
    The Logan Natural Gas & Fuel Co. v. City of Chillicothe.
    
      Power of municipal authorities to regulate price of gas — Cannot compel company to accept ordinance, when — Sections 2478, 21/79, and 2485, Rev. Stat. — Price fixed by city council for ten years — Cannot be altered except by consent of company — Section 2485, Rev. Stat., does not apply to natural gas companies — Ordinance passed by council and accepted by company is valid:, when — Municipal law — Ordinance not restricted by Sec. 1691, Rev. Slat.
    
    1. A city council has no power under Revised Statutes, Sections 2478 and 2479, to compel a gas company, without its assent to the ordinance, to furnish gas in a manner and at a rate entirely at the option of the consumer.
    2. When an ordinance regulating the price of gas under Revised Statutes, Sections 2478 and 2479, provides that it shall he in force and take effect from and after its passage and legal promulgation, and also provides that the gas company shall be entitled to charge at a certain rate for ten years from a date later than the date of the passage and legal promulgation of the ordinance, such provision, when accepted in writing by the gas company, is valid and binding for the period of ten. years from the date so named. Such ordinance is not restricted by Section 1691.
    3. Revised Statutes, Section 2485, does not apply to natural gas companies.
    4. When a city council, proceding under Revised Statutes, Sections 2478 and 2479, has fixed the price of gas according to one standard, and the same has been duly accepted by the company, it cannot be altered without the consent of the company within ten years by fixing another standard which may affect the limit or price previously fixed.
    (Decided November 19, 1901.)
    Error to the Circuit Court of Ross county.
    On February 11,1895, the city of Chillicothe passed an ordinance granting a franchise to the Logan Natural Gas & Fuel Company and providing that said ordinance should be in force and take effect from and after its passage and legal promulgation. Section second of the said ordinance provided that the said company, its successors or assigns, shall for a period of ten years from the first day of September, 1895, be entitled to charge for such natural gas furnished not to exceed the sum of twentyjfive cents per thousand cubic feet. There was no provision in said ordinance for a “flat” rate which is a fixed price per month for each fire. Very little gas was sold by meter measurement, most of the consumers taking gas at flat rates by contracts between said company and individual consumers. In September, 1900, the gas company announced an advance in the price of gas as furnished by the flat rates, and thereupon on September 18, 1900, the city council passed an ordinance seeking to compel the gas company to continue to furnish gas at the flat rates which it established when it began business in the city of Chillicothe and had continued up to the time of the beginning of the controversy. The gas company refused to obey the ordinance of September 18,1900, and this action was begun by the city of Chillicothe» by its city solicitor against the Logan Natural Gas & Fuel Company seeking a mandatory-injunction requiring the gas company to furnish natural gas to all persons who are ready, able and willing to pay for the same in accordance with the prices fixed by the ordinance of September 18, 1900, so long as it may continue in the business of furnishing natural gas to the citizens and public buildings of said city, and that it be restrained from collecting from those who have signed written contracts, more than the price fixed in said ordinance.
    The court of common pleas granted a perpetual injunction, and on appeal the circuit court entered a decree in favor'of the city. This petition in error is filed to reverse that judgment.
    
