such expenditure. Three hundred dollars was suggested as a reasonable ' amount for the purpose, and the application asked the court to determine the maximum amount of the funds to be so expended and to direct the administrator to erect such monument at a cost not exceeding such amount and carry the same into his account to be filed with the court.
    After notice to the heir-at-law the matter was, on January 8, 1907, heard by the court on a demurrer of the heir-at-law to the application. The demurrer was overruled, and January 22, 1907, a hearing was had upon evidence. Upon consideration the court found the sum of three hundred dollars a reasonable amount to be expended and ordered that in case the widow and next of kin failed to erect a suitable monument by July 7, 1907, the administrator shall erect such monument at the grave of deceased, the cost not to exceed three hundred dollars and charge the expense so incurred to the estate.
    From this finding and order error was prosecuted by the heir-at-law to the court of common pleas, by which court the finding and judgment of the probate court was reversed. From this judgment of reversal the administrator prosecuted error to the circuit court which court affirmed the judgment of the common pleas. The administrator seeks in this court a reversal of the judgment of the circuit and common pleas and an affirmance of the judgment of the probate court.-

      Messrs. McGiffert & Ullman; Mr. M. A. Soules and Mr. H. E. Starkey, for plaintiff in error, cited and commented upon the following authorities:
    1 Rockel Ohio Probate Practice, Sections 20, 22, 24, 651, 649; Hoffman, Admx., v. Fleming, 66 Ohio St., 155; Sheldon v. Newton, 3 Ohio St., 500; Shroyer v. Richmond, 16 Ohio St., 455; Clapp v. Banking Co., 50 Ohio St., 528; Brown, Exr., v. Reed, 56 Ohio St., 264; McLaughlin v. McLaughlin, 4 Ohio St., 508; Railroad Co. v. O’Harra, 48 Ohio St., 343; Doan et al. v. Biteley, 49 Ohio St., 588; 11 Am. & Eng. Ency. Law (2 ed.), 1265; Fairman’s Appeal, 30 Conn., 205; Philips v. State, ex rel., 5 Ohio St., 122; Section 8, Article 4, Constitution of Ohio; Sections 524, 537 and 6185, Revised Statutes.

      Mr. C. S. Mauk and Messrs. Hoyt, Munsell & Hall, for defendant in error, cited and commented upon the following authorities:

      Davis v. Davis, 11 Ohio St., 386; Jones et al. v. Savings Co., 18 C. C., 189, 10 O. C. D., 41; Clapp v. Banking Co., 50 Ohio St., 528, 35 N. E. Rep., 3081; Commissioners v. McGee et al., 11 O. C. D., 106, 20 C. C., 201; Jones, Admr., v. Green, 11 O. C. D., 548, 21 C. C., 96; Hoffman, Admx., v. Fleming, 66 Ohio St., 143; 64 N. E. Rep., 63;
      Jones et al. v. Wright, Trustee, 24 O. C. C., 649; 1 Woerner Am. Law of Administration (2 ed.), Section 142; Armstrong v. Grandin, 39 Ohio St., 368; Swearingen, Admr., v. Morris, 14 Ohio St., 424; Cox, Admr., v. John, 32 Ohio St., 532; Curtis v. Bank, 39 Ohio St., 579; Isom v. Railway Co., 29 C. C., 583; Section 8, Article 4, Constitution of Ohio; Sections 524 and 6185, Revised Statutes.
   Spear, J.

The ground of the demurrer was that the probate court was without jurisdiction to entertain and act upon the application, and that is the question made hére. If there was jurisdiction in the probate court of the application its action in approving of the administrator’s recommendation and in sustaining the application is without question; if it was without jurisdiction it follows as matter of course that the attempted order and judgment were at least erroneous.

We suppose it cannot be disputed that to maintain the jurisdiction of the probate court it must be shown either that the erection of a monument at the grave of the deceased is á step in the settlement of the deceased’s estate, or is an expenditure of the funds of the estate authorized by some legislative provision.

