
    The East Ohio Gas Company v. The City of Akron.
    
      'Corporation for transporting gas — To certain named cities — Not bound to furnish gas to all cities — Along line of company— Municipality by ordinance allows company to' enter city — Ordinance constitutes contract — Rules of construction — Franchise indefinite as to time, not perpetual — Company may voluntarily withdraw, when — May be compelled to exercise franchise fairly, when.
    
    
      1. Where a corporation is formed “for the purpose of producing, purchasing and acquiring natural gas” and “of piping and transporting natural gas from .the place or places where it is produced, purchased or acquired” to certain named towns and cities situated in the counties along the line of said company and between the termini thereof, “and to other cities, villages and places in the counties aforesaid,” it is not one of the charter obligations of such corporation to furnish natural gas to consumers in all of such cities, towns and villages.
    2. When a municipal corporation, by ordinance, gives its consent that a' natural gas company may enter the municipality, lay down its pipes therein and furnish gas to consumers upon terms and conditions imposed by the ordinance, which are accepted in writing by said company, such action by both parties constitutes a contract and the rights of the parties thereunder are to be determined by the contract itself.
    3. While much regard will be given to the clear intention of the parties, yet where the contract is entirely silent as to a particular matter, the courts will exercise great caution not to include in the contract, by construction, something which was intended to be excluded.
    4. Where the contract between a municipal corporation and - an incorporated company is silent as to the duration of the franchise, such franchise is not perpetual but the duration thereof is simply indeterminate, existing only so long as the parties mutually agree thereto. The incorporated company may therefore voluntarily forfeit its right to exercise its privileges within the municipality and wholly withdraw therefrom; but in such case the municipality has no right to prevent the incorporated company from removing its property, nor to take possession of and make use of the same, nor to grant the right to use the same to another company, without due process of law.
    5. But so long as such gas company continues to exercise any of its franchises within the contracting municipality, it may be compelled to exercise its franchise therein fairly and without discrimination. Gas Light Co. v. Zanesville, 47 Ohio St., 35, approved and distinguished.
    (No. 11675
    Decided October 19, 1909.)
    Error to the Circuit Court of Summit county.
    It appears from the articles of incorporation and the amendments thereto that the plaintiff in error, The East Ohio Gas Company, was incorporated for the purpose of producing, purchasing and acquiring natural gas and transporting the same to certain towns and cities named therein, the defendant in error being one, and, “to other cities, towns and places in said counties.” It was provided in the articles of incorporation, as amended, that the main line of the said gas company should begin at points on the Ohio river in Belmont and Monroe counties and run thence through Belmont, Harrison, Tuscarawas, Stark, Summit and Cuyahoga counties to the city of Cleveland. Under its franchise to be a corporation. for such purpose, the plaintiff in error applied to the council of the city of Akron for its consent that the plaintiff in error should enter said city and lay down its mains and, pipes in the streets, lanes, alleys and public grounds thereof and connect with service pipes ff> the public buildings, street lamps, and private consumers. Consent therefor was given to the plaintiff in error by ordinance enacted by the council of the city of Akron on the 26th day of September, 1898, and the condition was attached, among others, that for the first five years the gas company should charge not exceeding twenty-five cents per thousand feet of gas, and for the next five years, not exceeding thirty cents per thousand feet, and it was provided therein that, “the council of said city of Akron shall not during the period of ten years from and after the passage of this ordinance pass any ordinance fixing or attempting to fix the rates at which gas shall be supplied at any lower price than these set forth.” The said ordinance was entirely silent as to the length of time during which the gas company might exercise the privilege thus granted. After the expiration of ten years from September 26, T898, the council of the city of Akron passed another ordinance fixing the price of gas to be furnished by the said . gas company at twenty cents a thousand feet and providing that, “the said company, its receivers, successors and assigns, shall not for the period of ten years from and after the taking effect of this ordinance charge .and receive for all gas so furnished, sold and delivered, a sum exceeding the rates hereinbefore set forth.” Meantime the said city council had granted to another gas company the privilege of laying pipes within its streets and furnishing gas to consumers. The plaintiff in error declined to accept the terms established in this second ordinance and signified its intention of discontinuing its business in the city of Akron and wholly withdrawing therefrom. Whereupon the city of Akron filed in the court of common pleas of Summit county its petition praying for an injunction against the gas company restraining it from “shutting off or withholding any natural gas from the said city, its buildings, streets, and other places named in the ordinance, and from any of its inhabitants or persons doing business therein, and their several buildings, or places of business or abode, from ceasing in any manner to supply and serve its said customers and patrons with natural gas, as they heretofore and hitherto have been served and supplied and from hindering or in any way interfering with any of the persons entitled .to such service as aforesaid from the full and unobstructed enjoyment and benefit thereof.” Issues were made up by the answer to this petition and reply thereto. On the hearing in the court' of common pleas the gas company was perpetually enjoined as prayed in the petition. The circuit court on appeal made a similar order against the gas company and the case is now brought here for review on oetition in error.
    
      Messrs. Kline, Tolies & Goff; Messrs. Tibbals, Frank & Ream and Messrs. Doyle & Lezvis, for plaintiff in error.
    That the city of Akron, after offering satisfactory inducements to The East Ohio Gas Company to come in, when it was under no obligation to do so, may take away all those inducements, and yet compel it to remain; that by coming in under favorable conditions, it waives all its rights to get away when the other contracting party destroys or impairs these very conditions, is an interpretation of the effect of accepting the terms of the ordinance of 1898 that surely ought not to prevail, unless some specific stipulation in the ordinance itself necessitates that interpretation. Gas Light Co. v. Zanesville, 47 Ohio St., 35.
    So long as one maintains the public use of the property he must submit to the public control. It is held that he has the right to withdraw his grant to the public by discontinuing the use. Attorney General v. Railway Co., 35 Wis., 425. This doctrine is approved in Madison v. Gas & Electric Co., 129 Wis., 249; Munn v. Illinois, 94 U. S., 113.
    The business of manufacturing and selling illuminating gas is not a prerogative of government, but, like the manufacture and sale of any other ordinary article or traffic, it is open to all, and may be carried on by any person without legislative authority. But the right to dig up streets and other public ways and place therein pipes and mains for the distribution of gas for public and private use, is a franchise, the privilege of exercising which can only be granted by the state or by a municipality or some other local agency acting under legislative authority. State, ex rel., v. Gas Light Co., 18 Ohio St., 291; Gas Light Co. v. Zanesville, 47 Ohio St., 35; Commonwealth v. Gas Light Co., 12 Allen, 75; McCune v. Gas Co., 30 Conn., 521.
    It is because of this public duty and the obligations that grow out of it to the community at large, that courts have laid down the doctrine that railroads must discharge' the obligations they have assumed, and yet the continuous performance of this duty is subject to exceptions even on the part of railroads. Railway Co. v. State, 90 Tex., 520, 59 Am. St., 834; State, ex rel., v. Power & Light Co., 22 Mont., 391.
    
      The city based its entire case upon the quasi-public character of the gas company and its business, and did not discuss the question from the standpoint of contract between the city and the gas company at all. On the other hand, the gas company claimed that no such obligation resulted from the public character of its business, and insisted that such an obligation could have been imposed only by contract entered into in one or more of three different ways:
    1. By a contract imposing the obligation, contained in its articles of incorporation or charter from the state.
    2. By a like contract with the city, contained in the ordinance of September 26, 1898; or
    3. By a statute or statutes of the state specifically imposing such a duty, thereby becoming a part of its contract either with the state or with the city, or both.
    It is conceded that no such statute ever existed in this state. The obligation therefore could not have been imposed by the third method stated.
    Our position is that the obligation cannot be placed upon the gas company by any consideration of the public character of the company or of its business, but that it must result from a contract to that effect, voluntarily entered into by it; that any attempt. to impose this obligation other than by contract, would be in clear violation of the constitutions of the state of Ohio and of the United States. 1 Page on Contracts, 21; Keener on Quasi-Contracts, 4; Marzettie v. Williams, 1 Barn. & Adol., 415; Wells v. Alexandre, 130 N. Y., 642; Lenz v. Railway Co., 111 Wis., 198; Braun v. 
      Hess, 187 Ill., 283; Mill Co. v. Goodnow, 4 L. R. A., 202; Canal Co. v. Coal Co., 8 Wall., 276; Maryland v. Railroad Co., 22 Wall., 105; Zorkowski v. Astor, 156 N. Y., 393; Churchward v. Queen, L. R., 1 Q. B., 173; Jones v. Newport News, etc., Co., 65 Fed. Rep., 736.
    We insist, that having never agreed with the city of Akron forever to furnish it natural gas under this ordinance, the gas company has now a right to retire wholly from said city, and the court has no power, by mandatory injunction, to compel it to remain therein. Neither does the fact that the gas company is a quasi-public corporation, clothed for certain purposes with the power of eminent domain and engaged in a business affected with a public interest, operate to add to this contract the obligation of perpetuity claimed by the city. The single fact that the business is public, or affected with a public interest, does not deprive the party whether a corporation or a natural person, engaged in carrying it on, of the right to go out of the business.
    When the legislation as to gas companies was enacted by the general assembly, natural gas had not been discovered and of course, was not a subject of either express legislation or included by any implication or rule of construction of the statutes. Gas & Fuel Co. v. Chillicothe, 65 Ohio St., 208.
    If there had been no legislation authorizing the city to fix the price, there would be obligation on the part of the gas company, at most, to furnish the gas at a reasonable price, so long as it used the streets for that purpose, which would be a matter between the consumer and the gas company, even if that consumer was the city. Railway Co. v. Bowling Green, 57 Ohio St., 336.
    But the general assembly by chapter 7, division 3, title 12, vested a power in the city council to fix the price, and a penalty to be incurred by the gas' company for non-compliance.
    It must be borne in mind that the right to use the streets of a city for the purpose of laying pipes therein, is a franchise, and must emanate directly or indirectly from the legislature; while the power of a city to make a contract for the' price, is the authorized exercise of power to contract. The city could not, under the- first, grant any exclusive right to the streets or enter into any arrangement that would prevent the exercise of the legislative power over the streets. Under the latter it can make a contract for ten years binding the city and all subsequent councils for the period. Gas & Fuel Co. v. Chillicothe, 65 Ohio St., 206.
    But the contention is, that because the gas company has a franchise by which it is granted a right to use the streets, it is bound forever to use them; because it has the right to- sell gas conveyed through the streets, it is bound forever to sell it, not because it has agreed to do so, but because it was given the privilege to use the streets for its- pipes, and because it agreed for ten years to furnish gas at a stipulated price.
    You can no more import words into a legislative grant, than into a contract, where the imported words will create a liability not clearly provided for.
    
      Our claim is that this legislation is to be construed exactly as' it would have been and was before natural gas companies were included in Section 2478, (Cincinnati v. Guckenberger, 60 Ohio St., 353), and that the contract-construed in the light of the statutes, means this: So long as the company uses the streets it will comply with the reasonable regulations fixed in the ordinance. Bruner v. Briggs, 39 Ohio St., 484; Woodbury & Co. v. Berry, 18 Ohio St., 462; Smith on Statutory Construction, 714; Maxwell on Interpretation of Statutes, Section 2.
    There is no term fixed, and no language which by any rule of construction fixes a term. The gas company is granted the right to use the streets and certain regulations adopted as to how they shall be used. It was entirely feasible and easy for the city, if it intended to. bind the gas company for a term of years, or perpetually, or so long as it had natural gas to sell, to say so. Words of common use could adequately express such intention, but no such words are used, and their absence in ordinary contracts would be conclusive. Light & Power Co. v. Gas Co., 69 Ohio St., 266; Gas & Fuel Co. v. Chillicothe, 65 Ohio St., 208.
    The right of the city to maintain this action, must be on its own right. Hence, it is only because it has a contract or individual right, that, like the Zanesville case, the remedy by injunction is allowed. Gas Light Co. v. Zanesville, 47 Ohio St., 50.
    There being no monopoly in the grant, there is no obligation to continue in the business. Not a single person in Akron, nor the city- itself, is under obligation to take any gas from the gas company. State, ex rel., v. Hamilton, 47 Ohio St., 53.
    The gas company agreed to take its chances and furnish all who would buy for ten years, but it did not agree that it would take its chances beyond that period, where any number of gas companies, and even the city itself, might become competitors, and the number of the patrons become reduced. So that fact becomes important in construing this contract. 6 Thompson on Corporations, Section 7826; 5 Thompson on Corporations, Section 6680; Railway Co. v. State,. 35 L. R. A., 662; Railway Co. v. Queen, 22 L. J., Q. B., 225; King v. Proprietors of Canal, 2 W. Black., 708; Railroad Co. v. Dustin, 142 U. S., 492; People v. Railroad Co., 104 N. Y., 58.
    The right of eminent domain may be conferred upon a corporation when the property taken is not devoted to public use, as that term is understood, but where the public welfare is promoted thereby. Nor does it follow at all, that because this right is conferred upon an individual or corporation, that either is to continue in the business forever. Lewis on Eminent Domain, Sections 1, 2, 162, 163, 164, 168; McQuillen v. Hatton, 42 Ohio St., 203.
    Toll roads, bridges, ferries, etc., are instances of this use, but no one ever supposed that the grantee must, because this power was granted, engage indefinitely in the maintenance of either. Young v. Buckingham, 5 Ohio, 485; Lewis on Eminent Domain, 175, 175a.
    
      
      Mr. Nicholas M. Greenberger, city solicitor; Mr. Jonathan Taylor, assistant city solicitor; Mr. C. R. Grant and Mr. G. M. Andersonfor defendant in error.
    The plaintiff company was permitted, under law, to assume a service to the people of the enumerated cities and villages, upon such footing as to compensation and regulation as might be agreed upon. It was at liberty not to seek or accept these burdens, with their co-relative benefits to itself, but having once taken the obligation it cannot relieve itself from its performance at its sole will and pleasure as to a part of the public whom it assumes to serve, while continuing its service to the'rest.
    More important than all else, it became invested with a part of the public sovereignty in the form of the power of eminent domain, and stood charged with all the duties and responsibilities of a common carrier as by law established. Section 3878, Revised Statutes.
    The ordinance of 1898 presented to the company a contract upon its face perpetual as to duration. As to the maintenance of rates to be charged for gas the limitation in point of time was ten years. At the time the statutes of Ohio conferred upon the council of the defendant certain powers regulative of such rates from time to time. Those statutes by force of law became part of the tendered contract and — together with future amendatory acts in that regard — were read into the contract as integral parts of itself.
    The charter of the plaintiff company is also perpetual in terms and in effect. The ordinance — once acted upon — is also irrevocable. Water Works Co. v. Kansas City, 65 Fed. Rep., 691; Cook on Corporations, 2309; People, ex rel., v. Deehan, 153 N. Y., 528; People v. O’Brien, 111 N. Y., 1.
    The city by the ordinance reserved to itself the right to avoid the franchise offered and resume its control of its streets; but the option to do this was that of the city and not of the plaintiff.
    The plaintiff company in written terms accepted the contract and thus made it binding and effectual.
    The city of Akron, therefore, is not undertaking, by the ordinance of 1908 or otherwise, to “withdraw, of its own motion, the very inducements which led the company temporarily to dedicate its property to a public use.” That ordinance withdraws nothing. If the price fixed by the first ordinance was one of the “inducements” in question, moving to the company, the equal right to fix another price conferred by statute and so made part of the contract, was one of the “inducements,” moving to the city to enter into the agreement at all.
    A marked infirmity of the plaintiff’s brief seems to us to be that it assumes the non-public character and function of the company, and the vice runs all through the pertinency of cases addressed to this assumption. We have already seen that the power of eminent domain has been in Ohio conferred upon the plaintiff, and it is believed that this consideration alone ought to be, and may be, the deciding circumstance which brings the company within the line marking off quasi-public corporations, — corporations clothed with this attribute of sovereignty and in return taking upon themselves" correlative public duties which they may not abandon at pleasure. 2 Beach on Private Corporations, Section 835; Cook on Stock and Stockholders, Section 674; Gas Co. v. State, ex rel., 135 Ind., 54; Kincaid v. Gas Co., 124 Ind., 577; Munn v. Illinois, 94 U. S., 113; Zanesville v. Gas Light Co., 47 Ohio St., 1; Hockett v. State, 105 Ind., 250; State v. Gas Co., 34 Ohio St., 572; Gas Co. v. Light Co., 115 U. S., 650; People v. Gas Light Co., 45 Barb., 136; Gibbs v. Gas Co., 130 U. S., 396; Williams v. Gas Co., 52 Mich., 499; Gas Light Co. v. Richardson, 63 Barb., 437.
    And the duty which a public service corporation like the defendant owes to the rmblic cannot be abandoned by contract or by am agreement. Gas Light Co. v. Gas Light Co., 121 Ill., 530; People v. Gas Trust Co., 130 Ill., 268, 20 N. E. Rep., 798; Railway Co. v. Mining Co., 68 Ill., 498; Hayes v. Railroad Co., 61 Ill., 422; Thomas v. Railroad Co., 101 U. S., 71, 25 L. C. P., 950.
    The cases are numerous and the principle is well established that a public corporation cannot divest itself of or shirk a public duty by any contract whatever. Gas Light Co. v. Gas Light Co., 2 Am. St. Rep., 131; Gibbs v. Gas Co., 130 U. S., 396, 32 L. C. P., 979; Shepard v. Gas Light Co., 6 Wis., 539; 1 Page on Contracts, Section 447; Telegraph Co. v. