MANHATTAN TRUST CO. fl. CITY OF DAYTON.
327
statute, any more than a sole owner could, nor an equitable owner more than a legal owner. Neither is such a statute; which is es· sentially like the statute of frauds, any less binding in equity than at law. 2 Story, Eq. § 754; Randall v. Howard, 2 Black, 585; May v. Sloan, 101 U. S. 231. No right available to the orator as a defense in equity, and not at law, is made to appear, and the orator must therefore be left to' make defense at law. Let a decree be entered, dismissing the bill, but without prejudice to any defense at law. MANHATTAN TRUST CO. et al. v. CITY OF DAYTON. (Circuit Court of Appeals, Sixth Circuit. No. 114. 1. MUNICIPAL CORPORATIONS-CONTRACTS-GAS COMPANIES.
December 9, 1893.)
When a municipal council is authorized by statute to contract for a period not exceeding 10 years, its contract for 20 years, or for an indefi· nite time, cannot be sustained as a contract for 10 years, but is entirely void. . Under a statute empowering municipal councils to regulate. from time to time, the price of gas, and authorizing them to bind themselves by contract not to reduce the price below an agreed minimum for 10 years, a council contracted for minimum schedule rates by "mixer measurement" for 5 years. Afterwards it passed an ordinance providing in one section that consumers might elect to have gas furnished by meter instead of at the schedule rates, In which case a maximum price was fixed, without any limitation of time. A subsequent section declared that the contract before made should continue in force, "except as herein altered" for the unexpired time thereof. Held, that the provision for a maximum price was not a contract for any period, but was an exercise of the power to .regulate, and a limitation on the license granted, and continued in force after the expiration of the original contract, and until repealed. 55 Fed. 181, affirmed.
2.
SAME-ORDINANCES-CONSTRUCTION.
Appeal from the Circuit Court of the United States for the South· ern District of Ohio. In Equity. Petition by the city of Dayton, Ohio, intervening in a suit by the Manhattan Trust Company against the Dayton Natural Gas Company. Heard on demurrer to the answers of com· plainant and the receiver of the gas company to the intervening petition. The demurrers were sustained, and the receiver was en· joined from charging more for gas than the rates fixed by ordinance. 55 Fed. p. 181. The trust company and the receiver appeal. Af· firmed. The Dayton Natural Gas Company Is an Ohio corporation, organized originally under the name of the Southwestern Ohio Natural Gas & Petroleum Oil Company. On the 18th of March, 1887, the city council of Dayton, Ohio, by ordinance, authorized said corporation to occupy streets, alleys, and public grounds of the city, and lay pipes for the purpose of furnishing gas to the public and to private citizens. By the terms of the ordinance it had 18 months within which to introduce gas into the city, UDder penalty of forfeiture of all the rights under the ordinance. The lJompany accepted the ordinance, and executed the bond as required by it, and .began the work of establishing itself within the city. It failed, however, to introduce gas
328
FEDERAL REPORTER"vOl.
59.