Manifestly the former proposition cannot be maintained. To settle the estate is to collect and marshal the assets, pay the debts, and distribute according to law and the order of the court the balance found for distribution. The erection of a monument at the grave of the deceased is intended to do honor to and to perpetuate his memory. Funeral expenses, those of last sickness and expenses of administration, and certain allowances to the widow and children, if any, are by our statute in effect classed as debts of the estate, and are directed to be paid in their order. The provision for payment of funeral expenses rests upon the solid ground of necessity, and it would seem clear that the erection of a monument to the memory of the deceased could not be regarded as a necessity, and hence could not, by any stretch of liberality, be classed' within the terms of our statute as funeral expenses. And, independent of statutory authority, the administrator has no duty in that regard. Such provision rests upon a matter of sentiment, and whatever duty to satisfy that sentiment attaches to the living devolves upon the heir-at-law, the next of kin. Moreover, such heirs in most instances take by inheritance the land on which the monument would be placed and thus succeed to the title to the monument itself. We look, therefore, to the statute to ascertain what, if any obligation, rests upon the administrator.

Section 6185 of the Revised Statutes affords the only provision on the subject. We quote: “The court may also, in settlement, allow, as a credit to the executor or administrator, any just and reasonable amount expended by him for a tombstone or monument for the deceased, and for any just and reasonable amount he may have paid to any cemetery' association or corporation as a perpetual fund for caring for and preserving the lot on which said deceased is buried; but it shall not be incumbent on any executor or administrator tc procure a tombstone or monument or to pay any sum into any such perpetual fund,”

The general assembly, having thus had the subject before it, it is reasonable to assume that that body enacted all the legislation respecting the subject-matter, and devolved upon the probate court all the power to make orders respecting that matter, that it was deemed wise to provide. The statute, it will be noted, devolves no affirmative duty on the administrator in that regard, but, on the contrary, distinctly provides that it shall not be incumbent on the administrator to procure such monument. Not only the apparent purpose, but the expressed purpose of the statute, is to leave the matter to the judgment of the administrator in the first instance subject, however, to the approval or disapproval of the probate court upon the presentation to the court of his settlement account. It may be that, in the judgment of the general assembly, the question of such expenditure could be more wisely determined upon the showing to the court of the actual condition of the estate upon final settlement than at an earlier time and during the process of the estate’s settlement,, the question then coming as a new question, and the judgment of the court being free from embarrassment by reason of any previous attempted authority or direction on its part given to the administrator. Possibly some other method of treating the subject would have been wiser. We are not concerned with that. It is the court’s duty to take the statute as it finds it and give to it such force and effect as its language plainly imports, rather than to seek to en-graft upon it a result foreign to its manifest purpose.

Some decisions of courts of other states .are called to our attention by counsel for plaintiff in error. Perhaps the one having nearest application is that of Fairman's Appeal, 30 Conn., 205. A testator had devised to one Booth, subject to a life estate of the widow, certain real estate “on condition that he pay at my decease all my just debts and funeral expenses.” In his account the executor (Booth) had charged against the estate the expense of two stones placed at each -end of the grave, so placed to mark,- define and protect it, the amount so charged being fifteen dollars. The court held that such stones might be regarded as part of the funeral- expenses, and should be paid for by the executor in his individual capacity and not charged to the estate, the court being careful, however, to add that it is not intended to hold that an administrator may procure such stones in all cases at the expense of the estate. It does not appear that there existed any statute of Connecticut bearing on the subject. It is difficult to perceive that this decision materially aids the counsel’s contention. We do not find it necessary to review other authorities cited.

Nor does the provision of our statute (section 524) giving to the probate court power “to direct and control the conduct and settle the accounts of executors and administrators,” confer jurisdiction to entertain and act upon an application of the character here presented.. Indeed this provision •hardly advances the argument, for while this section authorizes that court to control the conduct of administrators such power can relate only to such orders in respect thereto as the court is authorized by statute to make, that court being a court, as held in Davis v. Davis, 11 Ohio St., 386, and many cases since, “one of special and limited jurisdiction.” It is held by Peck, J., in the opinion: “Its jurisdiction in probate and testamentary matters even is special and not general. * * * This is true of all the jurisdiction thereby conferred; they are all grants of specific and not general jurisdiction, and the auxiliary and incidental powers of the court are expressly limited to such as are necessary and proper to carry into effect the powers thereby expressly granted.” It would seem clear that the power to hear and adjudicate in'advance of settlement by- the administrator the matter of expenditure for a monument would be neither necessary nor proper to carry into effect the power to dispose of such question upon settlement of the estate.