      Lawrence T. Neal, for plaintiff in error.
    The validity of a municipal ordinance is not affected by the fact that either the whole or any part of it is to take ¡effect at some future day.
    The power to enact a law necessarily includes the right of the law-making power to determine when, and upon what conditions, it shall go into operation. 23 Am. and Eng. Ency. Law (1 ed.), 233; Sutherland Stat. Constr., Secs. 71, 107; Blanding v. Burr, 13 Cal., 357; People v. Salomon, 51 Illinois, 37; Stone v. Charlestown, 114 Mass., 214; 23 Am. & Eng. Ency. Law (1 ed.), 223.
    The same principle applies to ordinances passes 1 by municipal corporations. The test-writers and the courts in the reported cases make no distinction in its application between statutes and ordinances, and apply it indiscriminately to the whole, or any part or section of a statute or ordinance. 1 Dillon on Municipal Corporations (4 ed.), Sec. 309; Mayor v. Clunet, 23 Maryland, 450; Rushville v. Gas Company, 132 Indiana, 575; Hensly v. Hamilton, 2 Circ. Dec. 114; 3 C. C. R., 201; Moore v. Given, 39 Ohio St., 661.
    It is, however, immaterial, so far as our case is concerned, whether the true construction of section 1691 is as we claim it should be, or not. If it be construed, as we insist it must be, it will be conceded that it cannot have the effect to invalidate the second section of the ordinance of February 11, 1895; and if- it be construed contrary to the interpretation that we give to it, the conclusive answer to the contention of the city is, that its provisions can have no application to contracts of the character of the one in controversy, because the power of council to make such contracts is derived from section 2479 of the Revised Statutes.
    It is perfectly apparent that the provisions of section 1691 and the provisions of section 2479, which latter relate peculiarly and exclusively to the subject matter of the second section of the ordinance of February 11, 1895, cannot both apply to the case, if section 1691 is to be considered as expressing a legislative intention incompatible with that assigned to it by us; and it follows, as a necessary sequence from this, that the provisions of section 2479 must be read as an exception to the provisions of section 1691.
    The universal rule for the construction of statutes is that when general and specific provisions, either in the same statute or in different statutes, are in conflict, the general provisions do not control or override the specific provisions, but the specific provisions are to be read as exceptions to the general provisions and held to supersede them. 23 Am. & Eng. Encv. Law (1 ed.), 426.
    The principle has been approved and applied by this court in many cases. State v. McGregor, 44 Ohio St., 628; Caldwell v. Carthage, 49 Ohio St., 334; Cincinnati v. Holmes, 56 Ohio St., 104; Hoey v. Gilroy, 129 New York, 132.
    The doctrine of ultra vires is regarded by the courts as “an ungracious and odious one” at best; and, where, as in this instance, the exercise of the alleged excess of power by the city is merely incidental to the principal matter of agreement between it and the company, which is strictly within the limit of the legitimate power of each of them, is not immoral, does not violate any statute expressly forbidding it, and is not illegal, the settled rule is that the entire transaction,- except as to the part which is ultra vires, will be sustained. No good reason can be advanced why, upon principle, this rule is not a just and wise one. The courts in this way enforce that part of the contract, which is intra vires, and reject that part of it,, which is ultra vires.
    
    When it is remembered that the words “ultra vires'v and “illegality” represent totally different and distinct ideas, that a contract or transaction that is ultra vires is, as a general thing, far from being either illegal or wrong, or in any manner contrary to public policy, and that the question in each case is only as to the competency and power of a corporation to make the contract, and not as to the legality of the contract, it will readily be seen that this rule is based upon sound and just principles.
    The enforcement of a contract, which is in part ultra vires, in so far as it is within the power of a corporation to make it, leaving the parties without a remedy as to the part of it which, is in excess of such power, and no more, must certainly fulfill every requirement of the law, as there is a well-defined distinction between this and the recognition by the courts of a contract that is void, because it is wholly ultra vires.
    
    The following cases, among others, are illustrative of the principle and its application: Somers v. Cincinnati, 6 Dec. (Re.) 887; 8 Am. L. Rec. 612; Toledo v. Gas Co., 3 Circ. Dec., 273; 5 C. C. R., 557.
    This court has, on different occasions, sustained the identical principle, which, we contend, is applicable to this case. The principle was recognized and applied in Knox County (Comrs.) Nichols, 14 Ohio St., 260, where the commissioners, in addition to doing what they were authorized by statute to do, in the matter of issuing bonds for railroad purposes, did something that they were not authorized to do. Smartle v. Penhallow, 2 Lord Raymond, 1000; State v. Board of Ed., 35 Ohio St., 519; State v. Gas Co., 37 Ohio St., 45; Lougee v. State, 11 Ohio, 68.
    This ease was affirmed and followed, at the same term of the court, in Bonsal v. State, 11 Ohio, 72, and in Brown v. State, 11 Ohio, 276, and afterwards in Montgomery v. State, 7 Ohio St., 107; Eldora v. Burlingame, 62 Iowa, 32; Harbaugh v. Monmouth, 74 Illinois, 367; Greenfield v. Mook, 12 Ill. App., 281; McPherson v. Foster, 43 Iowa, 48.
    The doctrine established by this case is adopted by the Supreme Court of Michigan in Stockdale v. School District, 47 Mich., 226; Grand Gulf Bank v. Archer, 8 Smedes & Marshall’s Reports (Miss.), 152; Culbertson v. Fulton, 127 Ill., 30; Wellston v. Morgan, 59 Ohio St., 147.
    The rule as to ultra vires as stated by this court, is, “that where a contract has been executed and fully performed, on the part either of the corporation or the other contracting party, neither will be permitted to insist that the contract and such performance by one party were not within the corporate power of the company.” Hays v. Gas Co., 29 Ohio St., 330; Hydraulic Co. v. Railway Co., 29 Ohio St., 341; Larwell v. Savings Fund Society, 40 Ohio St., 274; Armstrong v. Karshner, 47 Ohio St., 276; Whitney Arms Co. v. Barlow, 63 New York, 62; Railway Co. v. McCarthy, 96 U. S., 258; National Bank v. Mathews, 98 U. S., 621; 2 Morawetz on Corporations (2 ed.), Secs. 689 to 699; Sedgwick on Stat. & Const. Construction, 73; Cable Company v. Baltimore, 66 Fed. Rep., 140; Bank v. Arkansas City, 76 Fed. Rep., 271; Gas Company v. San Francisco, 9 Cal., 453.
    
