author: Minshall, C. J.

text:
    Zanesville v. Gas-light Co.

      Municipal Corporations — Gas Companies — Control of — Section 2478 Revised Statutes Construed.

    1. A gas-company in a city or village, chartered by an act of the legislature passed before the adoption of the present constitution of the state, is subject to the provisions of an ordinance regulating the price of gas, adopted by the council of the city or village, under the authority conferred by § 247S Rev. Stats., where the right to fix its own prices is not expressly conferred on the company by the terms of its charter.
    2. Whenever an incorporated company, in any action, asserts a right against another person based upon an assumed franchise or power, the person against whom the right is so asserted may, as a defense, deny the existence of such franchise or power.
    (Decided December 10, 1889.)
    Error to the District Court of Muskingum county.
    • The action below was a suit commenced by the Gas Company against the city, to enjoin it and its agents from using the gas of the company.

      The petition is as follows:
    The Zanesville Gas-light Company, for cause of action against the defendant, says: that the defendant, the City of Zanesville, is a municipal corporation duly organized under the laws of Ohio, and as such is successor to the town of Zanesville. That by an act of the general assembly of the state of Ohio, passed the 12th day of March, A. D. 1849, this plaintiff was duly and legally incorporated, and that it has ever since been engaged in the manufacture and sale of gas in the City of Zanesville, Ohio. A copy of said act of the general assembly is hereunto attached, marked “A,” and made part of this petition. That on the 4th day of June, 1849, the Mayor, Common Council and Recorder of the then town (now the defendant, the city) of Zanesville, duly and legally passed an ordinance authorizing the plaintiff to occupy and use the streets and alleys of said town (now city), for the purp>ose of laying therein their .gas pipes to convey gas to the purchasers thereof. That the terms upon which plaintiff was authorized by said ordinance to lay its pipes in the streets and alleys of said town were that it, said plaintiff, should furnish gas to said town for the purpose of lighting the same at a price not exceeding $2.50 per thousand cubic feet, or $15 per burner per annum to the public lamps of said town. A copy of said ordinance is hereto attached, marked “ B,” and made part of this petition. That on the 11th day of June, 1849, this plaintiff accepted, in writing, the terms of said ordinance, and thereupon this plaintiff proceeded to lay its pipes in the streets and alleys of said town, and that up to the present time has continued to occupy said streets and alleys for the.purposes aforesaid, and up to the time of the transactions hereinafter complained of has, with the acquiescence of said City of Zanesville, enjoyed the privilege of excavating and digging in said streets and alleys for the purposes of laying, cutting, repairing and taking up its pipes at pleasure. That since the passage of said ordinance and its acceptance by this plaintiff, the plaintiff has furnished to the defendant, the City of Zanesville, all the gas it required for the purpose of lighting said town according to the terms of said ordinance, excepting when by mutual consent and agreement said terms have been varied. That said gas has been furnished from time to time under contracts made with said City of Zanesville, and that on the first day of April, 1884, all contracts theretofore existing between the City of Zanesville and this plaintiff expired (except as hereinafter stated), and since the first day of April, 1884, there has been no contract between the said city and plaintiff, except for the supply of gas to a few posts in said city, which are supplied under a special contract dated the 8th day of October, 1883. That said plaintiff has never supplied gas to said city except under written contracts for the same. That on or about the 12th day of February, 1884, the plaintiff notified the defendant, the City of Zanesville, that it was unwilling to furnish gas to said city after the first day of April, 1884, except to said few gas posts mentioned in said special contract, unless a contract therefor should be first made between it and said city, in writing. That on the 10th day of March, 1884, the defendant, the City of Zanesville, caused its clerk to advertise for proposals to light the street lamps and public buildings of said city after April 1,1884, and reserved the right in said proposal to reject any and all bids. That the plaintiff in response to said advertisement, in writing proposed to furnish gas to light said city at the price of $1.40 per thousand cubic feet for all gas which would pass through meters, and for the sum of $14.50 per burner or post for the public lamps of said city. That the city has not accepted the offer so made. That the plaintiff is ready and willing to furnish to the defendant, the City of Zanesville, the gas necessary to light said city according to the terms of said proposal, or according to the terms of said ordinance of June 4, 1849, whenever the said city is willing to contract therefor. That by mutual consent it has been so arranged between plaintiff and the defendant, the City of Zanesville, that all the pipes laid in said streets and alleys from which the gas is taken to supply the various lamps of said city are the property of this plaintiff; and also that the burners of the street lamps of said city are also the property of this plaintiff; but that the pipes leading from the main pipes of this plaintiff to and through the posts, together with the posts and lamps thereon are the property of the defendant, the City of Zanesville; and by like mutual consent that the said pipes of the city have been attached to the pipes of this plaintiff without any means of shutting off the gas-from said lamps of the city except by cutting the pipes belonging to this plaintiff, or by disconnecting the same from the pipes of said defendant, the City of Zanesville; and that the pipes have been by such mutual consent so arranged that the gas cannot be shut off from the city lamps along the line where there are private consumers without also shutting the gas off from said private1 consumers, without disconnecting said pipes as aforesaid. That on the 28th day of January, 1884, the defendant, the City of Zanesville, claiming the right to fix the price that it and the private consumers- in the City of Zanesville should pay for the gas supplied thereto by the plaintiff, passed an ordinance, of which a copy is hereunto attached, marked “ C,” and made part of this petition; and the defendant, the City of Zanesville, claims that the plaintiff is by law bound to furnish it gas for the purpose of lighting said city at the prices specified in said ordinance. That the plaintiff was created before the adoption of the present constitution of Ohio, and the plaintiff avers that it has never accepted any of the provisions of Title Two, Part Second, of the Rev. Stats, of Ohio, or the provisions of any laws of the State of Ohio passed since the adoption of the present constitution of Ohio; and the plaintiff avers that it has never taken any action under or in pursuance of any of the provisions of Title Two, Part Second, of the Rev. Stats., or any laws of Ohio passed since the adoption of the present constitution. That this plaintiff is not governed by any law passed by the legislature of Ohio since the adoption of the present constitution of Ohio; and the plaintiff avers that it is gov-. erned and controlled only by the laws in force on the 12th day of March, 1849, when it was created. That the defendant, the City of Zanesville, refused to enter into any contract fixing the price of gas to be furnished by the plaintiff to the said City of Zanesville, defendant. The City of Zanesville having failed to consider the-said bid of this plaintiff to light said public lamps and public buildings of said city, the plaintiff on the 19th day of April, 1884, requested said defendant, the City of Zanesville, to either reject or accept its said bid on or before the first day of May, 1884. The said city has up to the present time ignored said request, and the city council of said City of Zanesville, defendant, refused to allow said paper to be read in its presence. On the 26th day of April, 1884, this plaintiff again.notified the • defendant, the City of Zanesville, Ohio, that it would not furnish any gas for the lighting of the public lamps and public buildings of said city, except under a written contract to be made by the plaintiff and the said defendant, the City of Zanesville, and on said last named date this plaintiff requested and directed said city, defendant, not to use any gas for any purpose after said date, except to the following named gas posts, to wit: One on Turner street and Wickham alley; one on Park street and Maple alley; one on Pearl and Willow streets; one on West Main street and Book’s alley; one on North Downer street; one on Wheeling road, at'W. Harris’ stable; one on Fell street, Fourth Ward; one bn East Pierce street, Ninth ward; two on Adamsville Road extension; one on West Main and Hedge streets; and two on Chapman street. That the defendant, the City of Zanesville, Ohio, disregarded said notice and request,-and has since said time continued to use the gas of this plaintiff in the public streets and alleys of said city, and threatens that it will continue to use said gas at its pleasure, without the consent of this plaintiff. That afterwards this plaintiff removed its burners from about two hundred and fifty of the public lamps of said city; said removal was made carefully, and the pipes of said city were carefully capped, and no injury to said posts, pipés or’lamps was done. That on or about the 15th day of May, 1884, this plaintiff desiring to disconnect its pipes from the pipes belonging to the said city, defendant, leading to the lamp posts of said city — in all places on its said main pipe’s from which and where no private consumers were furnished, with gas — proceeded to dig down to its said pipes and cut the same, but the defendant, the City of Zanesville, for the purpose of preventing this plaintiff from cutting its (this plaintiff’s) pipes, and thereby stopping the flow of gas to the public lamps of said defendant, the City of Zanesville, by force prevented the employees of this plaintiff from disconnecting its pipes from the public lamps of said city as aforesaid. The said defendant, the City of Zanesville, without the consent of this plaintiff, and against its protest, has placed burners on a large number of said public lamps— from which this plaintiff removed them as aforesaid — and is now using, and threatens to continue to use the gas of this company (the said plaintiff) without its consent, and without any contract therefor. This plaintiff desires to disconnect its pipes from all the pipes of the said city leading to the public lamps of said city, for the purpose of preventing the said defendant, the .City of Zanesville, from using its gas against its consent, and without a contract therefor, and unless it is permitted to do so, it will sustain great and irreparable damages in this, to wit: It will be compelled to bring many suits against said defendant, the City of Zanesville, to recover for the gas thus appropriated by said defendant, the City of Zanesville, to its use; and will be compelled to go to great expense in bringing and prosecuting said suits; and will be subjected to vexatious and unreasonable delay in recovering from said defendant for the value of said gas so used; and further, that if the gas of this plaintiff is permitted to flow from the pipes of this plaintiff into the pipes of said defendant, the City of Zanesville, this plaintiff will suffer great and irreparable loss in the matter of pressure, leakage, and condensation of said gas, although the city ceases to use the gas from said public lamps. That the pipes of this plaintiff can be separated from the pipes belonging to said defendant, the City of Zanesville, without doing any damage to the pipes of said city, or to the streets and alleys of the defendant, the City of Zanesville. This plaintiff desires to remove its burners from a large number of public lamps belonging to said city, but the defendant, the City of Zanesville, threatens by force to prevent this plaintiff from removing its burners, and also threatens by force to prevent this plaintiff from severing its pipes from the pipes of the defendant, the City of Zanesville; and this plaintiff avers that, unless the defendant, the City of Zanesville, its officers, servants azid employees shall be restrained by the order of this court, this plaintiff will be prevented from removing said burners, severing its said pipes, and otherwise protectizig and taking care of its property, to its great and irreparable damage. Azrd the plaizitiff further avers that, unless restrained by the order of this court, the defendant, the City of Zanesville, will continue to appropriate to its own.use, without the cozisent of this plaizitiff, and without any contract therefor, and without any peaceable means on the part of this plaintiff izi preventing the sazne, the gas of this • plaintiff, to its great and irreparable damage. The defendant, Williazn McCoy, is the mayor of the City of Zanesville, Ohio, and as such is chief of the police force of said city. The defendant, Hugh Fineral, is lieutenant of said police force of Zanesville, Ohio. The defendazrt, Zachariah T. Reed, is the marshal of said city, and Asher Sealover, defendant, is deputy marshal of Zazzesville, Ohio.
    Wherefore the plaintiff prays that the defendants, and each of thezn, their officers, agents, servants and employees may be, by the order of this court, restrained azid enjoined from us-. i'ng the gas of this plaintiff, except in the public lamp posts for which there is a subsisting contract as above stated; that said defendants, and each of them, their officers, servants, agezits and employees may also be restrained and enjoined, by order of this court, from preventing this plaintiff from removing its burners from the public lamps of said defendant, the City of Zanesville; and that said defendants, azid each of them, their officers, servants, agents and employees may be restrained and ezijoined, by order of this court, from preventizig this plaintiff, its officers, agents, servants and employees from disconnecting the said pipes of this plaintiff and the pipes of the defendant, the City of Zanesville, and from taking care of and preserving its said property, and upon the final hearing of this cause that said, restraining order may be made perpetual.
    A. W. Train,
    P. H. Southard and Henry R. Stanbery,