The foregoing considerations lead to the conclusion that the probate court was without jurisdiction to entertain and act upon the application of the administrator for an order respecting the purchase of a monument, and that its order in that matter is wholly without legal effect. It follows that the judgment of both the circuit and common pleas courts will be

Affirmed.

Crew, C. J., Shaucic and Price, JTJ., concur.


author: Summers, J.

text:
    The City of Akron et al. v. Dobson.

      Bond issue by municipality — Section 2835, Revised Statutes — Bond issue for equipping buildings of fire department — For apparatus other than fire engines — Interpretation of Section 2835-27, Revised Statutes — Power of municipal corporation to appropriate money for specific purpose — Requirement of law that money be in treasury before appropriation — Section 1536-205, Revised Statutes — Does not apply to appropriation from sale of bonds, when.

    1. A municipal corporation may, under Section 2835, Revised Statutes, issue its bonds for the purpose of equipping buildings used by its fire department with apparatus other than, or in addition to fire engines. The special provisions of paragraph 27 do not govern the general provisions of paragraph 2 of that section.
    2. The council of a municipal corporation may, by ordinance, appropriate money and authorize the directors of public safety to enter into contracts for an authorized purpose, and in such case the particular contract made by the directors to effect that purpose, if within the appropriation and the authority, does not have to be approved by council.
    3. Section 1536-205, Revised Statutes, providing that no contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or other order for the expenditure of money, be passed by the council or by any board or officer of the municipal corporation, unless the auditor of the corporation shall first certify to council that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn and not appropriated for any other purpose, does not apply to an ordinance appropriating the money obtained by council, from a sale of bonds made by it, to the purpose for which the bonds were sold.
    (No. 11709
    Decided October 19, 1909.)
    Error to the Circuit Court of Summit county.

      The facts are stated in the opinion.

      Mr. Nicholas M. Greenkerger, city solicitor, Mr. Jonathan Taylor, assistant city solicitor, and Messrs. Rogers & Roivley, for plaintiffs in error.
    The sole question presented in the record is whether the city of Akron under the provisions of the so-called Longworth Act, Section 2835, Revised Statutes, is authorized to issue bonds and disburse the proceeds by the purchase of the apparatus in question. The plaintiff relies upon two sections of this act. Sections 2835-27 and 2835-2, Revised Statutes.
    Under sub-section 2835-27 the plaintiff is clearly authorized to purchase the apparatus herein described. By its express terms it empowers the city to issue bonds to purchase “fire engines.” The apparatus in question is a fire engine. Technically it is called a combination chemical engine and hose wagon. The name “combination chemical engine and hose wagon” is descriptive in its character and describes the particular class of fire engines to which this apparatus belongs.
    The restricted construction placed upon this statute by the circuit court, limiting the term “fire engine” to steam fire engine, is not warranted either by the plain language of the statute or the evident intention of the legislature as gathered from the facts and circumstances of which they must be presumed to have had knowledge. Definition of “fire engine,” in Century Dictionary and Standard Dictionary.

      The language of Section 2835-27, Revised Statutes, is broad and comprehensive. It was intended to confer upon the city full power to make a building useful after it was erected by equipping it and enjoying it. Definition of “equip” and “equipment” in Standard Dictionary and Century Dictionary.
    The courts upon a number of occasions have had occasion to define the word “equipment” and we call attention to these definitions found in 3 Words & Phrases Judicially Defined, 2432. Gleim v. Steamboat Belmont, 11 Mo., 112; Rubey v. Coal & Mining Co., 21 Mo. App., 159; Appeal Tax Court v. St. Peter’s Academy, 50 Md., 321; People v. Railway Co., 52 N. E. Rep., 292; Railway Co. v. Hoyt, 89 Wis., 314, 62 N. W. Rep., 189; Railway Co. v. Sandal, 3 Willson (Tex.), 379.
    As to the construction which should be given acts such as the one under consideration we call attention to the case of Rock Creek v. Strong, 24 Law Ed., 815.
    The council could not, and it was not intended, under the new municipal code, that it should do more than in a general way authorize the expenditure.
    An interesting case bearing upon this phase of the controversy is that of Ampt v. Cincinnati, 6 N. P., 208, 17 C. C. 520, 60 Ohio St., 621.
    If the court should, however, be of the opinion that the approval of the council of the contract in question is necessary., that would not authorize a-permanent injunction, but only a temporary order until the council could have an opportunity to act in the premises.

