author: Dickman, J. Spear, J.

text:
    State ex Rel. v. City of Hamilton.

      Municipal Corporations — Gas Companies — Exclusive Franchise.

    A gas company incorporated under the act of May 1, 1852 (1 S. & C. 271), for the purpose of supplying gas for lighting the streets, and public and private buildings of a city, under authority from the city council erected gas works, and laid pipes for long distances, for conducting gas through the streets for public and private consumption. The council regulated, from time to time, the price which such company might charge for gas, and from time to time, made contracts with the company for lighting the streets. At the expiration of the last contract, no new agreement was entered into, and the city declined to take gas any longer from the company. The company complied with all the provisions of the law of the state relating to gas companies, and with all the requirements of the city council in that behalf. Held:

    1. That although there was no refusal or neglect by the company, to comply with the requirement of section 2480 of the Revised Statutes, as to laying pipes and lighting streets, and no neglect by the company to furnish gas to citizens and other consumers, in accordance with the prices fixed by the council, as provided in section 2482 of the Revised Statutes, the city council, under section 2486 of the Revised Statutes, was empowered to erect its own gas works at the expense of the corporation, or to purchase gas works already erected therein, whenever it might be deemed expedient and for the public good.
    2. That the company acquired no vested rights of which it would be deprived, without due process of law, by the city’s erecting its own gas works.
    (Decided January 21, 1890.)
    QUO WARRANTO.
    The case is stated in the opinion.

      David K. Watson, Att’y Gen’l. Follett Kelly, Ramsey, Maxwell $ Ramsey, Thomas Millikin and A. F. Hume, for the plaintiff.
    The issues involved in this case, arise chiefly, if not exclusively, upon the construction of the statutes and the power conferred by the laws of this state upon municipal corporations in relation to gas companies. At the time the Hamilton Gas Co. was organized and went into operation, no power was vested, by the statutes of this state, in municipal corporations to erect gas works except for the purpose of occupying such portions of the streets of the municipality as the gas co. had neglected or refused upon proper notice to occupy, and such streets in addition thereto as the gas co. had not occupied, and also in cases where the gas co. had forfeited its rights under its charter; and in the construction of the statutes as they are now found, it is important and necessary to review the history of legislation on this subject for the purpose of understanding what was intended to be provided for in each of the sections of the statutes relating to gas cos. Endlich on Int. of Stats., secs. 29, 35, 40 and 51; Bishop’s Written Laws, sec. 86; Green v. Commonwealth, 12 Allen, 155, 156; Hirn v. The State, 1 O. St. 15; State ex. rel. v. Commissioners, 20 O. St. 421; Pancost v. Ruffin, 1 O. 381; Lessee of Allen v. Parish, 3 O. 187; State v. Blake, 2 O. St. 147; Dodge v. Gridley, 10 O. 173; Roberts v. Wheeler, Wright 697; State ex rel. v. Auditor, 43 O. St. 315; City of Warren v. Davis, 43 O. St. 447; Ash v. Ash, 9 O. St. 383; Vancamp v. Board of Education, 9 O. St. 407; Conger et al. v. Barkers, adm’r, 11 O. St. 1; Commissioners v. Board of

      Public Works, 39 O. St. 628; Schultz v. Cambridge, 38 O. St. 659; State ex rel. v. Ry. Co., 37 O. St. 157; State v. Jackson, 36 O. St. 281.
    In the light of the well settled rules of construction laid down in the foregoing cases, we ask the court to examine the several sections of the statutes relating to the organization of gas companies and the powers conferred upon municipal corporations to regulate and control such companies. There is running throughout these sections of the statutes a clear negation of the idea that council should run and operate works in opposition to the gas company, or that the gas company should have its property rights destroyed, and its property practically confiscated by the municipality itself running works in opposition, at the expense of the public, the burden being borne by the public, and the expenses being provided for by the tax-duplicate.
    It is claimed that the exercise of this power is discretionary with the city council and that the court will not attempt to control this power. The complete answer to this claim is found in the decision of this court in the case of the State ex rel. v. The Cincinnati G. L. & C. Co., 8 O. St. 301.
    Municipal corporations have only such powers as are specifically conferred upon them by the statutes. Dillon on Mun. Corp., sec. 89, and case cited in note 1; Ravenna v. Penn. Co., 45 O. St. 118.
    If the court should disagree with us as to the construction of the statutes we insist that the construction of sec. 2486, contended for by council for the city of Hamilton, would be, as to the Hamilton Gas Light & Coke Co., a law impairing the obligation of contracts, and unconstitutional. Constitution of United States, art. 1, sec. 10; Constitution of Ohio, art. 2, sec. 28;, Dartmouth College Case, 4 Wheaton, 518; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; The Binghamton Bridge, 3 Wall. 51; Greenwood v. Freight Co., 105 U. S. 13; New Jersey v. Yard, 95 U. S. 104; Water Works Co. v. Rivers, 115 U. S. 674; Gas Co. v. Gas Co., Id. 683: Waterman on Corp., 503; Seibert v. Lewis, 122 U. S. 284; Water Works v. Atlantic City, 39 N. J. Eq. 367; 10 Am. & Eng. Corp, Cases, 59; Gas Light Co. v. Gas Light Co., 25 Conn. 19; State v. Gas Light Co., 2 La. 520; State ex rel. v. Commissioners, 5 O. St. 497: Ireland v. Turnpike Co., 19 O. St. 369; Goodale v. Fennell et al., 27 O. St. 426; G. L. & C. Co. v. G. L. & C. Co., 16 Am. & Eng. Corp. Cases 527; Williams v. Gas Co., 52 Mich. 499; Hesterville R. R. v. Philadelphia, 89 Pa. St. 210.
    This compare has a vested right in its charter and in its property of which it cannot be deprived without due process of law. 14 Amendment Constitution U. S. sec. 1; Con. O., Art. 1, sec. 19; Pumpelly v. Green Bay Co., 13 Wall. 166; N. H. & D. Ry. Co. v. Chapman, 38 Conn. 56; Cooley on Con. Lim. 721; Shields v. Ohio, 95 U. S. 324; Commonwealth v. Essex Co., 13 Gray 253; Waterman on Corp. 70; Louisville v. University, 15 B. Mon. 642; Allen v. McKean, 1 Sumner 276; Mor. on Corp. sec. 1087-1044.
    A tax levied by the council of Hamilton for the purpose of the erection of gas works in said city, is not a tax levied for the public purpose, and is, therefore, illegal and unauthorized. Loan Asso’n v. Topeka, 20 Wall. 655; Mor. on Corp. sec. 1085; Parkersburg v. Brown, 106 U. S. 487; Allen v. Inhabitants, of J., 60 Me. 124; Lowell v. Boston, 111 Mass. 454; Jenkins v. Andover, 103 Mass. 94.

      J. F. Keilan, also for plaintiff.
    The question for investigation and decision is: What is the true legal relation of the state and company toward each other, resulting from the incorporation by the state of this company, and its acceptance and faithful performance of all the duties imposed by the laws of its creation and all other laws passed for its regulation and control ?
    In deciding this question the city cuts no figure whatever. It is a mere cipher. It possesses no power or authority except such as is clearly conferred by the state. It is but the agent of the state by whose authority it lives, acts and has its being; and the only discretion with which it is vested in this gas business was the right to grant or withhold its consent to the use of the streets, alleys and public grounds. Having once exercised this discretion by permitting the company to use its streets for the laying therein of pipes to convey gas, its power is at an end;, and it cannot, after the grant is accepted and acted upon, withdraw this consent or in any manner impair its value. The city consented to the use of its streets, lanes, alleys and public grounds in which the company could lay its gas-pipes; the state vested the company with certain powers and imposed upon it certain duties. All powers to be exercised by the city afterwards are clearly duties from which the city cannot free itself and which it cannot surrender nor barg'ain away. State v. Gas Co., 18 O. St. 262; State v. Gas Co., 37 O. St. 47; Gas Co. v. Avondale, 48 O. St. 257.
    Both the city and the company are agencies created by the state for certain specific public purposes. Neither can abandon or change the duties imposed without incurring certain penalties. The penalties imposed upon the company are set out in sections 2480 and 2482 Revised Statutes, which in this case have never been incurred.
    The controversy then is between the company and the state; for the act of the city is the act of the state. If the city is authorized to build and operate gas works, issue bonds and levy taxes therefor, it got this authority from.the state. If the state could not constitutionally confer this power upon this city; or, if the state has in fact never conferred nor intended to confer, this power, all the acts of the city in furtherance of such object are absolutely void.
    In 1852 the building and operation of gas works and'all business connected therewith were but little understood. There was great risk and uncertainty connected with the business. Add to this that the municipal corporations in Ohio were poor; had no credit; could not pay their ordinary running expenses, and jmar after year kept increasing their debts. The lighting of cities is, and was then, a great public necessity. The state was unable or unwilling to undertake to supply this public want. It therefore appealed to its private citizens to aid by investing their money to supply this public want; making certain propositions to them and conferring upon them certain powers which they were to exercise. When the private citizens accepted the state’s proposition, became incorporated and organized as the law provided, invested their money, entered upon the discharge of their duties, and always faithfully performed those duties, they are entitled to all the rights, franchises and privileges conferred by the act of incorporation, and the state cannot impair, much less destroy, those rights, franchises and privileges, no more than it can legally take any other private property for a public purpose, without due process of law and without making fall compensation therefor. In other words the proposition by the state and acceptance thereof and performance by the private parties according to the terms of the law, which is the proposition of the state, the law being the only way in which it could make a proposition, constitute a contract between the state and the corporations which the state cannot impair, much less abandon and destroy, without violating the Constitution of the United States and of the State of Ohio.
    If any other person but the state made such a proposition and it was accepted and its terms performed, no one would for a moment doubt that such proposition and acceptance constitute a contract.
    The state is but an aggregation of individuals, and any contract they enter into in their united capacity as a state, is binding upon them. All the elements of a valid contract are present here; parties having the legal capacity, a subject matter and consideration.
    If there were no constitutional protection; if there were no decisions of courts affirming this view; if it were a case of first impressions and without precedent, this court would have no hesitation, on equitable grounds, in restraining the state, which, by its agent the city, is violating the compact between itself and this company, and would prevent the destruction of the company’s property resulting from the city’s acts. For, that the property of the company will be ultimately destroyed, if the city construct and operate gas works, is too plain to need proof.

      The company cannot possibly compete with the tax duplicate of the city, "all of which is subject to taxation, including the company’s property, to pay the expenses of operating the city works, no matter whether this operation results in loss or profit. To talk of competition between the city and the company, under the circumstances, is nonsense.
    The charter of incorporation of the Hamilton Gas Light and Coke Company, granted by the state in 1855, is a contract between the state and the corporation; and any impairment by the state of that charter, or the contract resulting therefrom is unconstitutional and void. Fletcher v. Peck, 6 Cranch, 133; Dartmouth College v. Woodward, 4 Wheaton, 518; Green v. Biddle, 8 Wheat. 1; Providence Bank v. Billings, 4 Pet. 514; Planters Bank v. Sharp, 6 How. 301; Trustees v. Indiana, 14 How. 268; Piqua Bank v. Knoop, 16 How. 369; Bridge Proprietors v. Hoboken, 1 Wall. 116; Hawthorn v. Calef, 2 Wall. 10; The Binghamton Bridge, 3 Wall. 51; Miller v. State, 15 Wall. 478; Delaware Railroad Tax Case, 18 Wall. 206; Greenwood v. Freight Co., 105 U. S. 13; New Orleans Gas Co. v. Louisiana Light & Heat Co., 115 U. S. 650; New Orleans Water Works v. Rivers, 115 U. S. 674; Lincoln Bank v. Richardson, 1 Me. 79; Yarmouth v. North Yarmouth, 34 Me. 411; Coffin v. Rich, 45 Me. 507; State v. Noyes, 47 Me. 189, 205; Backus v. Lebanon, 11 N. H. 19; Grammar School v. Burt, 11 Vt. 632; Welsh v. Stetson, 2 Mass. 146; King v. Bank, 15 Mass. 447; Nicholas v. Bertram, 3 Pick. 342; Central Bridge v. Lowell, 15 Gray, 106; Brighton v. Wilkinson, 2 Allen, 27; Washington Bridge Co. v. State, 18 Conn. 53; Lothrop v. Steadman, 42 Conn. 583; People v. Manhattan Co., 9 Wend. 351; Brown v. Hummel, 6 Pa. St. 86; Commonwealth v. Cullen, 13 Pa. St. 133; Iron City Bank v. Pittsburgh, 37 Pa. St. 340: Zabriskie v. Railroad, 18 N. J. Eq. 178; Lehigh Valley R. R. v. McFarlan, 31 N. J. Eq. 706; Bailey v. Railroad Co., 4 Gill & J. 1; Norris v. Trustee, 7 Gill & J. 7; Regents v. Williams, 9 Gill & J. 365; Bank of Dominion v. McVeigh, 20 Gratt. 457; Mills v. Williams, 11 Ired. 558; Bank of State v. Bank of Cape Fear, 13 Ired. 75; Attorney General v.
      Bank of Charlotte, 4 Jones Eq. 287; State v. Hayward, 3 Rich. 380; Young v. Harrison, 6 Ga. 130; State v. Tombigbee Bank, 2 Stew. (Ala.) 30; New Orleans, etc., R. R. v. Harris, 27 Miss. 517; Marysville Turnpike Co. v. Howard, 14 B. Mon. 426; Louisville v. University, 15 B. Mon. 642; Edwards v. Jagars, 19 Ind. 407; Bruce v. Schuyler, 4 Gilm. 221; Bruffett v. Railroad, 25 Ill. 353; Miners Bank v. U. S., 1 Greene, (Iowa,) 553; Gorman v. Railroad, 26 Mo. 441; Michigan State Bank v. Hastings, 1 Dougl. 225; People v. Jackson Plank Road, 9 Mich. 285; Flint Plank Road Co. v. Woodhull, 25 Mich. 99; McRoberts v. Washburn, 10 Min. 23; Stone v. Mississippi, 101 U. S. 814; Sinking Fund Case, 9 Otto (U. S.), 700; Shields v. Ohio, 5 Otto, 325; Jefferson Branch Bank v. Shelley, 1 Black, 346; Mechanics and Traders Bank v. Debolt, 16 How. 369; Neil v. Ohio, 3 How. 720.
    The city now possesses the power of fixing the price for the gas furnished, and it is the duty of the company to furnish its gas at that price, under forfeiture of its charter. It possesses the power of compelling the company to extend its mains and furnish gas to light any street or streets within the city limits under certain penalties. It can fix the standard quality of the gas. It can appoint a gas inspector to inspect the gas, certify to bills of private consumers, make tests of the gas and perform such other duties as may be prescribed by ordinance. No matter how cheap the city could furnish gas, if it were operating works, it can compel the company to furnish it just as cheap or else the company forfeits its charter. The right is reserved to council to enforce an exact compliance with such specifications and under such rules as it may prescribe. And finally it is prohibited from making any agreement that would deprive it of the right to purchase the works and all appurtenances belonging thereto at any time. It follows, therefore, from the foregoing enumeration of the powers vested in council and the duties imposed upon the city, that when it passed an ordinance declaring it necessary for the public good to erect gas works, issue bonds and levy taxes to pay the same, its declaration in that regard was a fraud, not only upon the company which had always supplied the public and private want and was fully competent and willing to do so in the future; but it was also a fraud upon the citizens and tax payers of said city. There being no public want to supply, and taxation being authorized' only for public purposes, the discretion vested in council by section 2486 was abused by it, and its mere declaration that the public good would be subserved, is not sustained by the facts and the law of the case. Discretion to be legally and validly exercised must be honestly and fairly exercised. State v. Gas Co., 18 O. St. 262.
    The reservation of power by the state to alter or repeal the laws creating corporations, does not affect the contractual relations between the parties; and no alteration or repeal which takes away any of the franchises granted, or property actually acquired by operation of the grant, is legal. State ex rel. Gas Co., 34 O. St. 572; Hyatt v. McMahon, 25 Bar. 457; Mor. on Corp., sec. 1095; Shields v. Ohio, 5 Otto (U. S.), 325.
    So long as the city uses gas, and the company complies with all requirements of law, it possesses the right to furnish the gas required; and any attempt to take away this right, or impair it, violates the constitutional protection thrown around it. If the state wants the property of the corporation, if the state’s ownership (by its agent, the city, or otherwise) is necessary for the public good, it must pay for it. If it cannot agree with the corporation on the price, it can exercise the power of eminent domain. A franchise is property; and the franchise may be taken under the power of eminent domain when adequate compensation is provided and the obligation of the contract is not impaired but recognized. West River Bridge v. Dix, 6 How. 507; Richmond etc. R. R. v. Louisa R. R., 13 How. 71; New Orleans Gas Light Co. v. Louisiana Light and Heat Co., 115 U. S. 650; Enfield Toll Bridge Co. v. Railroad, 17 Conn. 40; Backus v. Lebanon, 11 N. H. 19; Piscataqua Bridge v. N. H., 7 N. H. 35; Central Bridge Co. v. Lowell, 4 Gray 474; Boston Water Power Co. v. Railroad, 23 Pick. 360; In re Citizens Pass. R. R., 2 Pittsburgh, 10; In re Towanda Bridge, 91 Pa. St. 216; In re Twenty-Second Street, 102 Pa. St. 108; Benson v. New York, 10 Bar. 223; Shorter v. Smith, 9 Ga. 517; Cooley Constitutional Limitations, 281; 3 Parsons on Contracts, 537; Mor. on Corp., sec. 1086 ; 2 Washburn Real Property (4th ed.), 295.

      E. E. Hull, City Solicitor, James B. Neal and Israel Williams, for the defendant.
    It will be observed that the gas company was organized under the general incorporation laws of Ohio, and no special grant of power was there given, only “ for the purpose of supplying gas for lighting the streets and public and private buildings.” The act also provides, that said company “ shall be subject to all the restrictions hereafter provided; ” the court will notice the phraseology. It is not “ hereinafter ” but “ hereafter; ” the reference being to time, not to the statutes.
    In 1855, as now, the legislature had no authority to grant “ any special privileges or immunities that might not be altered, revoked or repealed.” Constitution Ohio, Art. 1, sec. 2 ; Id. Art. 13, secs. 1 and 2.
    It must be borne in mind in examining the statutes, that charters of incorporation are to be construed strictly against the corporators. Cooley Con. Lim., 488, and notes; Id., 251; G. L. & C. Co. v. Middletown, 59 N. Y. 228; Dillon Mun. Corp., sec. 97; Greene’s. Brice’s Ultra Vires, 285, 63 note.
    Corporations are not relieved from the operation of general laws nor are they exempt from future legislation. Mor. on Corp., secs. 1061-62. Nor can a contract on the part of the state not to exercise its power of legislation ever be implied. Mor. on Corp., 1075 a; Stone v. Farmers Loan & Trust Co., 106 U. S. 307.
    The revised law relating to municipal corporations, shows a manifest legislative intent that plainly requires a change of intended meaning, application and construction. Where the language is plain and explicit, it cannot be controlled by the rule in pari materia. Endlich, sec. 53; State ex rel. v. Auditor, 48 O. St. 315; City of Warren v. Davis, 43 O. St. 447; Ash v. Ash, 9 O. St. 387; G. L. & C. Co. v. Avondale, 43 O. St. 267.
    If any ambiguity exists in the revision, the court will not refer to, or consider the language of the original statutes in determining the meaning of the revised statutes. 138 Mass. 99; 11 Western Rep. 259; Endlich, sec. 368.
    In considering section 2486, the court will observe that the alternative is given, either to erect gas-works or purchase any already erected. If this section controls, then it conclusively settles the proposition that the city may own gas works; that it may obtain them either by construction or by purchase — by construction pr purchase whenever it is deemed best for the public good; this the city has declared by ordinance. The construction contended for by the defendant gives effect to every word, clause and provision of the enactment, while the construction contended for by the relator, renders meaningless the plain language of section 2486. It means what it says. The city may build or buy. G. L. & C. Co. v. City of Hamilton, 37. Fed. Rep. 832. As showing the intent and purpose of the legislature we call the attention of the court to the amendments passed last winter, making perfect and complete the authority for the building of gas works by the municipality. 86 O. L. 108.
    The power to levy a tax for the purpose of erecting, enlarging, or improving gas works and for lighting the corporation is expressly conferred by section 2683, paragraph 18, Revised Statutes. Gas Co. v. Findlay, 2 C. C. Rep. 245. A general power to provide for lighting the streets etc. is granted by section 2492 Revised Statutes.
    Section 3551 Revised Statutes provides, that where a company already exists in a city, another such company shall not go into operation unless authorized by a vote of the citizens and by ordinance. If the second company goes into operation, the cpuncil has full power to contract with it. The city, if it desired to purchase gas works, would certainly not be compelled to purchase both; in fact, we think, would be limited to tbe purchase of one. The operation of the second company, as against the first, would be clearly competition and not confiscation. Now if the city sees fit to purchase one, then it becomes the owner of its own gas works irrespective of any questions arising in regard to the other. If it has the power to authorize a second company, and then to purchase the works of that company, it clearly has the authority to build works of its own.
    In addition to the statutes hereinbefore set out, we call the attention of the court to sections 8835, 3836, 3837 of the Revised Statutes; and we claim that the city is authorized to construct and operate gas works under the provisions of said sections. Hensley v. City, 3 C. C. Rep. 201.
    Corporations are subject to the law-making power of the statq the same as individuals. The contract on the part of the state not to exercise, its power of legislation can never be implied, and the reservation of the right to repeal, alter or amend, negatives any intention to confer irrevocable rights. The franchise is to be regarded as some legal power, not as a right secured by contract with the state. Cooley, Con. Lim., 251; G. L. & C. Co. v. Middletown, 59 N. Y. 58; Dillon’s Mun. Corp., sec. 97; 2 Mor., secs. 1061, 1062, 1063, 1064, 1069, 1072, 1075, 1093, and 1097; Stone v. Loan Co., 116 U. S. 307; Shields v. State, 26 O. St. 86; Shields v. Ohio, 95 U. S. 319; Saginaw Bank v. Saginaw, 28 Fed. Rep. 529; 39 Fed. Rep. 651; Gas Co. v. Avondale, 43 O. St. 257; State v. Gas Co., 37 O. St. 45; Norwich Co. v. Norwich City, 25 Conn. 19; State v. Gas Co., 3 C. C. Rep. 251; R. R. Co. v. Gas Co., 63 N. Y. 326.
    The intent of the state to make a permanent grant must be clearly expressed. There must be a sufficient consideration. The right granted must be clearly granted. Every reasonable doubt as to the meaning of the language must be resolved in favor of the state. Mutual assent is the essence. 11 Pet. 420; 22 Wall. 527; 4 Pet. 514; 2 Black. 510; 24 How. 300; 100 U. S. 548; 97 U. S. 659; 4 Pet. 152-168; 109 U. S. 285.
    The state law may be retrospective and impair vested rights, yet, if it do not impair the obligation of a contract, it is valid and constitutional. It is a general rule that no one has a vested right to be protected against consequential injuries arising from the proper exercise of rights by others. Satterlee v. Matthewson, 2 Pet. 378; Bridge v. Bridge, 11 Pet. 420-529; Baltimore R. R. v. Nesbit, 10 O. 395; Cooley Con. Lim. 475; 11 Pet. 420; 3 Wall. 210; 2 Mor. 1103; 14 Otto (U. S.) 788.
   Dickman, J.

The facts necessary and sufficient for the determination of the material issue in this action, are disclosed by the petition, answer, and demurrer to the answer, and are as follows : The Hamilton Gas-light and Coke Company was organized and duly incorporated in the year 1855, under the general incorporation act of May 1, 1852, for the purpose of supplying gas for the lighting of the streets, and public and private buildings in the city of Hamilton, Ohio. At the time of its organization, by virtue of the provisions of an ordinance of the city of Hamilton passed in the year 1855, there was granted to the company, and it thereafter had, the use of the streets of the city for the purpose of laying gas-pipes and mains, and supplying gas to the city and its inhabitants, for the period of twenty years, to wit, until the year 1875. Since the year 1875, the city has used the gas of the company only in accordance with the terms of various contracts entered into between the city and the company, from time to time, the last of which contracts expired January 1, 1889. And, since the last named date, there has been no contract existing between the parties; the city has declined to use the company’s gas, and has provided other means for lighting its streets. For the purpose of manufacturing gas, the company erected gas works, and laid gas-pipes and mains, to the probable extent of thirty miles, throughout the city, for the furnishing of gas for public and private consumption. It is conceded by the defendant that the company has complied with all the provisions of the law of Ohio relating to gas companies, and with all the ordinances in that behalf of the city of Hamilton, and is entitled to all the rights, privileges and immunities secured to such companies by the laws of the state.

The city of Hamilton is a municipal corporation organized under the laws of the state of Ohio, and had, at the last federal census, a population of 12,122, and a corporate area of about three square miles. On the 4th day of September, 1888, the city, by its council, on the petition of a large number of its inhabitants, duly passed an ordinance providing for the submission to the qualified voters the question of issuing the city’s bonds to the amount of $150,000, for the purpose of gas works to be erected by the city. Legal notice having been given, the question was voted upon by the electors at the general election held on the 6th dajr of November, 1888, and resulted in 2,412 votes being cast for the issue of bonds, and fifty-nine votes against such issue. Upon that decision of the electors, the city council, on the 20th day of November, 1888, adopted a resolution that, it was deemed expedient and for the public good, to erect gas works at the expense of the corporation. .On the 18th day of December, 1888, an ordinance was passed by the council, providing for the issue of bonds, for the purpose of erecting such works by the city, to the extent of $150,000. The entire issue was sold for more than the par value thereof, and the proceeds of the sale were turned over to the city treasurer, for the erection and completion of the proposed works. On the 7th day of May, 1889, trustees of the gas works were appointed by the city council, who duly qualified, organized their board, and proceeded to the erecting of the works in accordance with the decision of the citizens and tax-payers of the city of Hamilton. The board of trustees so appointed purchased land for the erection thereon of the proposed gas works, agreed upon plans and details for the construction of such works, entered into contracts for the furnishing of material and the performance of labor, paid large sums of money upon contracts for material furnished and labor performed, and in the execution of contracts, gas-pipes were extensively laid in the streets of the city. The defendant alleges, that the gas works are being built by the city for the purpose of furnishing the public lighting to the city, and that no action has been taken toward furnishing gas for private consumption; but, the defendant cannot say, what action, if any, the city will in the future take toward furnishing gas for private consumption.

The only material question in this case is, whether upon the facts as above stated, the city of Hamilton has corporate power to erect its own gas works, for the purpose of furnishing the public lighting to the city.

The laws relating to gas companies when organized, and in force at the time the Hamilton Gas-light Company was incorporated, are substantially embraced in the Revised Statutes, between sections 2478 and 2491 inclusive. The material questions to be determined in this case arise under sections 2480, 2482, 2485, and 2486, the last two sections having been passed since the incorporation of the company.

Section 2480 provides that, if gas companies when required by the council to lay pipes and light streets, alleys, public grounds or buildings, refuse or neglect for six months after being notified by the authority of the council, to comply with such requirement, the council may laj' pipes and erect gas works, for lighting such streets, alleys, or public grounds, and all other streets, alleys, and public grounds not already lighted; and such companies shall thereafter be precluded from using or occupying any of the streets, alleys, public grounds or buildings, not already furnished with gas-pipes of such companies.

Section 2482 provides that, a neglect to furnish gas to the citizens, and other consumers of gas, or to the corporation, by any company, in accordance with the prices fixed and established by the council, from time to time, shall forfeit all rights of such company under the charter of which it was established; and the council may proceed to erect, or, by ordinance, empower any person to erect gas works, for the supply of gas to such corporation and its citizens.

Section 2485 makes it unlawful for any council to agree by ordinance, contract, or otherwise, with any person or persons, for the construction or extension of gas works for manufacturing or supplying the corporation or its inhabitants with gas, which shall give or continue to any person or per-: sons making such agreements with the council the exclusive privilege of using the streets, lanes, commons, or alleys, for the purpose of conveying gas to the -corporation, or the citizens thereof; ...... nor is the council permitted to make any such agreement which shall not secure to the council the right to purchase such works, and all the appurtenances belonging thereto, at any time within the existence of such contract or agreement.

Section 2486 enacts that, “.The council of any city or village shall have power, whenever it may be deemed expedient and for the public good, to erect gas works at the expense of the corporation, or to purchase any gas works already erected therein.”

This provision for the erection of gas works by the city, was first embodied in section 423 of the municipal code, passed May 6, 1869, which, while a codification, enlarged the powers of municipalities as to gas works and lighting corporations, and the same enlarged powers are continued under the revised statutes, without material change. Among the general powers granted to cities, they may light streets, allej's, public grounds and buildings, within the corporation, and provide for laying down gas-pipes; they may appropriate, enter upon, and hold real estate within the corporate limits, for gas works, and “ lighting any public uSe ; ” and may levy taxes for the special purpose of erecting, enlarging, and improving gas works, and for lighting the corporation.

It is urged in behalf of the Hamilton Gas-light Company, that the legislature has declared in sections 2480 and 2482, certain conditions under which the council may build gas works, and that in the absence of those conditions, the city has not such power while there are gas works,.in the municipality that have complied with all the provisions of the law, and met all the demands made upon them. Such an expression of the legislature will, it is said, exclude the right of a city to erect gas works under any other circumstances. Those two sections designate what refusal or neglect on the part of gas companies to meet the requirements of the law, would work a forfeiture of their rights under their charter, and authorize the council to lay pipes, and erect gas works, and exclude a gas company already in operation, from occupying any streets not already furnished with gas pipes of such companies; but such authority is very different from the general power conferred upon the council by section 2486, to construct gas works without reference to the manner in which an existing company may use its franchise.

Section 2486, in plain language, gives the power to the council, either to erect gas works, or to purchase such works already erected. The authority granted is not coupled with any condition or contingency, but is to be exercised when the council may deem it expedient and for the public good. The language is free from ambiguity. The discretionary power would hardly seem consistent with the limitation sought to be imposed, that the council can build gas works only where there are no gas works in the municipality; or where gas companies already organized, refuse or neglect to comply with the requirements of the law as to lighting or laying pipes, or neglect to furnish gas to citizens. The interest of the city may demand that a gas company established and doing business, although complying with all statutes and ordinances, should not continue to enjoy exclusive possession of the field of operation. And it may be deemed expedient, and for the public good, to discourage the growth of a monopoly, by the city’s erecting its own gas works, or encouraging the incorporation of a competing company. Certainly, it would not be a doubtful public policy, to place the city on an independent basis, by clothing it with the power of building its own gas works if an emergency should arise, although there might be a company within the municipality, which fully discharged all its corporate duties. Indeed, the provision in section 2485, rendering it unlawful to give or continue to any gas company the exclusive privilege of using the streets, would seem designed not merely to prevent the sole occupation of the streets by one .company as against another, but also to secure to the municipality the use of the streets, should it conclude to avail itself of the right, granted by the following section, of erecting gasworks.

It is conceded that a municipality within which a gas company has been already formed, may, by a vote of its citizens and by ordinance, authorize the operation of another gas company within its borders. Rev. Stats., section 3551. The municipality may also purchase the gas works of the newly organized company. But it is contended that if two such companies exist at the same time, in the same municipality, and occupying the same territory, the municipal authorities though purchasing could not operate the works of one in opposition to the other; that after such purchase, the law will not permit the city to use its own property for the purpose of lighting its streets for the public safety and convenience, unless it either buys out the other company, or the other company goes out of existence, or fails to discharge its statutory duty. The statdte, it is evident, is not susceptible of such an interpretation, nor has the legislature, in our judgment, hampered by such limitations and conditions, the right of a city to purchase and operate the works of one of two competing gas companies within its borders. And if it may own and use without restriction the plant of one such company, it may well be inquired, why may not the city, so far as the other company is concerned, be authorized to erect its own gas works, whenever it may be deemed expedient- and for the public good.

In its present form, section 2486 was passed many years after the two sections which are reproduced in section 2480 and section 2482. Between the earlier and later statutory provisions we discover no repugnancy, and the canons of statutory construction do not require that either should prevail over the other. The authority given to municipalities by the later section, is distinct from and independent of the power granted by the two antecedent sections. But, if such repugnancy did exist in the pre'sent case, it is one of the settled rules of construction that when, in a statute, there are several clauses which present, as compared with each other, an irreconcilable conflict, the one last in order of date or local position must prevail, whether the conflicting clauses be sections of the same act, or merely portions of the same section. This rule, it has been said, is subject to the modification, that a later clause which is obscure and incoherent will not prevail over an earlier one which is clear and explicit. Eudlich on Interpretation of Statutes, sec. 183. But, the provisions of section 2486 are plain and unequivocal, and of definite import. Where the legislature has used words of plain and definite import, it would be very dangerous to put upon them a construction which would amount to holding that a legislature did not mean what it has expressed. “ The fittest course in all cases where the intention of the legislature is brought into question, is to adhere to the words of the statute, construing them according to their natural import, in the order in which they stand in the act.” Dwarris on Statutes, 583; Rex v. Ramsgate, 6 B. & C. 712.

II. It is urged in behalf of the plaintiff, that the Hamilton Gas-light Company acquired, by its charter, a vested right to supply the public, as well as private consumers with gas at such reasonable prices as the council should fix, and that to authorize the citjr to construct and operate its own gas works, would be to destroy that vested right without due process of law. It may be conceded, that the company acquired the right of laying its pipes and conveying gas to the city and its citizens,• but it never acquired the exclusive franchise of opening and using the streets of the city, for the introduction of pipes and other apparatus for the purpose of thus conveying gas. By sec. 53, of the act of May 1, 1852, under which the company was organized, it was provided as follows: “ Any corporation formed under this act shall have full powers, if a gas company, to manufacture and sell, and to furnish such quantities of gas as may be required in the city, town or village where located, for public and private buildings, or for other purposes; and such corporation shall. have power to lay conductors, for conducting gas through the streets, lands, alleys and squares, in such city, town or village, with the consent of the municipal authorities of said city, town or village, and under such reasonable regulations as they may prescribe.” But this section does not purport to grant, either directly or by the permission of the municipal authorities, an exclusive right to any one company, to lay its conductors for conducting gas through the streets of a city, town or village. A gas company may open the streets and lay down its pipes with the consent of the city, under such reasonable regulations as the city may make; but, the right to give such consent and prescribe such regulations, does not carry with it a power to exclude every other gas company, or to bar the municipality from ever using unoccupied portions of the streets for the same purposes. In State v. Cincinnati Gas Co., 18 Ohio St. 262, 289, the principle is stated, that to enable the city council to grant, by ordinance in the nature of a contract, an exclusive right to use the streets and alleys of the city for the purpose of laying downpipes for carrying gas to be used in lighting the city for a term of twenty-five years, the power must be shown to have been expressly granted, or to be so far necessary to the proper execution of the powers which are expressly granted, as to make its existence free from doubt. Grants by the public are to be strictly construed, and an intention to grant an exclusive privilege or monopoly is not to be implied. Where exclusive privileges are not expressly given by the charter, they should not be held to be conferred. Morawetz on Private Corporations, § 1057; Charles River Bridge v. Warren Bridge, 11 Pet. 536, 549; Tuckahoe Canal Co. v. Tuckahoe Railroad Co., 11 Leigh, 42; Shorter v. Smith, 9 Ga. 517; Parkersburg Gas Co. v. Parkersburg, 30 W. Va. 435, 4 S. E. Rep. 650.

Again, by sec. 54, of the act of 1852, it is enacted: “ The municipal authorities of any city, town or village, in which any gas-light company shall be organized under this act, are hereby authorized to contract with any such corporation, for the lighting the streets, lands, lanes, squares and public places in any such city, town or village.” While the language of this section, properly construed, authorized the municipal authorities to contract with a gas company for lighting the streets and other public places, it is not, in the absence of express authority, to be construed as investing them, by implication, with power to grant by contract, to such company, the exclusive privilege in perpetuity of supplying gas for the public lighting.

The city of Hamilton was not, either under the act of 1852, or under any l.aw subsequently passed, bound to enter into an agreement with the gas company, for supplying with gas the streets and other public places in the corporate limits. It did, however, make contracts with the company, from time to time, for that purpose — the last of which expired by its own limitation, on the first day of January, 1889. That the city performed all its contract obligations, is not denied. And if the city^ did not see fit to further contract, it was beyond the power of the company to compel it to do so. Pursuant to its agreement, the city purchased gas from the company for over thirty years, and then determined to erect its own gas works under the authority which had then been given by the statute. In this, there was no destruction of a corporate franchise or vested right of the company. The company still retains the right to contract with the city for the public lighting, and to furnish gas for private consumption. Its pipes and mains remain undisturbed in the streets, and through them gas may be conducted, as long as the company will manufacture it. Indeed, there has been no interference by the city, with any- of the real or personal property of the company. It is conceded in argument by the gas company, that if the city were to supply for the public lighting, some newly discovered or different agency than gas, such for instance as electricity, the company would have no reason to complain; and yet, the investment of the company would be subject to no greater detriment or loss, if any, by the city’s manufacturing its own gas, than by adopting electricity as a mode of public lighting.

There having been no exclusive franchise granted to the Hamilton Gas-light Company, either to open and use the streets for the introduction of gas pipes and other apparatus, or to supply gas in perpetuum, under contract, to the city of Hamilton for public consumption, and the city having complied with the terms of all written contracts entered into with the company from time to time, there was no interference with vested rights, nor does section 2486, when construed as authorizing the city to erect its own gas works, become, as to the company, a law impairing the obligation of a contract. In Turnpike Co. v. The State, 3 Wall. 210, the state of Maryland in 1812, incorporated a company to build a turnpike road between Baltimore and Washington. By its charter, the company had power to take tolls, but, iu regard to its privileges ■ generally, there was nothing special about it. In 1831, the same state granted a charter to a railroad company to make a railroad between the same cities, the line of which ran near to and parallel with the track of the turnpike. The turnpike company set up in defense, that the railroad had been made not only under the authority of the state, but to a considerable extent with the state’s money; the state, in addition, managing it largely, and getting from it one fifth of the whole amount received for the transportation of passengers; that by incorporating a company to make a railroad, with the grant of a charter to the turnpike company in force, the state had impaired the obligation of a contract. But, it was said by Justice Nelson, in delivering the opinion of the court: “ The difficulty of the argument in behalf of the turnpike company, and which lies at the foundation of the defense is, that there is no contract in the charter of the turnpike company that prohibited the legislature from authorizing the construction of the rival railroad. ' No exclusive privileges had been conferred upon it, either in express terms, or by necessary implication ; and hence whatever may have been the general injurious effects and consequences to the company, from the construction and operation of the rival road, they are not the subject of legal redress.”

It is argued and claimed, in substance, that, as long as the city of Hamilton continues to light its streets, public grounds and buildings with gas, the Hamilton Gas-light Company, a corporation organized under a general law passed since the adoption of the present state constitution, will have, while it exists and complies with all statutes of Ohio and ordinances of the city relating to gas companies, the exclusive franchise or privilege, as against the city, of manufacturing and furnishing the gas required by the city for such public lighting; and that if the city is allowed, by virtue of the provisions of section 2486 to erect its own gas works, such privilege will be destroyed. The privilege claimed involves the imposition of a burden upon all tax-paying citizens in the municipality, for the purpose of giving a monopoly to a private corporation for an indefinite period.

If, for the sake of the argument, the company ever acquired such a special privilege, it is evident, that the statute empowering any city to erect its own gas works, as effectually revoked and repealed the privilege, as if that had been the declared intent of the statute. By section 2, article 1, of the constitution of 1851, “No special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly; ” and in connection with this section is to be construed section 2, article 13, which declares that, “ Corporations may be formed under general laws ; but all such laws may, from time to time, be altered ox xepealed.” The general law under which the Hamilton Gas-light Company was formed, was subject to the limitations and reservations contained in these provisions of the constitution. The constitutional provisions entered into the general law, and operated as to all corporations organized under it, in the same manner as a reservation to the legislature embodied in a special charter. Such reservation in a special charter or under a general law, negatives an intention on the part of the legislature to confer irrevocable rights upon the corporators.

In Shields v. The State, 26 Ohio St. 86, a consolidated company was formed by the union of several original and independent railroad companies, in pursuance of the act of April 10,1856 (4 Curwen, 2791). Among the companies forming the consolidation, were two companies chartered and organized before the adoption of the present constitution, and whose charters were, therefore, not subject to the constitufcional provisions above quoted. It was held that, the consolidated company was a corporation' 'formed under a general law, within the meaning of section‘2, article 13, of the constitution, and as such, was subject to the limitations and reservations contained in that section, and in section 2, article 1, of that instrument; and that the general assembly had power to pass the- act of April 25, 1873 (70 Ohio L. 161), altering and regulating rates of fare chargeable by such consolidated company. The case was taken on error to the Supreme Court of the United States (see 95 U. S. 319), and the judgment of the state court was there affirmed. It was there held that the general assembly did not impair the obligation of a contract by prescribing the rates for the transportation of passengers by the new company, although qne of the original companies was, prior to the adoption of the constitution of 1851, organized under a charter which imposed no limitation as to such rates. The constitutional’provision that, “ no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the general assembly,” entered, it was said by the court, into the act under which the consolidation was made, and rendered the corporation created and the franchises conferred subject to repeal and alteration, just as if they had been expressly declared to be so by the act; and the act of April 25, 1873, in the particular in question, was held to be a legitimate exercise of the reserved power of alteration, and was therefore valid.

The force of the doctrine1 announced in the ease of The Dartmouth College v. Woodward, 4 Wheat. 518, that the creation of a private corporation by charter is such a grant as includes an obligation of the nature of a contrac’t which no state legislature can pass laws to impair, has been, in a large measure, obviated by the practice of reserving to the state the right to alter, revoke or repeal charters, general incorporation laws, and special privileges and immunities. Whether such special privileges and immunities be designated property or a capacity to acquire and hold property, a wise public policy suggests, that they should not be irrevocably placed beyond the sovereign control of the state. The corporeal property of the Hamilton Gas-light Company, real and personal, has remained unimpaired, "but the exclusive franchise claimed by the company, as against the city, would, if it had ever been acquired, be subject to the power vested by the constitution in the general assembly.

Demurrer to the answer overruled, and petition dismissed.

Spear, J.

(dissenting). The proposition is that the city of Hamilton may build and operate gas works in opposition to, and in competition with, the Hamilton Gas Company. Authority for this action is claimed to exist in sec. 2486, Revised Statutes, enacted May 7, 1869, which is quoted in the majority opinion. I respectfully submit that the section, properly construed, gives no authority for such action. In other words, that sec. 2486 does not apply to this case, but gives to municipalities power to erect gas works only where none exist.

I concede that the letter of the section appears to give councils power, whenever deemed expedient and for the public good, to erect gas works. But we should try to get at the meaning of the "whole statute upon the subject, and not be content to determine the rights of the parties by a strict construction of one clause only. The subject matter should be considered, and we should endeavor to reach the intent of the law-makers. Disregarding these considerations, and reading according to the mere letter, would lead to false and unjust results, while if we regard the subject matter, the purpose and object, and the way in which parties whose interests are to be controlled by the law will be affected by the several parts, we may hope to reach rational, just and satisfactory results.

The law as to municipal control of the subject of gas supply is.contained in Revised Statutes, secs. 2478 to 2491, inclusive, and to get at the meaning and purpose of the legislature it is necessary to consider the sections as a whole. The controlling provisions are sufficiently set out in what precedes and follows, and need not be quoted anew. A reading of them shows that the object to be accomplished was to afford means by which municipal corporations might be supplied with gas; and, having in mind that general policy of the state, which has long obtained, to confine the powers of municipalities to matters which relate to the control of public interests, leaving to private enterprise the supplying of public needs where the same can be better and more economically managed by private agencies,, though under the supervision of public officers, it seems rational to say that this statute, taken as a whole, contemplates the furnishing of gas by private parties or corporations, under the control of municipal councils; and that the municipality may itself perform that office only in case of failure by such party or corporation, or in case there is not such agency present equipped to perform the service. This view is apparent when we note with what care the contingencies upon which the municipality may itself erect works are pointed out in secs. 2480 and 2482, and observe the modifying provision of sec. 2481, which gives the council, after the default mentioned in the preceding section, authority to permit the company to use and occupy the streets, and of sec. 2488, which provides that a temporary failure to furnish gas shall not operate as a forfeiture, unless it were through the failure or misconduct of the company. It is strengthened, too, by the words of .the last clause of 2486, “ or to purchase any gas works, already erected therein.” That is, where gas works have been erected, the council may buy, and where none have been, there council may erect works at the expense of the corporation. If power to erect where there are already works erected is implied by the language of the first clause, why add the words “ already erected therein,” to the last clause ? Surely, they would be superfluous.

This construction makes the whole statute consistent, gives effect to every word, clause and provision of the entire law, and negatives any idea that it was the legislative purpose to authorize a municipality to erect and operate works in competition with a company therein duly established; while to give to section 2486 the construction claimed for it by the city, renders wholly nugatory and meaningless sections 2480, and 2482; for what possible object would there be in providing as is there enacted, that the right to «establish works by the city should depend upon the failure of the company to lay mains where directed, or furnish gas at prices fixed by council, if, under the same circumstances, the city had a like Ught whether the company so failed or not ? Besides, under a well known rule of construction, the general provision of section 2486 must give way to the special provisions of sections 2480 and 2482. Again, if section 2486 is to receive the construction claimed by the city, the effect is to repeal, by implication, sections 2480 and 2482. Repeals by implication are not favored.

It is true that section 2486 is later in local position, and in a sense, later in date of enactment than 2480 and 2482, and much is claimed for this. To me these facts seem entirely without practical value. Section 2486 first appeared in the municipal code, numbered there section 423. The act was entitled “ an act to provide for the organization and government of municipal corporations.” It repealed, with many other acts, that part of the act relating to municipal control of gas supply which embodied sections 2480 and 2482, and, to all intents and purposes, took the place, as a symmetrical whole, of all previous legislation upon the subject. Now, as the statute so enacted purported to contain a full expression of the legislative will, and to be treated as though enacted simultaneously, how can there be any first, or middle, or last ? To the rule even as claimed by the city there are modifications and exceptions. “Nor, as a statute is to be construed with reference to other statutes, in pari materia as well as by a survey of the whole context, and as the various provisions are to be made to stand together, if possible, will such be the result, where, upon a comparison of the entire act with others upon the same subject, there appearing no intention to change the general scheme or system of legislation upon the same, the earlier provision harmonizes, and the latter conflicts with suoh statute. And it has been seen that a reading of the provisions of the whole statute together, may give to earlier sections the effect of restricting the meaning of later ones, as well as to the latter the effect of restricting the operations of the former.” . Endlich, sec. 183. “ The intention of the law maker is to be deduced from a view of the whole, and every part of the enactment, taken and compared together. He must be presumed to have intended to be consistent with himself throughout, and at the same time to have intended-effect to be given to each and every part of the law; and from this it results that general language found in one part, is to be modified and restricted in its application, when it would otherwise conflict with specific provisions found in another.” State v. Blake, 2 Ohio St. 147; See, also, Allen v. Parish, 3 Ohio, 187; Pancoast v. Ruffin, 1 Ohio, 381; Hirn v. The State, 1 Ohio St. 15, and State v. Commissioners, 20 Ohio St. 421.

But the section will not bear the construction claimed for it by the city for other reasons. This company was organized in 1855, under the act of May 1,1852, “ to create and regulate gas-light and water companies.” Its purpose was to manufacture gas and furnish it for lighting the streets, and public and private buildings in the city of Hamilton. This was a public purpose. Its accomplishment would benefit the city by enabling it to more effectually protect persons and property therein. In accepting the provisions of the laws then in force, the company, in consideration of the privilege granted, undertook to supply a public want. This duty it cannot avoid or shirk. Neglect of it, as we will presently see, would subject it to severe loss and possible deprivation of corporate existence. To avail itself of the rights and privileges conferred, and to enable it to perform the duty imposed, the company, under the authority and direction of the city of Hamilton, expended large sums of money in the construction of works and the laying of mains in the streets of the city, and the furnishing of facilities for the supply of gas to the city and its people, taking upon itself whatever risk of return upon the capital thus invested there might be in the venture. It undertook this work and assumed this risk in view of the law regarding gas companies, and the power of municipal corporations over them. The act referred to authorized the incorporation of such companies for the “ purpose of supplying gas to light the streets and public and private buildings of the city,” etc., the purpose to be specified in the certificate of incorporation, and when incorporated, the companies “ were authorized to cany on the operations named in the certificate,” without limitation as to time. They were to “have full power to manufacture and sell gas and.furnish such quantities of gas as may be required in the city.....for public or private buildings, or for other purposes.” And, in order to accomplish this, were given power to lay conductors for conducting gas through the streets, etc., with the consent of the municipal authorities. Amendments to the act gave to municipal corporations the power to regulate the price at which gas companies should furnish gas to the city and to private consumers, to fix the price for rent of meters, and to require them to lay pipes and light such streets as the council might direct. On failure to extend pipes as directed, the city could erect works and lay pipes for the supply of such streets, and other streets not lighted. A neglect of the company to furnish gas to the citizens, or other consumers of gas in accordance with prices fixed by the council, would forfeit all its rights, and the city could then erect, or authorize any person to erect, works, and supply gas to the city and private consumers. Such, in brief, were the provisions of law on the subject at the time of the incorporation of this company. Under this law, so long as a company complied with every lawful requirement to the public and to private consumers, the public object of the statute was accomplished; and, if the construction I contend for be correct, the right of the company to furnish gas to the city and to private consumers therein, remained unimpaired, and the city had no power to interfere with the company’s chartered rights by entering into competition with the company while carrying out the purpose of its organization. It is not pretended that this company has, in any respect, failed in the performance of any lawful requirement.

It will be borne in mind that the city is but an agency created by the state for the more effectual carrying out of its governmental purposes. The city has such power, and such only, as is clearly given by the state, and, under the statute, the only discretion it had in the first instance was to give or withhold its consent to the use of its streets and grounds, and, having exercised that in favor of the company, and the company having acted on that consent, its further power was simply to regulate, within reasonable discretion, the company in its operations conformably to the statute. If it has now power to do more than this, it( is because of new authority derived from the state. So that, the question at issue here is, in reality, between the gas company and the state.

In effect the statute gave to this company the exclusive right, so long as it complied with every requirement of law, to supply gas to the city of Hamilton and its inhabitants. This right was upon condition of performance of the required service by the company, an object beneficial to the community, and was a grant of a franchise vested in the state. Based as it was upon abundant consideration, and there being competent parties and a lawful subject matter, the transaction was, in all essential particulars, a contract between the state and the company, and if, as I claim, and think can be maintained, there was granted an exclusive right, any taking back by the state in the manner proposed would be a violation of that contract, and would result in the taking of private property without compensation. The extent to which such contract may be changed under the constitutional power to alter or repeal will be considered further on.

By the act referred to, the general assembly did not part with the police power and duty of protecting the public health, the public morals, and the public safety, and hence such contract was not in excess of the power of that body. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Louisville Gas Co. v. Citizens' Gas Co., ibid. 683.

But it is insisted that the franchise of the company is a mere license; that the company took it subject to the power of the state, at any time, without regard, to the question of performance of duty by the company, to vary it by a new law, or, indeed to destroy it altogether. In other words, the position of the city is that the state has the right at any time to abandon the obligation it incurs where it creates a corporation for the express purpose of performing a public service, and, by a change in the law, it can itself do, by its agent the city, the very thing it created the corporation to do, without making compensation for the material property, necessary to its business, which the company has acquired. This claim is grounded on sec. 2, of article 13, of the constitution. That section reads: “Corporations may be formed under general laws, but all such laws may, from time to time, be altered or repealed.” This section should not be looked at alone, but in connection with other sections of the same instrument. The inviolability of contracts secured by sec. 28, of article 2, which provides that “ the general assembly shall have no power to pass.....laws impairing the obligation of contracts,” and the protection thrown around private property by sec. 19, article 1, which ordains that “ private property shall ever be held inviolate, but subservient to the public welfare ”.....and when taken for public use in time of peace “a compensation therefor shall first be made in money,” afford considerations just as binding upon the public conscience — and which, I submit, ought to be just as binding on the conscience of courts — as the injunctions contained in the section first quoted; and if the effect of a proposed alteration or repeal is to violate a contract between the state and some of its citizens, in such way as to result in the taking of private property without compensation, then such change cannot be made without violation of the clauses last quoted. If, therefore, in the given instancé, a contract has been made which it would be a violation of sec. 28 to repudiate, the power given by sec. 2, article 13, must be construed to be a power to control and regulate, not a power to destroy and confiscate. The repeal provided for by article 13, looks to a repeal of the charter; that has not been attempted by the enactment of sec. 2486. The corporation, as such, under either construction of that section, still survives. And while, if the construction claimed by the city is correct, the effect would be the equivalent of a repeal of the charter, no such purpose appears in that section; which affords additional ground for rejecting that construction. The state cannot, by right, more than can an individual, repudiate its contracts without making the other party whole. That alterations, in a ease like the present, may go only to the manner of exercising the power conferred, is sustained by abundant authority. Hyatt v. McMahan, 25 Barb. 457; 2 Morawetz, sec. 1095, and following. “The power of alteration and amendment is not without limit. The alterations must be reasonable; they must be made in good faith, and be consistent with the object and scope of the act of incorporation. Sheer oppression and wrong cannot be inflicted under the guise of amendment and alteration. Beyond the sphere of the reserved powers, the vested rights of property of corporations, in sueh cases, are surrounded by the same sanctions and are as inviolate as in other eases.” Shields v. Ohio, 5 Otto, 325. “ That this power has a limit no one can dispute. All agree that it cannot be used to take away property already acquired under the operation of the charter, or deprive the corporation of the fruits actually reduced to possession, of contracts lawfully made.” Chief Justice Waite, in Sinking Fund Cases, 9 Otto, 700. To like effect are the decisions of the Supreme Court of Massachusetts, where a statute embodies substantially the provision of sec. 2, of article 13, of our constitution. In Commonwealth v. Essex Co., 13 Gray, 239, the court says: “The Essex Co., having made and maintained a fishway in the dam across the Merrimac river, to the satisfaction of the county commissioners, as required by their charter, and having duly accepted the act authorizing them to increase their capital stock on condition that they should be liable for all damages occasioned by their dam to the owners of fish rights above it, and having paid large sums of money for such damages, cannot afterward be required by the legislature, in the exercise of their power to regulate fisheries, to make different fishways, notwithstanding the Rev. Stats., c. 44, § 28, reserving to the legislature the right to amend, alter or repeal charters.” And Chief Justice Shaw, in the opinion, says: “ The power of repeal is limited and qualified, and was so considered in the case of Crease v. Babcock, 23 Pick. 334.....Where, under power in a charter, rights have been acquired and become vested, no amendment or alteration of the charter can take away the property or rights which have become vested under a legitimate exercise of the powers granted.” In Commissioners v. Holyoke Co., 104 Mass. 446, the holding is: “The provision of the Rev. Stats., c. 44, § 23, and Gen. Stats., c. 68, s. 41, declaring that acts of incorporation shall be subject to amendment, alteration or repeal at the pleasure of the legislature, reserves to the legislature the authority to make any alteration or amendment of a charter granted subject to it, which will not defeat or substantially impair the object of the grant or any rights vested under it, and which the legislature may deem necessary to secure either that object or other public or private rights.” This language is quoted with approval by Morton, J., In Parker v. Railroad, 109 Mass. 506, and there is no doubt that it is the settled doctrine of that state upon the subject, nor that the decisions cited from the reports of the Supreme Court of the United States settle the same rule for that court. The law has not been settled otherwise in this state, and it is respectfully submitted that the present case affords a good opportunity to settle it right.

Had the general law of the state in force when the gas company was organized been incorporated in a special charter, it could not have formed a more essential part of the contract, or clothed the company with greater powers. While the act of May 1, 1852, does not, in terms, give an exclusive right to the company, yet if such right is necessary in order to fully accomplish the object of the statute, the result is the same. The right to furnish gas thus vested in the company was an exclusive right because, so long as the company complied with the law in the full performance of its duty, it had the right to furnish all gas required. “ Full power.....to manufacture and sell, and to furnish such quantities of gas-.....as may be required in the city,” is the language of the grant. This implied that neither the city, nor any person or corporation deriving its powers from the state, could have a like right, for it would be impossible for the two rights to exist together. It is not more impossible, in physics, for two bodies to occupy the same space at the same time than it would be for two distinct organizations to occupy the streets of Hamilton in a way to furnish gas to the city, and to furnish the city and its people all the gas that might be required. If one did the other could not.

As to the purpose of the city in the erection of the contemplated works, it may not be of the first importance to determine whether it is intended to furnish gas for private consumption or not. The company alleges that such is the purpose. The response is that no action has been taken towards furnishing gas for private consumption; but the defendant cannot say what action, if any, the city will in the future take. This falls short of a disclaimer of the intent charged, and when it is remembered that, by an almost unanimous vote of the electors, the scheme of building works was approved, it needs no prophetic vision to see that, if private consumers can exercise choice, so soon as the city, is disposed to furnish gas to them, the demand upon the company- for gas from all sources will practically cease. Sb .that the proposition that the contracting and operating qf gas works by the city, would work practical confiscation of the property of the gas company seems clear. With the power to fix the price at which the company must furnish gas, and the power to fix its own price for that manufactured by itself, whatever might be the wish of private consumers, self interest would determine their choice, and real competition would be impossible. Such competition would not only prevent the company from further receiving benefit under its franchise, but would practically destroy the value of its property. Though not an actual physical taking of the property, there would be such practical destruction of the common and necessary use, as would be equivalent to a taking, and this would be “ a taking ” within the meaning of sec. 19, art. 2, supra, and within the meaning of the Federal Constitution. Pumpelly v. Green Bay Co., 18 Wall. 166.

The construction of the statute claimed by the city is not reasonable. It shocks the moral sense. To admit that the legislature, after having, by laws enacted prior to the organization of this company, held out to gas companies an inducement to invest large amounts of money in works and pipes for the purpose of establishing their business of furnishing “such quantities of gas as may be required,” would, when the expenditure had been made on the faith of the power granted, by an amendment, give to municipal corporations the power to embark in the same business, to supply the same want, and thus place the property of gas companies wholly within the control of municipalities, acting on the caprice of city councils, or the impulsive vote of the people, is to presume a lack of good faith in matters of state which would be dishonorable between individuals. A statute ought not to receive a construction warranting such a conclusion, unless its terms are so direct and unambiguous as to admit of no other construction; and if, to give the construction contended for, would result in an interference with vested private rights, and cause the state to legislate back to-itself, the franchises, rights and privileges, which it had created, and thus destroy the corporeal property of the corporation without compensation, then such construction is not permissible, because it drives us to the conclusion that the statute is unconstitutional. Sinking Fund Cases, 99 U. S. 718. “A statute should ’ not receive a construction which makes it conflict with the constitution, if a different interpretation is practicable.” Burt v. Rattle, 31 Ohio St. 116.

It seems to be feared that this gas company cannot be accorded the right given it by the statute under which it was organized to furnish the gas that may be required in the city of Hamilton, because to do so would be a violation of the clause of the constitution (sec. 2, Art. I.), which forbids the legislature to grant special privileges that may not be altered, revoked, or repealed, and because there would thus be created a monopoly. If this is seriously urged the answer to it is, that no special privilege or immunity is created because all citizens in Ohio had equal right, under the law, to organize a corporation for the purpose of doing what, in the nature of things, only one organization could do, namely, supply the need of the city of Hamilton for gas, and no monopoly, in any objectionable sense, was or could be created, because the company was absolutely within the control of the city as to the price of its commodity, and, in all essential particulars, in the conduct of its business with the public. It is not wise to be too easily disturbed by the cry of “ special privileges,” and “ monopoly.” Those terms became odious from the fact that in England, by law, or by royal prerogative, letters patent to particular individuals, were granted to conduct certain lines of business, or trade in certain commodities, to the exclusion of all others,, which resulted in the restriction of production, the impairment of the quality of the article produced, the enhancement of prices, and the enrichment of the few and impoverishment of the many, and it was to forever prevent such enactments that the section of the constitution referred to was ordained. B ut no such result, in either aspect, could possibly ensue in the case we are considering, and hence no valid objection on the ground urged, exists. On the other hand the business of this company was a business of a public character, at least so far as supplying the needs of the city was concerned. It was a want which the state might, directly, or through a proper agency, supply by contract. In principle the case is not essentially different from that where the state lets to a bidder, where but one appears, the right to erect some public work. The advantage, if any results, may extend over a longer time, and it may not; but however ■ that may be, all citizens, having the means, have an equal right and opportunity to avail themselves of the advantage. In this case the state held out the inducement to all citizens to organize for the purpose of supplying a public want of municipal communities. The incorporators of the Hamilton Gas Company accepted the state’s proposition as regards the city of Hamilton. No other citizens did accept it. The company then went forward, and, in all respects, performed the duty, complied with the law as it then was, and with all amendments as to its proper regulation which have since been enacted. With what grace can the state now say to it you must withdraw, and leave to another agency the performance of the duty we entrusted to you, and lose the value of the property you have acquired in performing that duty, property which, from its nature, can neither be removed nor profitably applied to any other purpose? And, from a moral standpoint, as well might the state, after it had contracted with a citizen to erect a public building, and after he had procured his material, constructed his machinery,, and employed his labor, ignore its contract, purchase its own material, construct its own machinery, and proceed with the public work.

Attention is called to the statute, sec. 2485, which forbids councils to agree with any person or company to give or continue the exclusive privilege of using the streets, etc., for the purpose of conveying gas. The bearing of the section upon the question is not perceived, but if it has application, in principle, it is enough to say that no such provision existed at the time of the organization of the Hamilton Gas Company.

The decision in State v. Cincinnati Gas Co., cited in the majority opinion, would seem not to have close application to the case at bar. That was upon a question of tire power of a municipal corporation to grant an exclusive right to a gas company; this case raises the question whether the state can grant such right, and if so, whether after the right has been granted, it can be taken away to the destruction of the company’s plant? Turnpike Co. v. The State, 3 Wall. 210, is also cited. The cases are hardly parallel. Had the Maryland legislature undertaken to-authorize another turnpike company to build and operate a turnpike over the same road, with authority to fix the tolls to be charged by the rival company, there would have been a question similar to the one here being considered. The other cases cited in the majority opinion, as to the question of vested rights, will be found of like import, and it is respectfully submitted that the holdings do not sustain the city’s claim. The controversies arose between companies supplying similar wants but in a wholly different way, and occupying different ground. Ours is a case of the state itself proposing, against a. company, to supply the identical public want, by the identical means, and upon the same ground. In Shields v. The State the power exercised was one of regulation. No one' has claimed that this may not be done. The Hamilton Gas Company is not resisting regulation.

Nor would a judgment of ouster work injustice to the city, for before the expenditure of any money or the incurring of any obligation on the part of the city, it was duly notified of the claims of the company, and that legal action would be taken to enforce them.

It is not assumed that there is any vested right in the gas company to light the city of Hamilton. It was to furnish what gas might he required. So that, when gas is not longer required the right ceases. The city may return to oil or gasoline, or adopt some newer agency, as electricity, and the people may refuse to burn gas; and of this the gas company cannot complain, because its rights are not invaded. That a time might come when gas would not be required, was one of the risks the company assumed. But so long as the streets, public grounds and buildings of the city are to be lighted with gas, the l ight of this gas company to do that lighting, it seems to me, cannot be lawfully denied. Of course it is subject to the control of the city in all the particulars specified in the statute under which it was organized, and in later statutes relating to regulation. Under such authority the power of the city to regulate is ample. This regulation, however, is confined to the carrying out of the purpose for which the company was organized. While it may regulate, it may not destroy.

The contention of the city shocks the sentiment of common justice. It is opposed to the general policy of the national government, as shown by the decisions of its highest court, and the action of its executive officers, and to that of our own state. An instance is referred to by counsel. Turnpike companies and plank-road companies were authorized by statute, and many toll-roads were built in various parts of the state, with right to take toll from all travelers. When the state sought to resume the power granted, provision was made by statute (sec. 8086 Revised Statutes) by which the companies should be paid for their property, and commissioners of counties, where these roads were located, were authorized' and required to purchase the property of suuh companies within the county, and to issue bonds for the payment of the same. Under this act, as is stated, Butler county alone has paid over forty thousand dollars. In its action in this matter the state has been governed by the plainest principle of justice and fair dealing. The same principle applied to 'the affairs of the city of Hamilton and the gas company would require that, if the city desires to engage in the gas business, it should undertake to avail itself of the power given in sec. 2486, and endeavor to buy the works already in operation there.