      Attorneys for the Zanesville Gas-light Company, Plaintiff.

    “A”
    AN ACT,

      To Incorporate the Zanesville Gas-light Company.

    Sec. 1. Be it enacted by the General Assembly of the State of Ohio, That George James, James Raguet, Joseph Galigher, John A. Adams, George A. Jones, William Galigher, James Y. Cushing, Stephen R. Hosmer, Adam Peters, and James L. Cox, and their associates be, and they are hereby created a body politic and corporate, with perpetual succession, by the name and style of the Zanesville Gas-light Company, and by that name shall be capable in law of contracting and being contracted with, suing and being sued, defending and being defended, in all courts and places, and in all matters whatsoever, with full power to acquire, hold, occupy and enjoy all such real and personal estate as may be necessary and proper for the construction, extension and usefulness of the works of said company, and for the management and good government of the same, they may have a common seal, and may alter the same at pleasure.'
    Sec. 2. The corporation hereby created shall have full power and authority to manufacture and sell .gas to be used for the purpose of lighting the town of Zanesville and the streets thereof, and any buildings, manufactories, public places, or houses therein contained, and to erect necessary works and apparatus, and with the consent of the town council of said town, to lay pipes for the purpose of conducting the gas in any of the streets or alleys thereof. •
    Sec. 3. The capital stock of • said company shall be fifty thousand dollars, to be divided into shares of twenty-five dollars each, to be subscribed and paid for in such installments and -at such times as may be prescribed by the by-laws and rules -of the company.