      We insist that the requirements of the statutes were fully complied with. Sections 1536-618 and 1536-690, Revised Statutes. .
    These two statutes must be construed together. The second qualifies the first and specifically states just what action council must take.
    We submit that the council by ordinance passed April 6, 1908, authorized the directors of public safety to enter into the contract in question.
    Some light is thrown upon the question here involved by the case of Emmert v. Elyria, 74 Ohio St., 185. There the court had under consideration Section 1536-215, Revised Statutes.
    The real test to determine the validity of the expenditure of the money realized from the sale of the bonds, — if this court should be of the opinion that the only authority the city has to make such expenditure, is Section No. 27 of the so-called Longworth Act, Section 2835, Revised Statutes, is whether such apparatus is commonly and generally known and classed as a fire engine! If so, the expenditure for the purchase of the same becomes legal notwithstanding it may have been called equipment.

      Messrs. Grant., Sieber & Mather and Messrs. Otis, Beery & Otis, for defendant in error.
    1. The council did not authorize, or attempt to authorize, the directors of public safety to purchase the apparatus in question.
    2. No part of the proceeds from the sale of bonds could lawfully be expended for the purchase of apparatus of such kind.

      We shall discuss these two propositions in their order.
    1. Approval of council is wanting. The contract awarded by the directors of public safety was for the expenditure of $13,500.00, and the council took no- action whatever with respect to authorizing or approving the contract. Sections 1536-618 and 1536-690, Revised Statutes.
    2. The apparatus cannot lawfully be paid for out of proceeds from the sale of bonds. It is contended by counsel for plaintiffs in error that authority to issue bonds for purchasing combination hose and chemical wagons is conferred either by the paragraph of Section 2835, Revised Statutes, numbered 2, or by the paragraph thereof numbered 27.

    It is clear that paragraph 27 does not authorize bonds for purchasing apparatus of the kind in question, unless a combination hose and chemical wagon is a fire engine. But, as hereinbefore pointed out, “a fire engine,” as mentioned in said, ordinance 1573, cannot possibly be held to include three combination hose and chemical wagons. It is, therefore, apparent that paragraph 27 does not furnish authority for purchasing the apparatus with funds derived from the sale o-f bonds.
    And it is equally clear that paragraph 2 does not authorize bonds for this purpose. It is true that this paragraph authorizes bonds “for equipping and furnishing” “any building authorized by this, section.” The “equipping” and “furnishing” therein mentioned cannot, however,- properly be construed to include apparatus of a fire department designed for extinguishing fires, for the reason that a later paragraph of the section, namely, paragraph 27, above set forth, enumerates, in the most explicit language, the several classes of such apparatus for which bonds may be issued.
    It is evident from the language of these two paragraphs of said Section 2835 that the general assembly intended that bonds may be issued for purchasing only the expensive apparatus designated “fire engines” and “fire boats,” and that payment for all other classes of apparatus shall be made out of current revenues.
    The construction which we have placed upon the foregoing paragraphs of said Section 2835 are in strict accord with the elementary and approved rule that when there are in an act specific provisions relating to a particular subject, they will govern in respect to that subject, as against general provisions contained in the same act. Sutherland on Statutory Construction (1 ed.), Sections 158, 216, 222; State, ex rel., v. McGregor, 44 Ohio St., 628; Gas Co. v. Tiffin, 59 Ohio St., 421; Section 1536-205, Revised Statutes.
   Summers, J.

In March, 1908, the council of the city of Akron passed an ordinance providing-for a bond issue of thirty thousand dollars, for the purpose “of purchasing real estate for public purposes, to-wit, for erecting thereon and'equipping a building necessary for the fire department, and for purchasing a fire engine, and for improving and equipping fire stations 2, 3, 5 and 7, all of said fire stations being buildings used for public purposes, to-wit, for the fire department of said city.”

Prior to the 6th day of April, 1908, the bonds were duly issued and sold, and the proceeds paid into the treasury of the city. Upon the 6th day of April, 1908, the council passed an ordinance authorizing and empowering the directors of public safety to expend the sum of thirty thousand dollars, realized from the sale of said bonds, for the purpose stated in the first mentioned ordinance. The last mentioned ordinance further authorized the directors to enter into contracts “with the lowest and best bidder, after advertisement according to law.”

In June, 1908, the directors of public safety advertised for bids for three combination hose and chemical wagons, in accordance with specifications adopted by the directors. The Webb Motor Fire Apparatus Company bid to furnish three combination hose and chemical wagons, in accordance with the specifications, for $11,950, or according to specifications submitted by the company for $13,500.

On July 7, 1908, the directors awarded the contract to The Webb Motor Fire Apparatus Company for furnishing said engines according to the company’s specifications for-$13,500.

In November, 1908, the compan)'' delivered in said city the three combination hose and chemical wagons provided for by the contract. The wagons were not delivered to the directors, but remained in the custody of the company.

On November 27, • 1908, the defendant in error, plaintiff below, requested the citv solicitor to a only for an injunction to restrain the directors from making payment for the apparatus. The city solicitor did not make the application, and on November 30, 1908, the plaintiff brought suit for an injunction.

Thereafter on December 11, 1908, the directors passed a motion rejecting the bid of The Webb Motor Fire Apparatus Company, and all other bids under its former advertisement, and re-advertised for bids for three combination hose and' chemical wagons in accordance with new specifications which had been adopted by the directors, and which were substantially the same as the specifications which had been theretofore submitted by said company. Bids were received from The Webb Motor Fire Apparatus Company and from one other company, each in the sum of $13,500 to furnish such apparatus.

On December 23, 1908, the bid of one company was'rejected on the ground of informality and the bid of The Webb Motor Fire Apparatus Company was accepted and a contract entered into with it. A supplemental petition was filed setting out the transactions subsequent to the filing of the petition. The court of common pleas found the issues in favor of the defendants and dismissed' the petition. On appeal, 'the circuit court found the facts above stated, and also that the combination hose and chemical, wagons were necessary fire apparatus in cities the size of the city of Akron, and that in the judgment of the directors of public safety it was necessary to purchase said wagons for use in stations 2, 3 and 5 of said city, but enjoined the directors from paying for the same out of the proceeds of said sale of bonds on the ground that the city was not authorized by law to issue bonds for that purpose.

It is contended, first, that the city council neither authorized nor approved the contract; second, that the city auditor did not certify to the council that the money was in the city treasury to meet the contract, and third, that the municipal code does not authorize the issuing of bonds for the purchase of such apparatus.

Section 283S, Revised Statutes, provides that the council of any municipal corporation shall have power to issue its bonds, whenever the council by an affirmative vote of not less than two-thirds of the members elected or appointed thereto shall by resolution or ordinance, deem the same necessary for any of the purposes provided for in the section, among which purposes are these: “2.

For extending, enlarging, improving, repairing or securing a more complete enjoyment of any building or improvement authorized by this section, and for equipping and furnishing the same.” “27. For erecting any building necessary for a fire department, purchasing fire engines, fire boats, constructing water towers, and fire cisterns, and paying the cost of placing underground the wires or other signal apparatus of any fire department.” The contention is, that paragraph 27 expressly mentions fire engines; that the maxim expressio unius est exclusio alterius applies, and that a combined chemical and hose wagon is not a fire engine, and that if it is, the ordinance does not authorize the purchase of three; and that recourse to paragraph 2 cannot be had under the well settled rule of statutory construction, that where there are in acts specific provisions relating to a particular subject, chey will govern in respect to that subject as against general provisions contained in the same act.

We think counsel take too narrow a view of the statute. The original act was passed in 1879 (76 Ohio Laws, 158), and as it remained until the passage of the Longworth Law, 1902 (95 Ohio Laws, 318), mentioned not only fire engines, but also hose and apparatus. The purpose of the act was to enable a city, with the approval of the electors, to issue bonds for any improvement for which it might levy a tax. The evident purpose of the original provisions of the act was to enlarge the specific provisions or to cover omissions. Rules of interpretation are adopted to assist in ascertaining, and not to defeat, the intention of the legislature, and hence the. rules referred to are not applicable. The purpose of the Long-worth Law was to make the statute so comprehensive as to leave no excuse for constant appeals to the general assembly for special laws authorizing the issuing of bonds, and if the purpose of the general provisions was, as has been suggested, then the omission of the words “hose and apparatus” from paragraph 27 does not indicate an intention to limit the general provisions of paragraph 2.

The next question is, whether the council authorized the contract? Section 154 of the municipal code of 1902 (Section 1536-690, Revised Statutes), provides as follows:

“The directors of public safety shall have power to make all contracts and expenditures of money for acquiring lands for the erection or repairing of station houses, and for the erecting and building of all station houses, police stations, fire department buildings, fire cisterns, and plugs that may be required, and for the purchase of engines, apparatus, and all other supplies necessary for the police and fire departments; provided that no obligation involving an expenditure of more than five hundred dollars shall be created except upon the approval of the city council and by written contract which shall be awarded to the lowest and best bidder after advertising for ten days in a newspaper of general circulation in the city. They shall make no sale or disposition of any property belonging to the city without first being authorized by resolution or ordinance of the city council.”

Section 123 of the municipal code (Section 1536-618, Revised Statutes), provides as follows:

“The powers of council shall be legislative only, and it shall perform no administrative duties whatever and it shall neither appoint nor confirm any officer or employe in the city government except those of its own body, except as may be otherwise provided in this act. All contracts requiring the authority of council for their execution shall be entered into and conducted to performance by the board of officers having charge of the matters to which they relate, and after authority to make such contracts has been given and the necessary appropriation made, council shall take no further action thereon.”

Prior to the adoption of the municipal code of 1902, the city council was an administrative, as well as a legislative body, and one of the reforms contemplated by the adoption of the new code was to make its powers legislative only. The two sections referred to do not make clear the precise mode of procedure when an expenditure of more than five hundred dollars is to be made by the directors of public safety. Bids must be advertised for, and a written contract made by the directors with the lowest and best bidder, and the necessary appropriation must be made, and the expenditure be approved by the council, but whether the appropriation and the approval may be made before bids are received and a contract entered into, or whether the exact amount of the expenditure, and the precise contract to be made, must be approved by the council, is not - definitely stated. If the latter is the mode prescribed, then the directors of public safety, instead of being one of the departments of the city, invested with a part of the executive power and authority of the city government, are merely a committee of the city council. The council provides the money for carrying on the government, either by a levy of taxes, or an issue of bonds, and it is proper that it should have some control over the expenditures, but considering these sections in the light of the purpose of the code we think their requirements are met by an ordinance making an appropriation and stating generally the purpose for which it is made, and authorizing the directors to enter into contracts to effect that purpose If the directors do not have or retain the confidence of the council, it is in the power of the council to be more spécific.

It is also contended that the contract is void because the auditor did not certify to the council that the money required for the contract was in the city treasury as prescribed by Section 1536-205, Revised Statutes. The supplemental petition avers that the auditor did not so certify. This is denied by the answer in the circuit court, and that court does not make any finding upon that issue. This contract cannot create an obligation against the city in the nature of a debt, to meet which no funds have been provided. The council issued and sold the bonds and appropriated the proceeds to meet the expenditures it authorized, and any obligations incurred by the ordinance under the authority conferred are payable only out of the appropriation, so that the section can have no application to such a case.

Judgment is reversed, the injunction dissolved and the petition dismissed.

Reversed.

Spear, Davis, Si-iauck and Price, JJ., concur.