      The following cases are to the same effect and will, upon examination, he found directly in point upon the question. Pike’s Peak Power Co. v. Colorado Springs, 105 Fed. Rep., 1; Lloyd v. Mayor of New York, 5 New York, 369; Valparaiso v. Gardner, 97 Ind., 1, 4; Vincennes v. Gas Light Co., 132 Ind., 114; Touchard v. Touchard, 5 Cal., 306; Argenti v. San Francisco, 16 Cal., 256; Cincinnati v. Cameron, 33 Ohio St., 336; Searcy v. Yarnell, 14 Am. & Eng. Corp. Cas., 523; s. c. 47 Ark., 269
    It may he stated as the general rule, that the plea, of ultra vires will not be allowed to prevail in any .case, whether interposed for or against a corporation, municipal or otherwise,-when it will not advance justice, but will, on the contrary, accomplish a legal wrong. 2 Morawetz on Corporations, Sec. 693; Manufacturing Company v. East Portland, 18 Oregon, 21: Schipper v. Aurora, 121 Ind., 154; Wright v. Hughes, 119 Ind., 324; Bass Works v. Commissioners, 115 Ind., 234; Kadish v. B. & L. Association, 151 Ill., 531; Bank v. Elevator Co., 90 Mich., 550; Lewis v. Saving Association, 98 Wis., 224; Holmes v. Metal Company, 127 New York, 252.
    The passage of the ordinance of September 18, 1900, was a repudiation by the city of its contract made with the company by the ordinance of February 11, 1895, and an attempt upon its part to declare a forfeiture of that contract, after it and its inhabitants had received and enjoyed the benefits of said contract for five years, at the expense of the company, which had expended more than $300,000 in performing the conditions of the contract to be performed by it; and a court of equity will not, under such circumstances, inquire whether the contract was ultra vires or not.
    
      This is an equitable action, and the city does not come into court with clean hands. It is a fundamental principle of equity that “he who comes into equity must come with clean hands.” Then, too, another principle of equity is that “he who seeks equity must do equity.” And here the city, in violation of both these principles, not only seeks equitable relief, but asks relief of a kind that courts of equity will never grant, — the enforcement of a forfeiture. We say enforcement of a forfeiture, because this is the practical effect of a decree enjoining the company from charging more for gas than is authorized to be charged by the ordinance of September 18,1900, and from charging for gas what it is authorized to charge by the second section of the ordinance of February 11, 1895. Pugh v. Electric Light Co., 10 Circ. Dec., 573; 19 C. C. R., 594.
    The principle established by this decision is sustained and applied in the case of Mayor of Macon v. Huff, 62 Georgia, 221.
    Again, while these provisions of the ordinance of September 18, 1900, are so unreasonable as to render it void, it is subject to another objection that is to our mind equally fatal to its validity. The city by the second section of this ordinance delegates to each individual consumer of gas the. power to determine for himself, — that is within certain prescribed limits-the price to be paid for it; and this, the city cannot legally do. A municipal corporation is not authorized to delegate to individuals the power given to it by the statute to regulate the prices to be charged for gas. The power thus vested in council is a discretionary one, and it is an unlawful exercise of such power to delegate it to any party or person, even though he may be an officer of the city itself, much less to an individual whose interests are directly opposed to the interests of the company from which Ms supply of gas is to be purchased.
    The rule, that power conferred upon a municipal corporation by the statute or its charter, as the case may be, which requires the exercise of judgment and discretion, cannot be delegated by it, is fully settled by authority. 1 Dillon on Municipal Corp. (4 ed.), Sec. 96; Gas Light Co. v. Minneapolis, 36 Minnesota, 159; East St. Louis v. Wehrung, 50 Ill., 28; Franke v. Water Supply Co., 88 Ky., 467.
    
      John O. Entrehin and John W. Goldsherry, for plaintiff in error.
    The ordinance of February 11,1895, when accepted by the gas company constituted a contract and was binding upon both the company and the city, and fixed, for a period of ten years, the minimum price at which said gas company was required to furnish gas to said city and the citizens thereof. And under and by virtue of it said gas company acquired vested rights which could not be taken away or impaired by any subsequent action of said city, without the consent of said gas company. Section 2479, Rev. Stat., State v. Gas Co., 37 Ohio St., 45; Indianapolis v. Gas Trust Co., 140 Ind., 107; Beach Modern Law Contracts, Secs. 1143 and 1198 note; State ex rel. v. Gas Light & Coke Co., 18 Ohio St., 262; State v. Gas Light Co., 102 Mo., 472; Lima Gas Co. v. City of Lima, 2 Circ. Dec., 396; 4 C. C. R., 22; 14 Am. & Eng. Enc. Law (2 ed.), 927.
    . Regard must always be had to the effect and real object in view.
    • An ordinance is not invalid because some of its provisions are to take effect in the future and upon a contingency. Rushville v. Natural Gas Co., 132 Ind., 575.
    The city is not exempted from the common obligation to do justice, which binds individuals. Such obligations rest upon all persons, whether natural or artificial.
    Corporations, as much as individuals, are bound to good faith and fair dealing, and the rule is well settled that they cannot by their acts, representatives, or silence, involve others in onerous engagements, and then turn around and disavow their acts, and defeat the just expectations which their own conduct has superinduced. Railroad Co. v. Howard, 74 U. S. (7 Wall.), 392; Pine Grove Twp. v. Talcott, 86 U. S. (19 Wall.) 666; National Bank v. Matthews, 98 U. S., 621.
    The plea ultra vires, as a general rule, will not prevail, whether interposed for or against a corporation, when it will not advance justice, but, on the contrary, will accomplish a legal wrong. It is now very well settled that a corporation cannot avail itself of the defense of ultra vires when the contract has been in good faith fully performed by the other party, and the corporation has had the full benefit of the performance of its contract. Whitney Arms Co. v. Barlow, 63 N. Y., 62.
    The rule seems to be well established that where a contract has been executed and fully performed on the part, either of the corporation or of the other contracting party, neither will be permitted to insist that the contract and such performance by one party were not within the corporate power of the company. Hays v. Coal Co., 29 Ohio St., 330; Street Ry. Co. v. Carthage, 9 Circ. Dec., 833; 18 C. C. R., 216; Bank of Chillicothe v. Chillicothe, 7 Ohio (pt. 2), 31; 
      Bank v. Flour Co., 41 Ohio St., 552; State v. Board of Ed., 5 Circ. Dec., 447; 11 C. C. R. 41, 45; Piemental v. San Francisco, 21 Cal., 352; Railroad Co. v. Commissioners, 48 Kan., 70; 30 Am. St. Rep., 273.
    
      Ultra vires prevails in full force only where the contracts or corporations of this character remain wholly executory, and this rule prevails, even to public or municipal corporations in analogous cases. Thompson v. Lambert, 44 Iowa, 239; State v. Van Horn, 7 Ohio St., 327; State v. Union Township, 8 Ohio St., 394; Goshen Township v. Railroad Co., 12 Ohio St., 624; Knox Co. (Comrs.) v. Nichols, 14 Ohio St., 260; State v. Goshen Twp., 569; Railroad Co. v. Marion Co., 36 Mo., 294; Allegheny City v. McClurkan, 14 Pa. St., 83; Bennington v. Park, 50 Vt., 178; East St. Louis v. Gaslight Co., 98 Ill., 415; Houfe v. Fulton, 34 Wis., 608; Kneeland v. Gilman, 24 Wis., 39; Argenti v. San Francisco, 16 Cal., 256; Lamb v. Railroad Co., 39 Iowa, 333; Railroad Co. v. Chatham, 42 Conn., 465.
    ' Whenever a state, county, corporation, partnership, or person, has power originally to do a particular thing, it also has the power to ratify and make valid an attempted effort to do such a thing, although the same may have been done ever so defectively, informally, and even fraudulently, in the first instance. East St. Louis v. Gaslight Co., 98 Ill., 415; San Francisco Gas Co. v. San Francisco, 9 Cal., 469; Hitchcock v. Galveston, 96 U. S., 341; State v. Mitchell, 31 Ohio St., 592.
    The parties to this contract agreed that it should be for a term of ten years, and the court is now asked to find that it was either for a period of more than ten years or less than ten years, that is, to make a new contract for the parties, and to declare such new contract ultra vires. Natural Gas & Fuel Co. v. Dairy Co., 60 Ohio St., 96.
    The ordinance passed by the city on September 18, 1900, and which it is endeavoring to enforce in this action is unreasonable and void, because it compels the gas company to furnish gas to the consumer at a “mixer” or “flat rate,” upon the demand of the consumer.
    
      M. A. Daugherty, for plaintiff in error.
    First. It is highly important first to determine just what legal relation arose between the city and the gas company, from the passage of the ordinance of February 11, 1895, granting the franchise and fixing the minimum' price for the period of ten years and the written acceptance of its provisions by the. company.
    Read and considered in the light of Secs. 2478 and 2479 of the Revised Statutes a contractual relation was established and both parties are bound by the contract thus created. Gas Light & Coke Co. v. State, 18 Ohio St., 237; State v. Gas Company, 37 Ohio St., 45; Lima Gas Co. v. Lima, 2 Circ. Dec., 396; 4 C. C. R., 22; Toledo v. Gas Co., 3 Circ. Dec., 273; 5 C. C. R., 558; Clark on Contracts, page 645.
    This section 1691 does not require complete performance or performance to any extent during the term for which all the members of the council are elected as essential to the validity of its contracts; the only requirement is that the council shall not enter into any contract which is not to go into full operation during such term.
    The operation of a contract must be distinguished from its performance. The former is determined by its obligations; the latter accomplishes their die-, charge.
    There is not and cannot be a moment of time from entering into the agreement until its final performance that it is pot in full operation. Lancaster v. Miller, 58 Ohio St., 558.
    The doctrine of mutuality of right and mutuality of remedy relating to the specific performance of contracts as stated by Pomeroy, has met the clear and distinct approval of the Supreme Court of Ohio in the case of Steinau v. Gas Company, 48 Ohio St., 324; Tiffin v. Shawhan, 43 Ohio St., 178.
    
      James A. Cahill, City Solicitor, Wallace D. Yaple, Seymour Cunningham and John P. Phillips, for de-. fendant in error.
    Our claim is that under section 1777 it is the duty of the city solicitor to apply, in the name of the city, for the specific performance of an obligation creating a' public duty, which is being evaded or violated.
    In this case, from the enactment of the ordinance of September 18, 1900, there resulted an obligation creating a public duty, viz: to furnish gas to the citizens in the manner and at the prices therein set forth (flat rate, Zanesville v. Gas Light Co., 47 Ohio St., 1) ; ' and that the refusal of the plaintiff in error to comply with its terms was an evasion and violation within the meaning of this section. Gas Light Co. v. Zanesville, 47 Ohio St., 35.
    It is claimed by the plaintiff in error that the solicitor had no right to bring this action in the name of the city for the reason that the ordinance of September 18, 1900, was never accepted by the gas company.
    The ordinance under which the case of Gas Light Co. v. Zanesville, 47 Ohio St., 35, was brought, was an ordinance similar to the one on which this action is founded, and was never accepted by the gas company.
    Should the contention of the plaintiff in error, that an action to compel a gas company to furnish gas at' prices prescribed by ordinance could not be brought by the solicitor in the name of the city, unless the terms of the ordinance have been accepted by the company, be the correct construction, then the company could prevent any right of action arising on such an ordinance by simply neglecting or refusing to accept the terms thereof.
    If the city has not the right to bring this action in its own name, an action could not be maintained by a taxpayer in his own name, and consequently no one would have a right of action. Knorr v. Miller, 3 Circ. Dec., 297; 5 C. C. R., 609; Toledo v. Gas Co., 3 Circ. Dec., 273; 5 C. C. R., 557.
    The city council has had the power to regulate the prices to be charged for natural gas delegated to it by the legislature, by Sections 2478 and 2479 of the Revised Statutes, they being the first two sections of the chapter of the Revised Statutes, relative to gas and other companies; that this power to regulate exists in the legislature and may be delegated to municipal corporations, cannot be questioned by the plaintiff in error. Munn v. Illinois, 94 U. S., 113.
    The legislature of Ohio has seen fit to delegate this power to regulate to municipal corporations by the enactment of section 2478.
    Plaintiff in error claims that the ordinance of September 18,1900, should not regulate it for two alleged reasons:
    (a) Because the so-called “flat rate” provided for therein — which is a certain specific price per month for each fire — is unjust and unreasonable.
    
      (b) Because council had exercised its right to regulate for the period of ten years when it passed the ordinance of February 11, 1895, providing, among other things, as follows:
    As to the first proposition, that the provisions of the ordinance of September 18, 1900, are unjust and unreasonable:
    (a) The question as to whether the “flat rate” is reasonable or unjust is a question of fact to be determined by all the evidence and circumstances of the case.
    It is alleged in the petition and admitted by the plaintiff in error that the prices fixed by said ordinance are practically the same as the company has been charging for five years, or ever since it has been in the business of furnishing gas to the citizens of Chillicothe.
    Surely the plaintiff in error can not in good faith claim that a rate is unreasonable and unjust which it has itself employed and enforced in this city for so long a time without a change, unless conditions have changed so materially without the fault of the company, that gas could no longer be furnished at such rates at a profit.
    The so-called “flat rate” for natural gas does not differ from the rates of so much per arc light for public or private lighting, nor the rates of so much per post for gas lights for street lighting, about which there can be no question that a city council has the right to impose.
    The ordinance of the city of Zanesville, provided for both a meter rate to individuals and a “flat rate” of so much per lamp post for street lighting, ánd it was really the right to make the latter regulation that caused the litigation in that case.
    
      As to the second proposition, that council, having regulated the price for a fixed period by the ordinance of February 11, 1895, is precluded from changing it within that period.
    (b) Assuming, for the sake of argument, that the attempted regulation in the ordinance of February 11, 1895, was lawful, in so far as it fixes meter rates, it does not necessarily follow that the city council is precluded from fixing a “flat rate,” such as is fixed in the ordinance of September 18,1900, for the reason that the language of section 2 of the ordinance of February 11, 1895, plainly implies that other than meter rates were contemplated; the language referred to is as follows: “And when the said gas is furnished by meters the rent or price of said meter shall not exceed,” etc.
    This language implies that gas may be furnished in other ways, and it is an admitted fact that gas may be furnished in other ways, and it is an admitted fact that gas was furnished almost exclusively by the “flat rate” from the start, for which there was never any regulation of price until council passed the ordinance of September 18, 1900.
    If the city council had no power the effect would be that the gas company, after having a rate established for it by one method, could then arbitrarily inflict another and entirely different one on the people.
    The ordinance of February 11, 1895, in so far as it attempts to regulate the price of natural gas for the time fixed therein is in contravention of section 2479 of the Revised Statutes, and therefore absolutely void.
    Our claim in regard to this question is, that municipal corporations have no powers, except those which are delegated in express words, or which are necessarily implied, and that the power to regulate the price of gas for a period of years granted by Sec. 2479, Rev. Stat., must be strictly construed. Beach on Public Corporations, Sec. 538; Dillon on Municipal Corporations (3 ed.), Sec. 89; Ravenna v. Pennsylvania Co., 45 Ohio St., 118; Electric Light Co. v. Electric Light Co., 3 Circ. Dec., 168; 5 C. C. R., 340; Western College v. Cleveland, 12 Ohio St., 375; Cleveland v. Bank, 16 Ohio St., 236; Holder v. Yonkers (N. Y.), 1 Mun. Corp. Cases, 164; Wellston v. Morgan, 59 Ohio St., 147; Ottawa v. Carey, 108 U. S., 110; Lewis v. Shreveport, 108 U. S., 282; Minturn v. Larue, 64 U. S. (23 How.), 435, Dawson v. Waterworks Co., 2 Mun. Corp. Cases, 73 (Georgia).
    Many other cases, state and federal, might be cited to show that this doctrine is the settled law. Dillon Mun. Corp. (3 ed.), Sec. 89.
    This doctrine is well established in Ohio. Ravenna v. Penn. Co., 45 Ohio St., 118.
    In regard to the application of this well established principle to the case at bar, we claim that:—
    (a) In the enactment of section 2479 of the Revised Statutes, the legislature conferred on city councils a power which they did not theretofore possess, viz: — To fix the minimum price of gas for a period of time not exceeding ten years.
    
    (b) That in attempting to execute this power by the enactment of the ordinance of February 1.1, 1895, the city council of the city of Chillicothe exceeded its powers, when it fixed the price for a period of ten years, said ten year period to begin September 1, 1895.
    
    The council in passing the ordinance of February 11, 1895, plainly exceeded its authority, and its act in that respect is void, for a period of ten years and six months would elapse before any council could again regulate the price.
    To hold otherwise would be to construe this section to mean that a city council could pass an ordinance to regulate the price of gas for the period of ten years, the period to begin six months or sixty months in the future, in the discretion of the council. It would plainly be a violation of this section for council to pass an ordinance regulating the price for a period to begin five or ten years in the future. How then can a court draw a line defining just how far in the future a city council may go in fixing the beginning of the ten year term?
    If council has the power to make such a regulation, the term thereof to begin six months in the future, it is not delegated to it in express words by section 2479 of the Revised Statutes, neither is it necessarily implied, in accordance with the rule laid down in Ravenna v. Pennsylvania Co., supra.
    
    It would certainly border on the ridiculous to claim that the right to make the ten year term in a gas contract begin six months in the future is “essential to the very life of the corporation,” yet that would be, in effect, the construction placed on the law should the plaintiff in error prevail in this case.
    If there is a doubt that council possessed the power to cause the ten year period to begin six months in the future, then that doubt must be resolved against the corporation and in favor of the public. Goblet Co. v. Findlay, 3 Circ. Dec., 205; 5 C. C. R., 418.
    By the same course of reasoning section 2485 of the Revised Statutes must apply, and this is undoubtedly the correct construction of the intermediate sections between 2478 and 2491 — the whole chapter applies to one as well as the other. Gas Light & Coke Co. v. Avondale, 43 Ohio St., 257.
    The city is not now estopped from setting up its lack of power to pass the ordinance of February 11, 1895. Dawson v. Dawson Waterworks Co. (Ga.), 2 Mun. Corp. Cases, 73, and notes.
    The doctrine of estoppel does not apply to municipal corporations as to business corporations. Beach on Modern Law of Contracts. Section 1139. •
    The rule is that relinquishment of the power of governmental control is never to be presumed but must clearly appear, or the construction most favorable to the public will be adopted. Providence Bank v. Billings, 29 U. S. (4 Pet.), 514; Ravenna v. Pennsylvania Co., 45 Ohio St., 118; Ruggles v. Illinois, 108 U. S., 526.
    Section 2479 of the Revised Statutes, grants the power to contract away for ten years the right to public control and should therefore be so construed as best to guard the public interest.
    We do not see the logic of the argument that we are attempting to enforce a forfeiture. A forfeiture presupposes a right. If there was no valid contract under section 2479 of the Revised Statutes, or if estoppel does not in effect confer a right, there can be no question of forfeiture in the case. We have argued the question as to the validity of the contract under section 2479, Revised Statutes, contending that it was illegal and ultra vires.
    
    The remaining question is, does the doctrine of estoppel assist the company?
    1. Should this court hold with our contention that the contract made was illegal because prohibited by section 1691 of the Revised Statutes, or other laws it will not be seriously contended that, by either ratifieation or estoppel- it can be made effective to prevent subsequent action of the city council.
    2. But should the court hold the contract not illegal but merely in excess of council’s powers, does the doctrine of ratification or estoppel invoked by plaintiff assist it?
    Ratification has no effect, for the contract can be ratified only upon conditions essential to a valid agreement in the first place. Gutta Percha Mfg. Co. v. Ogalalla, 42 Am. St. Rep., 696; Tiedeman on Municipal Law, Sec. 170; Beach, Secs. 1161, 1162.
    Nor can it be validated by estoppel. Ultra vires contracts of a municipal corporation cannot be validated by estoppel. Young v. Board of Ed., 40 Am. St., 340; Nashville v. Sutherland & Co., 36 Am. St., 88; Haines on Modern Law of Municipal Securities, Sec. 24; The rule and reason are given in Syracuse Water Co. v. Syracuse, 5 L. R. A., 546; Cleveland v. Bank, 16 Ohio St., 236.
   Davis, J.

It is insisted by the counsel for the defendant in error that the ordinance.which was passed February 11, 1895, and accepted in writing by the plaintiff in error, is void because it contravenes sections 1691, 2478, 2479 and 2485 of the Revised Statutes; and that therefore the city council might lawfully enact the ordinance of September 18, 1900. If this were so -it would not follow that this latter ordinance is valid. The power conferred on the council of any city or village by sections 2478 and 2479 is the power to fix the maximum price at which the company may sell gas. This is the obvious meaning and intent of these sections when read together. It is true that section 2479 contains these words; “In case the council fixes the minimum price,” etc.; but it is clear from the preceding section that the purpose of the legislature was not to prevent a gas company from selling gas as low as it might, but to protect the public from the hardships of excessive charge, and therefore the council is authorized to fix the limit above which the gas company cannot go. We may apply here the rule of statutory construction that “when the real design of the legislature in ordaining a statute, although it be not precisely expressed, is yet plainly perceivable, or ascertained with reasonable certainty, the language of the statute must be given such a construction as will carry that design into effect, even though in so doing the exact letter of the law be sacrificed, or although the construction be, indeed, contrary to the latter.” Endlich on Statutes, section 295; Sutherland on Statutes, section 323. It is also provided that if the gas company assents to such limitation in writing it then becomes a binding obligation on both the city and the company for ten years and no more. This is the extent of the authority granted to the council, and no other or different power is either expressed or implied. When, therefore, the council undertakes, even in the absence of a prior ordinance, to compel the gas company without its consent to furnish gas in a manner and at a rate entirely at the option of the consumer, it not only transcends the power conferred by the legislature, but it also undertakes to seize private property without due process of law. The decree of the circuit court was, therefore, erroneous in granting a mandatory injunction against the plaintiff in error, in accordance with the prayer of the defendant in error, enforcing the ordinance of September 18, 1900, although the company had not only refused to assent thereto, but had utterly repudiated it and challenged the right of council to enact it.

But is it a just contention that the original ordinance, that of February 11, 1895, which was assented to by the company, is invalid? We think that it is not. It is argued that this ordinance is within the inhibition of section 1691 of the Revised Statutes, which provides that “the council shall not enter into any contract which is not to go into full operation during the term for which all the members of such council are elected.” The context, Revised Statutes, section 1690, shows that the contracts referred to in section 1691 are contracts for “services performed, and supplies furnished for the corporation.” It is also apparent that in regard to contracts with gas companies, or rather ordinances regulating the price of gas, it is “otherwise provided in other divisions of this title,” namely, in Revised Statutes, section 2479. This objection to the ordinance may, therefore, be dismissed without further consideration.

It is also urged with great earnestness that section 2 of the ordinance of February 11, 1895, violates Revised Statutes, section 2479, because it provides “That said company, its successors and assigns, shall for a period of ten years from the first day of September, 1895, be entitled to charge,” etc. It is argued that inasmuch as the ordinance was passed February 11, 1895, and by its own terms was in force and took effect from and after its passage and legal promulgation, the provision of section 2 of the ordinance was in effect a fixing of the price of gas for a period exceeding, ten years, and therefore ultra vires. This argument proceeds upon the assumption that the period of ten years must begin to run on the date at which the ordinance was passed and went into effect. Upon this premise it is contended that the price of gas is fixed by that ordinance for a period beginning on February 11, 1895, and extending to ten years from September 1, 1895, and hence is invalid. But this assumption is not only opposed to the express language of the ordinance which provides for a period of ten years beginning on September 1,1895, and ending September 1, 1905; but it ignores settled rules of statutory construction, first, the legislative intent, as already shown, when it can be ascertained with reasonable certainty, must prevail, and, second, there is no legal objection to different provisions of the same statute taking effect at different times at the will of the legislature. Plummer v. J ones, 84 Me., 58; Stone v. Charlestown, 114 Mass., 214; Workman v. Worcester, 118 Mass., 168; Rushville v. Rushville Natural Gas Co., 132 Ind., 575; Sutherland on Statutes, section 107. It is the manifest intention of the council which passed this ordinance to fix the price of gas for the period of ten years only, beginning on September 1, 1895, and since the council might legally prescribe that section 2 should take effect at a later date than the passage of the ordinance, we find no just reason for holding that such section is in any manner in conflict with Revised Statutes, section 2479.

It is also urged that the ordinance of February 1J, 1895, is invalid because it does not reserve the right to purchase the gas plant and its appurtenances during the existence of the contract, as required by Revised Statutes, section 2485. When we take into consideration the history of this, section and its language, it seems to us very clear that it applies only to the purchase of gas works, for the manufacture and supply of artificial gas. It was enacted long before natural gas became an article of commerce and included only gas works for the manufacture and supply of such gas as was then used for illuminating purposes. It has not been amended and it therefore cannot.be presumed that the legislative intention has been enlarged. Counsel for the defendant in error seem to think it difficult to explain why the section of the Revised Statutes now under consideration does not apply to natural gas contracts while it is insisted Revised Statutes, section 2479, does so apply. The explanation is that section 2479 is plainly a limitation on the general power conferred in section 2478, which has been amended so as to expressly include natural gas companies.

It has been suggested by counsel for the defendant in error that if section 2 of the ordinance of February 11, 1895, is valid at all, it is only valid in respect to meter rates and that it did not exhaust the power of the council, under section 2478, to fix “flat rates” or non-meter rates. This theory ignores the fact that the power of the council is to regulate the price only of gas furnished and that when that has been done according to one standard, and accepted, it cannot be altered without the consent of the company within ten years by fixing another standard which may affect the limit of price previously fixed.

The conclusion, therefore, is that the ordinance of February 11, 1895, is valid and that the ordinance of September 18, 1900, is invalid, unless accepted in writing by the company.

The judgment of the circuit court will, therefore, be reversed, and speaking for myself only I think that, logically, we should stop there; but an order will be made that the plaintiff in error shall have the option to accept or reject the ordinance passed September 18, 1900, and if it elects to furnish gas at “flat rates” it must do so according to tbe provisions, of tbe ordinance of September 18, 1.900, and that the company be enjoined from hereafter exacting contracts for “flat-rates” from consumers of gas, or enforcing such contracts hereafter made, except in accordance with the ordinance of September 18, 1900.

Reversed.

Burket, Spear and Shauck, JJ., concur.

Minshall, C. J., not sitting.  