      Sec. 4. The real estate to be held by the company shall not exceed twenty-five thousand dollars in value.
    Sec. 5. The stockholders shall have power to make such by-laws and rules for regulating the concerns of said company as they shall think proper and necessary respecting the management and disposition of the stock, property and estate of said company, the duties' of officers, artificers and agents to be employed, the number and election of directors, and all such matters as appertain to the. concerns of said company.
    Sec. 6. If the said company shall so construct their works, or- suffer them so to get out of repair, that they become a nuisance, the said company may be indicted in the Court of Common Pleas of Muskingum county, and on conviction thereof may be fined in any sum not exceeding one thousand dollars.
    Sec. 7. If any person shall wantonly or maliciously destroy or injure the pipes or any of the fixtures or apparatus belonging to said company, every person so offending may be indicted in the Court of Common Pleas of Muskingum county, and on conviction thereof may be fined in any sum not exceeding two hundred dollars and imprisoned not more than three months.
    Sec. 8. The Mayor and Council of the Town of Zanesville may, at their discretion, subscribe to the capital stock of the said company, in a sum not exceeding five thousand dollars, and to pay said subscription may borrow money at a rate of interest not exceeding seven per centum per annum.
    Sec. 9. A majority of the persons named in the first section may open books of subscription to the capital stock at such time and place as they may deem proper, giving twenty days’ notice thereof in some newspaper published in the town of Zanesville, and whenever one hundred shares shall have been subscribed, a meeting of such stockholders shall be called by them authorized to receive subscriptions by a like notice in a newspaper for ten days, at which meeting shall be elected not less than five nor more than nine directors, to serve until their successors are elected. Subsequent elections shall be held at such time and place as the by-laws may prescribe.
    John G. Breslin,

      Speaker House Reps.

    Brewster Randall,
    March 12,1849. Speaker of the Senate.

    “B ”
    AN ORDINANCE

      Concerning the Zanesville Cas-light Company.

    Sec. 1. Be it 'ordained by the Mayor, Recorder and Common Council of the town of Zanesville, That the Zanesville Gaslight Company may lay pipes in the streets and alleys now existing, or which may hereafter exist, in the town of Zanesville, for the purpose of conducting gas to light the town or any buildings, or habitation therein.
    Sec. 2. The privilege granted by this ordinance to the Zanesville Gas-light Company shall be so exercised as not to interfere with the Water Works as they now exist, or may hereafter be extended, nor with any drains or sewers which may be laid down by the town, nor whilst laying pipes shall they interfere for an unreasonable length of time with the use of the streets and alleys as public highways, of all which the street committee shall be the judge.
    Sec. 3. 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 b}'- them required for public lamps at a price not exceeding two dollars and fifty cents per thousand cubic feet of gas, or fifteen dollars per annum per burner, of the usual size of burners in street lamps, at the option of the town council — the council furnishing the lamp posts and burners, and the company furnishing the pipes to convey the gas to the lamps, and meters for measuring the same. But this section shall not be so construed as to authorize the council to require gas to be conveyed to any part of the town for the use of public lamps where the company do not convey it for the use of private buildings or habitations.

      Done in council this 4th day of June, 1849.
    Geo. B. Reeve, Mayor.

    James Crosby, Recorder.

    June 5, 1849.
    “C”
    AN ORDINACE

      Fixing the Price of Gras.

    Section 1. Re it ordained by the Gity Council of the City of Zanesville, That the price of gas furnished the City of Zanesville and the citizens thereof and all comsumers of gas therein be and is hereby fixed at one dollar and twenty-five cents per M cubic feet; and the price of gas per post to the city of Zanesville is hereby fixed at $12.00 per post per annum, and the Zanesville Gas-light Company is hereby empowered to charge all consumers said sum of one dollar and twenty-five cents per M cubic feet, and to charge the City of Zanesville said sum of $12.00 per post.
    Sec. 2. That this ordinance shall be in force and take effect from and after its passage and legal publication; provided, however, nothing herein contained shall impair the obligation of the contract now existing between the City of Zanesville and said Gas-light Company.
    Passed in council the 28th day of January, A. D. 1884.
    J. T. Irvine,

      President of Council.

    Attest:
    W. M. Shinnick, Jr., City Cleric.

    A temporary injunction, allowed at the commencement of the action, was, on motion of the city, so modified as to require the company to furnish gas to the engine-house, city prison and such other places as the city might designate, on condition that it.should pay the price that had been fixed by the company.
    The city demurred to the petition, the demurrer was overruled, and the injunction as modified was made perpetual. The city appealed to the district court, where upon hearing upon the demurrer the same judgment was entered; and this proceeding is now prosecuted to reverse the judgment of the district court. The error assigned is that the court erred in overruling the demurrer and in rendering judgment against the city.

      Gilbert D. Munson, (with whom were A. J. Andrews, R. H. McFarland, City Solicitor, and W. H. Cunningham, late City Solicitor,) for plaintiff in error:
    1. The petition discloses that the city offered to contract under the ordinance, at its prices, and that the company refused to so contract. The District Court, then, should have held that the company must obey the ordinance, no fraud, no bad faith of council in passing the ordinance or inadequacy of price being alleged. See Sec. 2479, Rev. Stats.; State ex rel. v. Gas Co., 37 Ohio St. 45.
    2. The conduct of the gas company as shown by its petition, precluded its right to the injunction prayed for;
    It had refused to obey the ordinance;
    It demanded a written contract;
    It demanded its own prices;
    It dug in the streets to cut pipes ;
    It destroyed by force the public lights;

      Its charter, set out in the joetition, did not authorize it to do any of these things.

    “ The supplying of illuminating gas is a business of a public nature, to meet a public necessity.” 130 U. S. 396.
    This devolved upon the company the responsibility of keeping the public lamps in good condition, so long as it enjoyed its franchise, thus preventing inconvenience, imminent peril and danger in respect to property and lives of individuals'. See C. J. Shaw’s opinion in 8 Gray, 123.
    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 C. J. Bigelow’s opinion in 12 Allen, 75.
    These authorities support the view that the extreme measures instituted by the company were harsh, illegal, inequitable, and that the injunction should have been refused and the demurrer sustained for this reason.