by Jl,> qonsl:lquence or: this failure the city council, by resolution) ,ll!. RW'/ilUllIlce of. the reserved' power mentioned in the ordinance, declared, 1111 l'jghts granted thereby forfeited. Prior to this forfeiture, und on the 23d' of December', 1887, the council had passed an ordinance l'egulating the pi'ice to' be charged by' the gas company for natural gas to .be. furnished by purposes for' and, during a period of five years next elIi;luing from and after the date at which the ordinance should take l'ft'ect, which was to be at the expiration of 10 days from the date of its first publication., 'l'he schedule of prices contained in that ordinance related alone to gas to be furnished for fuel purposes by "mixer measurement." Section 2 of the ordinance was in these words: "The foregoing is fixed as the minimum price at which said city council requires said company to furnish gas to the citizens ot said city, and for the public buildings of said city, for said term of five years, and said company is hereby required to assent thereto by written acceptance, filed in the office of the city clerk of said ,city." This ordinance was du,Iy accepted by the gas company. On the 28th of March, 1889, the name of the company having been changed to the Dayton Natural Gas Company, an ordinance was passed by the city of Dayton, granting to the company "the right and privilege to lay, maintain and operate pipes in the city for the purpose of supplying natural gaS, for heating, fuel and power pm'poses only." This ordinance was in, the, following words and figures: "Section 1·. Be it ordained, by the city councll of the city of Dayton, that, subject to the terms, conditions and limitations of this ordinance, there is granted to the Dayton Natural Gas Comp/lny, its successors and assigns, the right alld prl,vilege, for the term of twenty years, to lay, maintain and operate mains, pipes, branclles and conduits through the streets, lanes, and public grounds of said city for the purpose of supplying aileys, said city and its inhabitants with natural gas, or produced gas, for heating, power pUl'poses only. "Sec. 2. Before said company shall do any work or lay any pipes, it shall execute a bond to the city of Dayton in the penal sum of $50,000, to the ajlceptance of tpe ,city council of said city, with not less than five sUl'eties thereon, th,ree Qf,whomshall be residents of said city, conditioned as follows: "(I) 'l'hat said company shall proceed within ten days after being notified of said city, to repair and place in good so to do by the city civil condition the streets, aVennes, lanes and alleys of said city, where pipes have heretofore been laid or work done by said company, or by the S. W. O. N. G. & P. O. Co., and prosecute said work with diligence. '''(2) That said company will not in any manner molest, damage or interfere with any. of the gasOl', water pipes, or public or private sewers now laid or constructed in or lUong any of the streets, ,avenues, lanes, alleys or public grounds of said city. "(3) That said 'company will restore any and all streets, avenues, lanes, alleys and pnblic grounds.In which it may lay pipes, or which it shall distur.b or interfere with in laying pipes, to as good condition as they were before the laying of said pipes, "(4) That said company Will, without delay, remove from the streets, avenues, lanes, alleys and public grounds all dirt or rubbish caused by the laying of said pipes. "(5) That said, company Will reimburse said cIty for all money expended in restoring any street, avenue, lane, alley or public place, or any part thereof, to as good condition as the same was before the same was opened for the purpose of layin,g pipes therein; and for all money expended for clearing away any dirt or rubbish caused by the laying of pipes, as aforesaid, where said company has failed to so restore the condition of any street, avenue, lane, alley or public place, or to remove such rubbish or dirt within ten days after receiving written notice from the city civil engineer so to do. "(6) That It shall indemnify and save harmless the said city from and a,gainst any and aU claims, demands, suits or liabilities of any kind that 'said city ·may be subjected to or incurred by reason of or growing out of the opening, of said streets, avenues, laneS, alleys and public places, or the laying of pipes therein, or of permitting or of haVing such gas within
MANHATTAN TRUST CO. V. CITY OF DAYTON.