      “He that hath committed an inequity, shall not have equity. Equity will not aid in the harsh assertion of legal rights.” Bispham’s Equity, Sec. 42.
    11. The judgment is erroneous. The judgment required the city to pay perpetually the company’s prices: $1.40 per 1,000 cubic feet, and $14.50 per public lamp post per year; while the ordinance fixed the price at $1.25 per 1,000 cubic feet and $12.00 per public lamp post per year. The petition does not even in remote terms ask such relief; and to so decide, the court not only granted what was not prayed for, but must have held that the company is not governed by the ordinance. The company claims it is not so governed, because it was created by act of the Legislature under the old Constitution of the State ; and 2d, because its right to charge such prices was already fixed by contract with the town of Zanesville.
    1st. Page 8 of the Record shows that the company planted its case squarely on its right to disregard the ordinance, and refused to be governed by the ordinance prices, because of certain rights obtained under the State Constitution of Ohio of 1802. The petition alleges “ that January 28, 1884, the City of Zanesville fixed the price the city and private consumers should pay for gas by ordinance, and that the city claimed that the company was bound by law to furnish it gas at the prices specified in the ordinance; but that, being created prior to the adoption of the present Constitution of the State, it is not governed by any law passed by' the Legislature since the adoption of the present Constitution; hence, that it was subject to no such legislative supervision and control as provided for in Section 2478, Revised Statutes, by which authority the ordinance was passed.”
    But it is so governed, unless its charter protects it; and its charter does not protect it; there is nothing in the terms of the charter that protects it from legislative control exercised by the City Council. See the act of incorporation in the opinion of the court. State ex rel. v. Gas Co., 34 Ohio St. 572.
    2d. But, it is argued, that as to price the company might charge, that matter is already forever fixed by contract made in. 1849 with Zanesville, and cannot be affected by the ordinance of 1884. The contract is claimed by virtue of an ordinance passed by the town of Zanesville, June 4th, 1849.
    Had the company in 1849 a contract with Zanesville that protects it in the right to charge Zanesville in 1884 such price for gas as it pleased, regardless of the ordinance of 1884.
    To ascertain what contract the company had, and its authority as to lighting, see the act creating the company [above]; the act creating Zanesville, and the ordinance of 1849 in question. The act creating Zanesville is in Vol. 12 Ohio Laws, on pages 71 and 72; we quote so much as is pertinent here. Section 2 provides “That the mayor, recorder and trustees are constituted ” the council of ZanesA ville; and Section 7 provides that the “ council shall have full power to make and publish such laws and ordinances in writing, or in one or more public papers printed in the borough, and the same from time to time to alter or repeal, as to them shall seem necessary and proper for the interest, comfort, safety and convenience of the said borough of Zanesville and the inhabitants thereof; Provided always, that no laws or ordinances shall ever be made inconsistent with the laws of the United States or of this State.”
    The ordinance of 1849 is shown in full in the opinion of the court.
    We call attention, that there is nothing in the charter of the company about a price for gas.
    That the only thing as to price in the ordinance of 1849 is that a certain named price shall not he exceeded; not a word that it might not he lessened.

    And we submit: that the council of the town of Zanesville did not attempt in 1849, by the ordinance of June 4th, 1849, to establish a perpetual right in the company to charge what it pleased for gas, provided only it did not exceed the limit of $15.00 per post, and $2.50 per M cubic feet of gas; that it had no authority to so contract. The council could not thus limit for all time — perpetually—its control over the gas company.

      When the company accepted its contract with the town of Zanesville, it accepted such contract as council had power to grant; and there is no presumption of an intention on the part of the council to grant more than it had clear and undoubted authority to grant.
    There was no intention to grant for a greater length of time than the life of the council.
    The council, elected for two years only, intended only, •that the company might charge to the maximum rates named for that length of time.
    If the council could contract for a longer term of years than that, it could contract for one hundred or a thousand years, or indefinitely, as is now claimed by the company.
    But Zanesville could not pass an ordinance that it could not “from time to time alter or repeal.” Vol. 12, O. L., p. 71 & 72, sec. 7.
    “ The supplying of illuminating gas is a business of a public nature, to meet a public necessity.” Gibbs v. The Consolidated Gas Company of Baltimore City, 130 U. S. 396.
    It is the grant of a franchise in consideration of the performance of. a public service. New Orleans Gas Light Co. v. La. Light & Heat Co., 115 U. S. 650. Louisville Gas Co. v. Citizens Gas-Light Co., 115 U. S. 683.
    The rights of the public are never presumed to be surrendered to a corporation unless the intention to surrender clearly appears in the law. Perrine v. Ches, and Del. Canal Co., 9 How. 172. Munn v. Illinois, 94 U. S. 113. Cooley on Const. Lim., 233, 234. State ex rel. v. Columbus Gas L. &c., Co., 34 O. S. 572.
    The “rule should be adhered to with unyielding tenacity.” Birchard, J., in Moorehead et al. v. R. R. Co., 17 O. 351. Collins v. Hatch, 18 O. 523. Bloom v. Xenia, 32 O. S. 565. Minium v. Lorne, 23 Howard (U. S.) 435.
    It has not yet been shown that the power to contract for all time for gas at $15.00 per post and $2.50 per 1,000 cubic feet is essential to carry into effect the general powers as to lighting the town, and hence the implication to that effect does not arise. Ravenna v. Penna. Co., 45 O. S. 118.

      Moses M. Q-ranger (with whom were A. ffl. Train, F. FT. Southard and B. B. Stanbery), for the defendant in error :
    Counsel for the city urge that the Gas Company is legally bound to sell gas to the city and its residents at the prices fixed by the ordinance of 1884, and therefore the District Court should have sustained the demurrer to the petition. The company claims that said ordinance is not valid as against it. (a) Because its charter was granted under the constitution of 1802, and the act creating said charter, the-ordinance of the town of Zanesville passed in 1849, and the acceptance thereof by the company, made a contract, “for the life of the company;” clothing it with full right to charge not exceeding $2.50 per thousand cubic feet of gas, or $15 per annum, per burner, of the usual size of burners for street lamps.
    (3) Because the ordinance is fatally uncertain: -in that it prescribes $12 per post per annum, without any words indicating the size of the burner.
    I. Under the constitution in force in 1849, the public could not regulate the price of the gas of such a corporation as the Gas Company, unless such right was stipulated for in the charter.
    It is impossible for" a state to hold and use any power over the franchises, business or property, of an incorporated company, that does not fall within some one of the following classes: to wit,
    (1) The powers of the public over the business and property of natural persons within the state;
    (2) The special powers as to corporations granted to the state by its Constitution;
    (3) The special powers, on behalf of the state, stipulated for in the statute of incorporation.
    Since 1851 the Constitution of Ohio has made it unnecessary for the state to stipulate for any of the 3d class powers: the Constitution confers upon the state, as a power of the 2d class, the right to repeal, alter or modify every charter granted since 1851. The 2d class has always included the right to prevent the exercise by the corporation of any power not granted to it, and to punish any misuse of any of its charter powers.
    Before 1851 the state of Ohio held powers under all three classes. But class number 2 included only the power to grant charters, to prevent the use of ungranted powers, and to punish misuse of any granted power.
    Before 1851 the state retained, as against its corporations, all the powers of the first class except such as it had dearly surrendered by the terms of a charter granted by it.
    Before 1851 it possessed, as against one of its corporations, only the following powers:

      (a) to prevent exercise of ungranted power;
    (5) to punish misuse of granted power;

      (c) all the powers of class one (1) except such as had been clearly surrendered by charter;

      (d~) such special powers as by the terms of the charter had been stipulated for on behalf of the state.
    The defendant’s charter expressly granted “full power to sell” and “power to make such rules as to the disposition of its property as its stockholders think proper.” Therefore the act of the company in fixing its price for the sale of its gas, is neither the exercise of an ungranted power, nor a misuse of a granted power. Hence the state has no cause to use against it the powers “a” or “6.” ■ The charter contains no stipulation that the public may fix a new maximum price for gas. So the public has no cause, or right, to use against the defendant any “ d ” power.
    Therefore, unless the public holds against the defendant, as one of the powers “c,” a right to name a maximum price, it has no such right. But all powers “ <?” belong to class one (1), that is “Such powers as the state holds over the business and property of natural persons within its territory:” and it is plain that unless the state has the right, as against a natural person, who manufactures and sells gas and delivers it to his customers in the same manner as the defendant does, to name a maximum price for his gas, it has no such right as against the defendant.

      If such right exists, it does so, either because the defendant manufactures and sells gas; or because it uses streets and alleys by pipes, instead of by wheeled vehicles, in carrying its wares to its customers.
    The defendant is not a common carrier. It carries no gas except its own. Its only purpose in carrying its gas is to deliver to each of its consumers, so much of its manufactured article as he wishes to buy and use.
    A special use of a street for the sole purpose of transporting the defendant's own property, will not clothe the public with any right to name a maximum price for the sale, or use, of that property. The right to lay one’s pipes for one’s own use, in another’s land is the proper subject matter of a contract. That other owner, as part of the contract maleing the grant, may impose such terms and conditions as he pleases. After he has made the grant he has parted with the right, and cannot impose any new condition. After the grantee has accepted the grant and complied with its terms, the thing, or right, granted, is part and parcel of his private property. To use the streets in order to deliver one’s property to customers cannot give such power. Every vendor has the right to use streets and alleys for that purpose.
    Gas is only one of a number of materials suitable for making light at night. Its vendor occupies the same position as the vendor of candles, gasoline, oil, and other substances suitable for use as lights; or as the dealers in food, fuel, clothing, and building materials. The only difference between a dealer in gas and such other dealers is caused by the nature of the article manufactured. The gas dealer cannot compete with the others until he acquires the right to transport his ware along the public ways by pipes instead of by wheels. That misfortune subjects him to such terms as the controller of those ways imposes as conditions of the grant, and to those only. Every person needs light at night; and ¡by day food, fuel, clothing and building materials. So does every municipality and state. The fact that the dealer holds himself ready to supply a common need of humanity, and of the public, does not clothe him with any public character. He is simply a manufacturer and vendor of an article that will, if bought and used, aid in supplying such needs. He who makes and sells gas holds no more public character,- than one who makes and sells gasoline, candles, oil, bread, shoes ; or prepares and sells fuel'.
    In the case of Munn v. Illinois, 94 U. S. 119, 127, Chief Justice Waite reviews the cases that have defined under what state of facts the public may limit the price at which a private owner may sell the ownership, or use, of his property. And our own Supreme Court, in The State v. Columbus Gas Company, 34 O. S. 581, has furnished a statement of the doctrine which is binding upon this court.
    The controlling principle is this: Whenever the private owner has accepted the grant of a monopoly, so that the public is compelled to use his property, or where he has voluntarily “ clothed his property with a certain kind of public character,” the state has a right to designate the maximum charge that he may make and collect for that use. Under this principle comes a class of cases where the private owner has “ clothed his property with a public interest; ” or “ his business is affected with a public interest; ” or his property is “ devoted to a public use.” Chief Justice Waite comments fully and ably upon this class. • The long line of authorities examined by him, tells us what these words mean. The carrier offers his car; his wagon; his hack; to transport for hire the bodies, or property, of others; the ferry-man offers his boat for the like purpose ; the Chicago warehouse-men offer their wharves, warehouses and elevating apparatus for the landing, moving and caring for the property of others for hire; telegraph and telephone companies offer their wires to carry the messages of others for hire. But the. manufacturer who uses his vehicles for the sole purpose of carrying his own goods to market; or transporting his own employees in his business ; or his wharf and warehouse and elevator for landing, moving and storing his own grain; or his boat for carrying his own wares, or workmen, across a Stream, does not give a public character to his property, or business, although every article manufactured by him is for sale to, and is needed by the public and by every individual.
    Note the difference: It is one thing to offer the use of one’s private property for hire to the public and to the individual members of that public; it is quite a different thing to offer to sell one’s property to that public or to its individuals. In the former case the private owner offers to engage in a kind of public employment, which, under long established precedents, the public has a right to regulate in certain particulars. In the latter case he does only that which every dealer does; he indicates his willingness to sell —to part with the control of his property to any purchaser who will pay his price. He makes no offer to surrender, or waive any right. Bis offer is in itself an assertion of absolute ownership and control.

    But let us return to the “public right.” This public right to fix a maximum price is based solely upon this principle of “public necessity.” It may be exercised as fully against an individual, or a partnership, as against a corporation. It is true that the public, when creating a corporation, may stipulate for a right to alter, amend, modify, or repeal, the charter; and thereby gain greater power over the corporation than it could hold over natural persons, or unincorporated companies. This was done by the Ohio Legislature when chartering the Cincinnati Gas Company; and by the people of Ohio when framing the constitution of 1851. But the charter of the defendant contained no such stipulation, and it was in full force before 1851. Therefore, as to it, the public has no power other than such as it inay exercise against any natural person or unincorporated firm, engaged in the manufacture and sale of gas. Inasmuch as gas cannot be transported on wheels through streets and alleys, the nature of the manufactured article compels the dealer in gas to ask leave to use streets and alleys by pipes, instead of by wheels. The public, when granting such leave, may stipulate the terms. When it has named the terms, and the gas dealer has accepted and complied with them, his right to so use streets and alleys belongs to him as any other part of his property. The public made no grant to the defendant of any portion of the right of eminent domain.” Thus a company could not “ condemn ” any property for its use. It could acquire no property except by the free consent of its owner. It so acquired the right to use streets and alleys by pipes by express contract, with the municipality that owned and controlled these ways; and it owns that right pursuant to that contract.
    Some cases in Wisconsin, Michigan and California, cited for the city, express the opinion, that, because such companies by public grant, use the streets by their pipes they should be so subject to regulation as to price. After all, the grant does no more than make possible, and legal, a special mode of transporting a manufactured article, for sale and delivery, along public ways; and that mode one that inconveniences no one. Instead of being a grant which prefers the grantee to other users of public ways, it is in fact one which merely makes it possible for it to do what others do without grant, to wit: to use those ways for canying goods to market; and that, too, without interfering at all with any other vendor.
    We respectfully submit that the learned judges who have expressed these opinions cited for the city, have not well considered the actual nature of the franchises of a nonexclusive gas company. On the other hand, in The Commonwealth v. The Lowell Gas Company, 12 Allen 77, the highest court in Massachusetts, in 1866, unanimously held “We fail to see that ‘this company’ can properly be regarded as a quasi public corporation.....established for the convenience of the public. No public duty is imposed upon them nor are they charged with any public trust. They are authorized to make and distribute gas for their own profit and gain only. They are not bound to sell and dispose of it to any one, either for public or private use or consumption. It is entirely at their own option whether they will exercise their corporate rights and privileges at all; and if they undertake to manufacture and dispose of gas the extent to. which they shall carry on the business is left to their own election. Nor is any power conferred upon them to take private property not previously appropriated to a public use for the purpose of exercising and enjoying their franchise. The only right or privilege given to them is to dig up public streets and ways for the purpose of laying their mains or pipes. The right which defendants have is only to use land the whole beneficial use of which has been previously taken from the owner and appropriated for a public use, in such a manner that no nuisance shall be committed, no disturbance be created to the easement of the public, and no injury done to abutting owners of private property.” The Massachusetts court thus held with the cases in 6 and 11 Wisconsin before it cited by counsel. The Lowell company was chartered in the same year as the Zanesville company and the charters in matters material to this question are alike.
    Therefore, the Supreme Courts of the nation, and of our state, have sought, as did Judge White, in 34 O. S. 581, for a state of facts showing monopoly, actual or virtual, and the assumption of a public character before holding that the public may exercise such a right.
    If the mere fact that the defendant, in 34 O. S., manufactured and sold gas in Columbus was sufficient to clothe the public with such supervisory right, Judge White would not have hesitated to so say; instead of occupying time and space to support the judgment of the court by the other special facts in that case.
    In the Columbus case the following facts existed; no one of which is here:

      (a) The charter granted an exclusive monopoly.
    (5) It is wholly silent as to the terms, or prices upon which the gas was to be sold.
    (c) The charter, by express words, required that all the “by-laws and rules for regulating all matters pertaining to the company” should be “consistent with the laws of the state.” This requirement was not limited to the laws in force at the date of the charter, but extended also to such laws as might be passed in the future. As said by Judge White, (34 O. S. 582,) “The charter does not prescribe
      the terms upon which gas was to be furnished to the public. The whole matter is left to be determined by such rules and regulations, not inconsistent with the laws of the state as the directors may prescribe.”
    In one sense the establishment of a maker and vendor of any article of common necessity “ subserves the public interest.” Few, if any, corporations exist, or can exist, which do not in this way “ subserve the public interest.” Of course Judge WHITE was not thinking of any such mode of “ sub-serving the public interest.” The Columbus public wished for a public agent, subject to public regulation, to furnish them gas. To gain the power to so control the gas company, the public offered the exclusive right and the company accepted it. Of this he spoke.
    The fact that the twenty years exclusive privilege had expired before that action was begun was immaterial. In order to decide the question,- “Was that'corporation created to subserve a public purpose ? ” the facts preceding or contemporaneous with the passage of the act of incorporation, and the act itself, were alone to be considered. The fact that for twenty years the people of Columbus were by that act required to buy gas of that company, or do without gas, established for all time that that company was incorporated for a public purpose; and therefore made it subject to public regulation. Judge White evidently considered the expiration of the twenty years as immaterial. Please note his words on last half of page 581; and how his two “ there-fores ” are placed. He does not utter a word in support of the Michigan doctrine. He does cite the U. S. cases with approval.
    The Zanesville charter granted no exclusive privileges. Any number of gas companies, as partnerships, or corporations, could at any time be organized, obtain license to lay pipes in the streets and alleys, and furnish gas. Any individual who chose to go into that business could at any time have done so. Gas is not the only light for cities, or houses, Candles; oil; gasoline; electrical lights, etc., etc., are fully used as well. The majority of the people of Zanesville do not use gas at all. Zanesville was fifty (50) years old before it used any gas.
    Although Columbus has a gas 'company, adjudged by the Supreme Court of our state subject to legislative control, that city is lighted by gasoline, and so has been for several years. At the time this ordinance was passed (in January, 1884), gasoline men, and electric light men, were anxious to be permitted to contract to light Zanesville.
    Thus, there existed in favor of the defendant no express monopoly, and no actual or virtual monopoly. The petition does not state that the defendant holds any actual, or virtual, monopoly. It is simply a manufacturing corporation, whose power to sell (as a corporation), was and is limited to the territory of Zanesville. The substance manufactured by it was suitable for a light. The vendors of oil, gasoline, candles, could use streets and alleys in order to deliver to their customers, or to light city lamps. Their wares are transportable above ground. The streets and alleys are for publie use. Gas cannot conveniently be transported on wheels. But it can be carried along streets and alleys without interfering with public rights. Some digging is necessary. Therefore the permission of the public to so dig, etc., was requisite. When that permit had been granted; the pipes laid so as not to interfere with any public rights of any hind; the surface of the street perfectly restored without expense to the public, what was the gas' company ? No monopolist. No public servant, except so far as its special contract of-1849 stipulated.
    Who is bound to submit to it, and buy its gas at its own price ? Other lights are available, and more people of the city use them than those who burn gas. Other and populous cities will not let their gas companies light them.
    Let me repeat: Enough appears in Munn v. Illinois, 94 U. S. 113, and in the State v. Columbus Gas Company, 34 O. S. 581, to establish the following principles:
    The state can name a maximum price for the sale, or use, of private property where
    3. The private owner is the express grantee of a monopoly; or,

      2. He has, in one of the modes referred to in Munn v. Illinois, “ clothed his property with a public interest,” and the public must of necessity buy, or use, the private property in question; and the owners thereof, by combination, or otherwise, can create a monopoly in themselves.
    The fact that it will be more convenient for the public to use a particular kind of private property, cannot confer upon the public a right to name a maximum price for its sale.
    This public right of “ regulation of prices ” was not in question in the Memphis Gas Company’s case, 109 U. S. 899.' That case related to the “power of taxation.” The power to tax may be exercised by the state upon all persons and upon all property, within the state, subject only to limits imposed by the constitution, or express charter contract. The power to tax is a general one. The power to regulate prices is special. The former applies to all within the state, unless limited by constitution or charter contract. The latter applies only to those who, by their voluntary action, have made themselves subject to it.
    II. But, suppose I am wrong in'the position thus far discussed. Munn v. Illinois, 94 U. S. 113, 127; R. R. Co. v. Iowa, 94 U. S. 155, 162; R. R. Co. v. Maine, 96 U. S. 499; Ruggles v. Illinois, 108 U. S. 533, 537; Memphis Gas Co., v. Shelby County, 109 U. S. 399; The State v. Gas Co., 34 O. S. 581; and many other cases, recognize as the settled doctrine, that the public, when creating a corporation, even for a public purpose, may surrender, during the life of such corporation, the right to name or alter the maximum price of its wares.
    See also Perrine v. Canal Co., 9 How. (U. S.) 172, and Judge White’s language, on page 582, of 34 O. S., which I have already quoted. “ The intent to surrender must clearly appear in the law.” Bearing this rule, and Judge White’s language, in mind, let us read the statute and ordinance of 1849 together. Remember also Waite, C. J., and Hablan, J., as to R. R. Co. v. Iowa, 94 U. S. 155, 162, and Ruggles v. Illinois, 108 U. S. 533, 537.
    I quote from the charter :
    From Sec. 1. “ With full power to acquire, hold, occupy and enjoy all such real and personal estate as may be necessary and proper for the construction, extension and usefulness of the works of said company.”
    Sec. 2. “ The corporation hereby created shall have full power and authority to manufacture and sell gas to be used for the purpose of lighting the town of Zanesville and the streets thereof, and any buildings, manufactories, public places, or houses therein contained, and to erect necessary works and apparatus, and with the consent of the town council of said town, to lay pipes for the purpose of conducting the gas in any of the streets or alleys thereof.”
    Sec. 5. “ The stockholders shall have power to make such by-laws and rules for regulating the concerns of said company as they shall think proper or necessary respecting the management and disposition of the stock, property and estate of said company, the duties of officers, artificers and agents to be employed, the number and election of directors, and all such matters as appertain to the concerns of said company.”
    Here are no such words as “ subject, nevertheless, to such rules as the legislature may from time to time enact,” commented on by Waite, C. J., in R. R. Co. v. Iowa, 94 U. S. 161; Harlan, J., in Ruggles v. Illinois, 108 U. S. 537, and White, J., in 34 O. S. 582. And here is an express reference to the town council of full power to consent as to that use of its streets and alleys which would be essential to the life of the company. The charter made no grant to the defendant of any part of the “ right of eminent domain,” such as is given to railroad companies, etc.; it only granted the right to lay and use pipes in streets and alleys belonging to the town of Zanesville, provided the company could obtain the consent of the town. Under such a provision, the right of the owner of the property to be subjected to the proposed easement, to name the terms on which he will grant his consent, is clearly recognized. Under that reference the council had full power to designate the terms upon 'which it would grant that consent, keeping within the limits of the legislative act. The council took up the matter of naming a .maximum price for the sale of the gas and placed in its ordinance the words:
    “ The Zanesville Gas-light Company shall, DURING SUCH time AS they enjoy the PRIVILEGE GRANTED by this ordinance, supply.....gas.....' at a price not to exceed two dollars and fifty cents per thousand cubic feet of gas, or fifteen dollars per annum per burner of the usual size of burners in street lamps at the option of the town council, the town council furnishing the lamp posts and burners and the company furnishing the pipes to convey the gas to the lamps and meters for measuring the same. But this section shall not be so construed as to authorize the council to require gas to be conveyed to any part of the town for the use of public lamps where the company do not convey it for private buildings or habitations.”
    The first section of the ordinance provided “ that the Zanesville Gas-light Company may lay pipes in the streets and alleys now existing, or which may hereafter exist, in the town of Zanesville for the purpose of conducting gas to light the town or any building or habitation therein.”
    The first section of the act of incorporation created the gas company “ a body politic and corporate with perpetual succession.” '

    The second sectiqn of said act, hereinbefore quoted in full, granted “ full power — with the consent of the town council of said town — to lay pipes, etc.,” to this perpetual corporation, without any words limiting the grant to any period of time.
    The ordinance also made no limit as to time. Neither reserved to state, or town, any right to repeal, alter, or modify, either act or ordinance. By express contract all the corporate powers given by act and ordinance were granted to the corporation without limit as to time, and therefore, for its own life, subject only to the stipulation that the company should so lay pipes as to not interfere with city pipes and drains, etc., and never charge more than the maximum limit of the price of gas stated in the ordinance of 1849.
    So soon as the company accepted the terms of said ordinance (which it did immediately), the act and the ordinance together became its charter. In consideration of the contract so made, by act and ordinance together, the stockholders advanced their money to be used in the venture. To now change the terms of that contract would violate both national and state constitutional provisions.
    If, instead of a reference to the council, the act had granted the right to lay pipes upon the same terms as those set out in the ordinance, those terms would clearly have constituted a surrender by the public of all right to ever name a new maximum price.

    The fact that those terms are in the ordinance, and not in the act is immaterial. The act makes the grant contingent upon the consent of the council. The council received its power from the act. So soon as it had stated its consent, and the terms thereof, the legislative grant as to streets and alleys took effect. Ex necessitate, it took effect upon the precise terms of the ordinance, and not otherwise.

    But this is not all. The act of 1849 made the defendant’s capital $50,000; each share $25; total number of shares 2,000. The same act authorized Zanesville to subscribe for “ not exceeding five thousand dollars ” of said stock; that is, 200 shares; just one tenth. The same act, besides granting the company “full power to sell,” expressly granted to “ the stockholders ‘ power to make ’ such by-laws and rules for regulating the concerns of the company and respecting ‘the disposition .....of the property.....of said conqpany as they shall think proper and necessary.” This grant of power is plainly to “ the stockholders.” A majority of the owners of stock therefore was expressly clothed with this power. As Zanesville was expressly limited to 200 votes out of 2,000, the act excluded Zanesville from a controlling voice. The majority of stockholders could make rules voted against by Zanesville. Any subsequent legislation, attempting to vest in Zanesville alone a controlling power touching the disposition of any of the company’s property, is manifestly inconsistent, with the above quoted grant of that controlling power to the stockholders as a body. The act said bo all persons invited to subscribe for stock: “ The holders of a majority of 2,000 shares of stock shall control the entire business of the proposed corporation. Zanesville shall never hold more than 200 shares. Zanesville may say on what terms the company shall own, in perpetuity, the right to lay pipes in streets and alleys, and may have, at corporate meetings, 200 votes out of 2,000. Subject to these provisions the stockholders shall ha ye full control.”

      Qan there be any doubt that the public surrendered to the corporation all right to fix any terms for the exercise of its powers over its property except those stated in the act and in the ordinance of 1849 ?
    The defendant in error is not here claiming any “ special privilege.” It claims only that right, as to its own property, which belongs, to every owner in Ohio who has not surrendered it. While it asks no preference over other property owners, or manufacturers, it claims full right to stand upon an equality with them.
   Minshall, C. J.

If the ordinance of the city adopted January 24,1884, fixing the price at which the company should furnish gas to the city, as well as to its private consumers, is a valid one, then it is clear that the company was not entitled to the relief prayed for, and its petition should have been dismissed. The claim, that its right to charge such rates as it deems proper, cannot be questioned, except by a proceeding in quo warranto, is not tenable. It is open, at all times, to the person against whom a corporation may claim the right to exercise a power, to call the power in question, and to require the company to show the existence of the power, by deriving it either fiom the plain terms of its charter or the statute under which it is organized. Such a determination is an adjudication upon the question as between the parties to the suit, but does not operate as a judgment of ouster. It may still claim and exercise the right as to other persons, as if such judgment had never been rendered. Not so as to a judgment of ouster in quo warranto. In such case, the proceeding being at the suit of the state, the judgment is available to all persons as an adjudication upon the question. It would be somewhat remarkable, if, where a corporation resorts to a court of equity for relief by injunction, its right to such relief could not be questioned; yet such would be the case here, if the right of the company to fix its own rates for furnishing gas could not be questioned; and the claim that it has the right to refuse to furnish gas and to prevent the city from using it, until the city enters into a contract with it, is only another form of asserting the claim; for no contract can be made until it agrees to the price.

The principle is now well established, that “where the owner of property devotes it to a use in which the public have an iuterest, he in effect grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public, for the common good, as long as he maintains the use.” This was the point of the decision in Munn v. Illinois, 94 U. S. 113; and was applied to the case of natural persons engaged in the business of warehousing and handling grain at the city of Chicago, who had been indicted and found guilty of violating an act of the legislature of the state of Illinois, regulating public warehouses and fixing the maximum charges for storage and handling grain in warehouses of the class to which that of the defendants, Munn & Scott, belonged. The principle of this decision was adopted and applied by this court in State ex rel. v. Gas Co., 34 Ohio St. 572, 582, where White, J., says, it “applies with greater force to corporations when they are invested with franchises to be exercised to subserve the public interest. Deriving their powers by grant directly from the public, they are clearly subject to public control, in respect to the terms upon which their franchises are to be exercised, unless they are protected by their charters from such interference.”

We will next inquire whether such protection can be claimed in this case. The company was incorporated by an act of the legislature, March 12, 1849, with the power “ to manufacture and sell gas to be used for the purpose of lighting the town of Zanesville and the streets thereof, and any buildings, manufactories, etc., therein contained.” This was before the adoption of our present constitution, and the charter contains no reservation of the right to alter or amend it, and is silent as to the rates at which it may be required to furnish gas to the city or private consumers. Such silence cannot, however, be construed into a grant of the franchise to fix its own rates. A franchise must be created by express terms and cannot be inferred from the mere silence of the charter. So that, whilst, in this case, the company may claim to possess the rights of a natural person, it cannot claim to be clothed with any greater rights than such person would have under the same circumstances; and, having devoted its property to a public use, and thereby granted the public an interest therein, it must, within the principle in the Munn case, submit to public control, -so long as it continues to enjoy the privileges granted by its charter.

Nor can it found any right to fix its own rates upon the ordinance by which it was granted the right to use the streets of the town for the purpose of conducting gas to its consumers by laying pipes therein. The language is, the “ Company shall during such time as they enjoy the privilege granted by this ordinance, supply the town council with such quantities of gas as may by them be required for public lamps at a price not exceeding $2.50 per thousand cubic feet of gas, or fifteen dollars per annum per burner.....at the option of the town council.” The town had then no legislative authority, as the city has now under § 2478, Rev. Stats., to regulate the price of gas. It had, however, the right, in granting the company the use of its streets, to fix a maximum at which gas should be furnished it during the continuance of the privilege ; and this it did by the above provision. It did not tie up the hands of the legislature to confer such power on the town council when, in its opinion, the exercise of the power became necessary for the public good. Nor did it place the company in a more favorable position than if the provision had been entirely omitted. In such case it could have fixed its own rates as it saw fit, until the legislature intervened and conferred the power on the council to regulate the price of gas. The fact that the company may have possessed such right before the legislature intervened, does not affect the question. “ It matters not in this case,” said Chief Justice Waite in Munn v. Illinois, “ that these plaintiffs in error had built their warehouses and established their business before the regulations complained of were adopted. What they did was from the beginning subject to the power of the body politic to require them to conform to such regulations as might be established by the proper authorities for the common good. They entered upon their business and provided themselves with the means to carry it on subject to this condition. If they did not wish to submit themselves to such interference, they should not have clothed the public with an interest in their concerns. The same principle applies to them that does to the proprietor of a hackney-carriage, and as to him it has never been supposed that he was exempt from regulating statutes or ordinances because he had purchased his horses and carriages, and established his business before the statutes or ordinances were adopted.” 94 U. S. 133.

The application of these observations to the gas company in the case before us, are very apparent. The plaintiffs in error in that case were natural persons possessed of the common law right to fix their own charges for handling grain, until the legislature of Illinois passed the act regulating the same. The ground of the decision sustaining the validity of the act is, that they had devoted their property to a public use and enjoyed a virtual monopoly of the business at that point. The principle of the decision applies with much greater force to an incorporated company, enjoying a similar monopoly. And because, prior to any legislation on the subject, it may have possessed the common law right of fixing its own prices, does not place it beyond the reach of any legislative control on the subject, whenever, in the interest of the public good, it becomes necessary that such control should be had. We may, in this connection, be pardoned in quoting further from the able opinion of the late Chief Justice of the United States in the Munn case: “ A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property that have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitation. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. To limit the rate of charge for services rendered in a public employment, or for the use of-property in which the public have an interest, is only changing a regulation which existed before. It establishes no new principle in the law, but only gives a new effect to an old one.”

It is also argued that a gas company does not come within the reason of the principle upon which these cases have been decided: That it does not devote the use of its property to the public; that it simply manufactures gas at its works, and then sells it to the consumers, as does the manufacturer of any other article; and that the public have no use of its property as in the case of warehousemen. Whatever there is of this distinction, it is not sufficient to constitute a difference; and does not satisfy the whole reason of the principle upon which the government interferes to regulate prices. It is true the public has not the use of the property of a gas -company as it has of a ferry, nor, probably, as it has of a warehouse, yet a gas compan}'- controls and supplies a public want in a position that gives it, or may do so, a virtual monopoly of the supply; and so far as the public is concerned, it is immaterial whether the manner in which the Avant is supplied, is termed a letting or a sale of property or services. It is the virtual monopoly of the supply of the want that gives to the public the right to regulate the price demanded for it. Alnutt v. Inglis, 12 East 527.

As, therefore, the city council had the right to adopt the ordinance of March 12, 1884, fixing the price of gas, and as it was the duty of the company to supply the city at these rates, so long as it continued to manufacture gas, and avail itself-of the franchises with which it had been clothed by its charter and the ordinance of the city, it had no right to an injunction restraining the city from consuming the gas at its posts and lamps as it had been in the habit of doing for many years, and the court erred in granting an injunction.

Nor does the fact that the temporary injunction was subsequently modified by the court on motion of the city, and, that the injunction so modified, was subsequently made perpetual, affect the right of the city to have it reversed. The city had been wrongfully restrained from all use of the company’s gas, and was at night shrouded in darkness. The best it could do under the circumstances, without committing a contempt, was to obtain a modification of the order, whereby it was permitted to use the gas by paying the rate fixed by the company. We are unable to see how this can be said to estop the city from asking a reversal of the judgment. It simply established a modus vivendi between the parties during the litigation, and cannot be held to have affected the legal or equitable rights of the parties upon the merits of the case, in any way whatever.

The right of the company to superintend and control its connections with the pipes of the city and the burners on tbe posts of the city, must be admitted, subject to the duty of so exercising this right as not to impair the right of the city to be supplied with gas according to the terms of the ordinance of 1884. No question has been made as to the size of the burners to be employed under the ordinance. To avoid, however, any future trouble in this regard, it is proper to say, that the plain construction of the ordinance requires the use of burners of the size in use at the passage of the ordinance.

The judgment is reversed, injunction dissolved, and the petition of the plaintiff below dismissed.