329
the city, or in the said pipes, or the doing of work incident to this grant, or in consequence of injuries or damages to persons or property by such gas, or by reason of any explosion of such gas, or growing out of the failure of said company to restore the streets, avenues, 'lanes, alleys and public places as aforesaid, it being the intention that said company shall be primarily liable as between it and the city in all such cases. "Sec. 3. The city council may, at any time, require the renewal of said bond, when In its judgment it has become insufficient. "Sec. 4. Whenever said city shall determine to construct any sewer in or along any street, a-venue, lane, alley or public place where any pipe of said company is laid, said company shall, at Its own expense, lower, elevate, change, or remove any such pipe, so that such sewer may be constructed as desired by the city. "Sec. 5. All pavements, sidewalks, curbstones, gutters, streets, lanes, alleys, avenues or pUblic grounds disturbed or injured by said company, In any manner or by any means, shall at once be placed in as good condition as it was before so injured or disturbed. "Sec. 6. All work in laying or repairing pipes shall be prosecuted in such a manner as not to interfere with the use or travel upon the streets, avenues, alleys, lanes or public places of said city, where it can be avoided, and when such use is unavoidably obstructed by said company it shall, with reasonable dispatch, repair and replace such street, avenue, lane, alley, or public place. "Sec. 7. All pipes, mains, and apparatus of every kind used by said company shall be of the most improved design and quality. All pipes shall be of standard weight, and be so laid as not to interfere with the use of the streets, avenues, alleys, lanes and public places after same are In place. "Sec. 8. In order to provide against gas that may escape from high and low pressure mains and pipes from passing into cellars, sewers and buildings, it shall be, and is hereby, made the duty of said company to furnish and supply perforated stop-box lids on all stop-boxes. Gauges showing the amount of pressure on all natural gas lines shall be erected in the city civil engineer's office, at the' expense of the company, and there shall be as many gauges as are necessary to indicate the pressure upon all low pressure lines in said city. "Sec. 9. Said company shall at all times maintain pressure for domestic use of not less than four ounces nor more than eight ounces to the square inch, at the point of consumption. "Sec.· 10. Any consumer within said city shall have the right to require gas to be furnished by meter measurement, and not by the schedule rates; in cases where a meter is used, said company shall have the right to charge and receive any sum not exceeding ten cents per thousand cubic feet, if paid within ten days, or twelve and one-half cents per thousand cubIc feet, if not sQ paid, for the gas used. Such meter shall be furnished and se,t in place upon the application of any consumer, without cost to such consumer, by said company; but said company' shall be entitled to charge a rent of three dollars per year in advance therefor. "Sec. 11. For all manufacturing purposes, natural gas shall be supplied and furnished at the option of the consumer. First, at not to exceed seventy-five per cent of the cost of coal; or, second, by special agreement, and in that event, at the same rate to all, whether large or small consumers, and in no case shall preference be given In price to one consumer over another; or, third, by meter measurements, not exceeding ten cents per one thousand cubic feet, if paid within ten days, as heretofore prOVided, the meter to be furnished and set by the company without cost to the consumer, but at the same rent and terms as heretofore named. "Sec. 12. Said company may cut off the gas from any consumer in case of ten days' default after bills are due In the payment. But when paymeni is made, gas shall again be furnished to such consumer, on his request. "Sec. 13. Said company shall be compelled to furnish gas to' all applir..ants, whenever applied for. Said company shall, within ninety days after being ordered 80 to do by the council, lay pipes in any streets, lanes, av(>nues, alleys or public places, contiguous to streets, etc., where their· pipes are
330
FEDERAL ,REPORTER I
vol. 59.
then that, In theoplnioD or Bald city councll, the amount or gas will justify the laying of $ll.id pipes and making said Qonnections, and provided. one-fifth in number of the owners of propertY.·upon tl;le line of such extension agree to subscribe for gas. ,"Sec. 14. Said company shall supply natural gas to consumers and to said city so long as said gas shall last. Said company shall supply gas to the city building, without cost to the city, sufficient to heat said building. The council of said city shall appoint a proper person to superintend the laying of pipe and 'repairing of streets, etc., while said line is in process of construction, and said company shall pay the salary of said person, said salary not exceeding twelve hundred ,dollars per year, to be fixed by council. "Sec. 15. Mixers numbered as follows shall have openings of the following diameter through them: No.8, 8-32 of an inch. No.6, 4-32: of an inch. No.7, 5-32 of an im.'h. No.9, &-32 of an inch. "Mixers designs,ted by letters shall have openings or the following diameter through them: Mixer A,' 6-32 of an inch. Mixer B, 7-32 of an inch. Mixer 0, 8-32 of an inch.. Mixer D, 9-32 of an inch. Mlxer,E, 10.,..32 of an inch. , Mixer l'\ .11-82 of an inch. "The thicknesS of meUiI through which the outlet .for gas Is made in the mixer, should not exceed three-sixteenths of an inch. Any of the above mixers shall be used wbenrequired by persons wishing quantity of gas they will sUPPly. lnch measurements above refer to regulation sizes. The contract hel'etofol,'e made between the city and this company, as to schedule of prices, sballbe in fuIlforce except as herein altered, and for the unexpired time of said original contract, and all property rights heretofore acquired by this wmpany shall be preserved to It, except as modified herein. "Sec. 16.. Salli,company shall, at its own expense, furnish and lay all service pipe to the curb line of streets. "Sec. 17. In prosecuting the wor».. of laying pipes, said company shall be subject to all genera,J ordinances of the city of Dayton, not inconsistent with this ordinance. ."Sec. 18. Whenever the sald council of said city shall determine to pave any of the streets of said city, said company shall, if'"required to do so by resolution of said city council, lay down its mains and service pipes in and along such streets to be improved at such times as the city council may direct. "Sec. 19. If said company shall willfully violate any of the provisions or this ordinance, directing anything to be done, or enjoining the doing of anything, It shall be liable to the city in the sum of two hundred dollars, as llquidated damages, to be recovered in a civil action. "Sec. 20. That this ordinance shall take effect at the date when said company shall file its written acceptance of the provisions hereof with the city clerk of said city." , Under the bill ·filed in the circuit court of tlle United States for the southern district of Ohio, western. division, by the complainant, the Manhattan Trust Company,. the property of, the defendant gas company was placed in the control ofa .receiver appointed by that court,. who at once quallfied and took possession. The receiver, claiming that after the expiration of the term of five years mentioned in the ordinance or December 23, 1887, iiXlng the schedule ,of prices for gas furnished· througl1 mixers, there was no rate fixed. by ordinance or agreement from and after the 10th of January, 1893, proceeded to carry into effect a resolution of the defendant company, passed·ln December, 1892, in anticipation of the termination of the contract crea1;e{l .. py the ordinance or December, 1887,advanced the rate of gas to 20 cents per 1,000 cubic feet to all consumers, and sent out his bills accordingly. The city of Dayt9n tiled its intervening petition lntbe cause, alleging
KANHA'1'TAN TRU'ST CO. tI. CITY OJ' DAYTON.
831
that the action of the receiver In charging a rate In excesB of 10 cents per 1.000 cubic feet was In violation of the ordinance of the city passed March 27, 1889. This petition was answered by the Manhattan Trost Company, and by the receiver, setting up the various ordinances and agreements heretofore mentioned, and insisting that 10 centll per 1,000 cubic feet was an absolutely Inadequate price, and ruinous to the Interest committed to the control and custody of the receiver; and that, after the explrwtlon ot five years after the passage of the ordinance of December 23. 1887, there was no agreement between the city of Dayton and the gas company, and that there was no ordinance In force affecting the price to be charged for gas by the gas company. These answers were demurred to, and stricken from the Illes, and the receiver restrained by order of the court from accepting more than 10 cents· per 1,000 cubic feet, which was to be credited upon the bills sent out, subject to and until turfiler order of the court. From this order of tlIe court enjoining the receiver from collecting more than 10 cents per 1,()()() cubic feet, the Manhattan Trust Company and the receiver bave appealed.
Wm. B. Richie, John A. McMahon, and Lawrence Maxwell, Jr., for appellants. Craighead & Conover, for appellees. Before TAFT and LURTON, Circuit and BEVERENB, District Judge. LURTON, Circuit Judge, after stating the facts, delivered the opinion of the court. The controversy involved on this appeal is as to the price to be charged the citizens of Dayton, Ohio, by the receiver of the natural gas company, and arises upon the intervening petition of of Dayton, the answers of the Manhattan Trust Company, and of the receiver. The contention of the receiver is that there is no agreement between the gas company and the city as to the price, and no ordi· nance in force regulating the price; that the price of 10 cents per 1,000 cubic feet is an absolutely inadequate price, and ruinous to the interests of the property committed to his management as receiver; and that the charge of 20 cents per 1,000 cubic feet, demanded by him, is reasonable and just. The city, on the other hand, insists that section 10 of the ordinance of March 28, 1889, is in force, and operates as a maximum upon the price of gas furnished consumers by meter measurement. The question turns upon the construction of the ordinances of the city of Dayton passed December 23, 1887, and March 28, 1889, viewed in the light of sections 2478 and 2479 of the Revised Statutes of Ohio. These sections read as follows: ' "Sec. 2478. The council of any city or village In which electric lighting companies, natural or artificial gas companies, or gas light or coke com. panies may be established, or Into which their wires, mains or plpee may be conQucted, are hereby empowered to regulate, from time to time, the prices which said electric lighting, natural or artificial gas, or gaa and coke com. panles, may charge for electric light, or for gas for lighting or fuel purposes, furnished by such companies to the citizens, public grounds and bulldlnga, streets, lanes, alleys, avenues, wharves and landing places; and such electric lighting, natural or artificial gas, or gas light alld coke companies, shall In no event charge more for any electric light, or natural or artificial gas, furnished to such corpora.tion or Indlviduala than the price &pec1fted b7
)'EI;>$RAL .RliJPORTER,
vol.; 59.
-P!:'4!'lip4nce'l;),fj!lnch connc!!: and such council shall also have p<)wer to regllla,teand flx the price which suchcOlnpanies shall charge for rent of their meters. "sec.2l79. Incase ,the council the- minimnmprice at which it requires any company to furnish gas to the citizens, or public buildings, or fpr the purpose Of lighting the streeta, alleys, avenues, wharves, landing placE-sand public grounds. for a period not exceeding ten years, and the company assents thereto by written acceptance, filed in the office of the of too corporation, it shall not be lawful for the council to require such Compllny to furnish gas at a less price during the period of time agreed on, not exceeding ten years, as aforesaid." ,"i
T1nderthe latter it was clearly within the power of the fix a minimum price at wllich it would require gas to be furnished fora period "not exceeding ten years." Upon the assent of thet!ompany, "by written acceptance filed in' the office of the clerk of the corporation," the act makes it unlawful for the council to i require gas to be furnished at a less price during the period of time agreed on, not exceeding 10 years. The price ordinance of December 23,1887, was a dear exercise of oflWntract. ,The ordinance was, in terms, limited 'to itperlOd of 5 years from and after 10 days after the date of its first publication, and therefore expired by its own limitation on the 10th of January, 1893. It follows, therefore, that if that is the oJily'pliceiordinancebearing upon this gas company, it has expired by its own terms, and there is now no agreement or ordinance regulating the 'charge to corisumers. Eutthe petitioner -insists that by section 10 of the ordinance of March 28,; 1889, a maximum rate is fixed for gas furnished by meter measuremen.t,and an option given consumers to require meter measurement. That section reads as follows:
"Ani consumer within sa:ld city shall have the right to require gas to be furnished by meter measurement, and not by the schedule rates; in cases where a meter is used, said, eompany shall have the right to charge and sum not exceeding ten cents per thousand cubic feet, if paid within ten, days, or twelve and one-half cents per thousand cubic feet, if not so Daid, for the gas' used. Such meter shall be furnished and set in place upon the application of any consumer, without cost to such consumer, by said company; but said company shall be entitled to charge a rent of three dollllfs,per year in advance therefor." If thisse'Gtion is to be construed as a regulation of the price for consumers under and by virtue of the power congas ferredby I!lection 2478, above cited, and is still in force as general legislation, .then the controversy is closed, and the receiver must comply "With an ordinance clearly within the power of the council to enact. So, if it is to be regarded as a limitation imposed' upon the license>authorizing the gas company to enter upon the public streets' of.' Dayton, and establish itself there as a gas company, it woqld valid legislative limitation upon the gas company so long' a,S it, ,remained unaltered or, unrepealed. With regard to this, section, the insistence of the learned counsel fOr appellants is, as set down in the brief: ,"',First: .It is pot a limitation upon the power of the company for the period Oct "twenty years.
lIANHATTAN TRUST CO. V. CITY OF DAYTON.
, '833
"Second. It is not a cohtract for that period, it being manifestly beyond the power ot council to enter into such contract; nor is it a contract. by construction for ten years, a period within its power. "Third. But it was a contract for the unexpired term ot five years from January 10, 1888, (when the price ordinance of December 23, 1887, took efl'ect), being, in efl'ect, an amendment of that ordinance."
We quite agree with counsel as to the second of these propositions. The ordinance of which section 10 is a part does not by any fair and reasonable construction purport to be an agreement under section 2479, Rev. St. Ohio, for a period of 20 years. An agreement for such a term would be ultra 'ires, and it is not to be lightly assumed that the legislative body of the city deliberately undertook to do a vain thing, expressly prohibited by the plain terms of the act giving it the right to make an agreement for a term not exceeding 10 years. Neither can it, by construction, be regarded as an agreement for the term of 10 years. Such· a construction could only be reached by the insertion of a term of limitation where none was inserted, or by substituting one term for another. That would be to make a contract for the parties. The section is not so worded as to enable the court to separate the lawful from the unlawful. The contract must stand or fall dependent upon the validity or invalidity of the ordinance as it was enacted. Trist v. Child, 21 Wall 441. In U. S. v. Reese, 92 U. S. 214, a like question arose. Congress had passed a statute punishing election officers who should refuse to allow any person lawfully entitled to do so the right to cast his vote in an election. The supreme court held that congress could only punish such denial when it was on account of race, color, or previous condition of servitude. "It was agreed," says Mr. Justice Miller, in the Trade-Mark Case, 100 U.S. 98, "that the general description of the ofl'ense included the more limited one, and that the section was valid where such 'was in fact the cause of denial. But the court said, through the chief justice: 'We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is constitutional, if there be any such, from that which is not. The proposed efl'ect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not there now. Each of the sections must stand as a Whole, or fall altogether. The language is plain. 'fhere is no room for construction, unless it be as to the efl'ect of the constitution. The question, then, to be determined, is whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only. * * · To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our {'Iuty.' If we should, in the case before us, undertake to make, by judicial ('onstruction, a law which congress did not make, it is quite probable we should do What, if the matter were now before that booy, it would be unwilling to do, namely, make a trade-mark law which is only partial in its operation, and which would complicate the rights which parties would hold, in some instances under the act of congress, and in others under state law."
Cooley, Const. Lim. 178, 179; Com. v. Hitchings, 5 Gray, 482. We cannot venture to say that an agreement for an indefinite time, or for 20 years,-a time beyond the power of the council,-is to be in either case as by construction an agreement for 10
it was within the power of the aounciUa have made for that time, or for any time short of that 'time. 1?-s to ftuestion coV'ered by Of #lvpellants, VIZ. that sectIOn 10 IS to be construed as an agreement fQr the unexpired term .of the contract as to price contained in the ordinance of December, 1887. This contentiouia- entbely meaning and legal effect of the provisio.ri .of Section 15 of the ordinance of March 28, 1889, in these , words: "?1:4:ers numbered as folIows shall have openings of the following diameter thrdugh them: ' No.3, 3-32 of an inch. No. :5, 4-32 of' an inch. ,No.7, 5-32 of an Inch. N9. 9, 6-32 of. an inch. "Mixers designated by.letters shall hue openings of the following diameterthrough them: ' Mixer A, 6-32 of an inch. MixerB. 7-32 of an inch. a, 8-32 of an Inch. Mixer D, 9-32 of an Inch. Mixer E, 10-32 of an Inah. Miixer F,· 11-32 of an inch. "ThethicknellS of metal tbJ.'()ugh which the outlet for gas fs made in the mixer, should not exceed ihree-sixteenths of an inch. Any of the above ,mixers shall ,be used wheIlrequired by persons wishing quantity of gas they twill supply. 'Inch meltsureJinents above refer to regulation sizes. The con. tract heretofoJ'e' madebetweeti the city and, this company, as to schedule Qf' pric.es" shall be in· full .force except /l.s, herein altered, and for the unexcontract, and all property rights heretofore acpired time Of !;laid qUired by this" preserved to it, except as modified herein,"
This cleariy has to the schedule of prices for gas supfound in the ordinance of December, 1887. The plied through cli.a,racter of that ordinance, it having been accepted by the gas cOqlPluiY,is recognized, and agreement is proposed to be revised,"except as herein altered, and for the unexpired term of said The words, "as herein altered," refer, as we think, to the alteration contained in this section. The old agreement conno regulation as· to the size of the openings in the mixers. This is remedied in this section by a definite provision as to the size / of the openings in each mixer referred to by number or letter in the old ordinance.' ' 15 contains,the only definite indication that anything This in this ordinance was intended as a contractual proposition. This proposition for an agreement is limited to the matter covered by the old agreement. This leaves section 10 to stand as a regulating provision' of legislative character, and not intended as a proposition un· der section 2419. The expression of a purpose to make an agreeme:t;lt, so far as there had been an agreement, and for the unexpired of that agreement; is an indication of the limits of the agreement intended by thent\w ordinance. '. !tis as much as to say that" far as there was an 'agreement,it shall be revived, Elubject to the as to.tp.esize of the in the mixers; but asnot within the old agreement thereshflll be no agree-
MICH:lGAN CENT.R. CO. 1'. HUEHN.
335
mentwhich is to stay our free hand as a legislative body." This is borne out by the fact that there is no limitation as to time contained in section 10, which provided a price when delivered through meters, or section 11, which refers to the use of gas by manufacturers. Why such particularity in limiting the agreement as to the delivery through mixers to the unexpired time of the old agreement, while neither of these sections contaJn any reference as to time? The only answer would be that the council intended to give to the new company all the privileges of the old, whose rights had been forfeited, and to make it an agreement just as broad as that it had had with the old company, but no broader. To constitute a valid proposition for an agreement, the council should have made a schedule for a distinct period of time, not exceeding 10 years. Such a proposition, when accepted, would constitute an agreement. But if it be for an indefinite time, or for a period beyond the time allowed by section 2479, it will be void as an agreement. Coke Co. v. Avondale, 43 Ohio St. 257, 1 N. E. 527; State v. Gas Co., 37 Ohio St. 45. The conclusion we reach is this: That section 10 is a legislative regulation of the price of gas delivered by meters, and a limitation upon the license granted this company, which must stand as a lawful regulation of price, under section 2478, Rev. St. Ohio, until altered, amended, or repealed by subsequent legislation. The receiver is as much bound by this public law as the company would be. The decree is therefore affirmed.
MICHIGAN CENT. R. CO. v. HUEHN et at. (Circuit Court, D. Indiana. January 22, '1894.) MUNICIPAL CORPORATIONS-PUBLIC bIPROYElIIENTS -NECESSITY FOR-PRELtlIII· NARY RESOLUTION-INJUNCTION. .
The Indiana statute providing that whenever it shall be deemed necessary to construct any public improvement the council shall declare by resolution the necessity therefor, and state the kind, size, location, and terminal points, and pUblish notice thereof for a specified time, must be complied with before the council can order the improvement made. The inere passage of an ordinance ordering the improvement, without the publication of such preliminary resolution, is not the equivalent thereof, and the making of the improvement will be enjoined.
In Equity. Bill by the Michigan Central Railroad Company .against Henry Huehn, Thomas W. Kinser, and William J. Kinser. Heard on motion for preliminary injunction. Granted. Winston & Meagher and J. B. Collins, for complainant. R. Gregory and Lamb & Beasley, for defendants. BAKER, District Judge, (orally.) It is thoroughly well settled in every tribunal administering justice according to the rnles of the common law that the proceedings of a municipal corporation ·clothed with power to act, if it has proceeded within the scope of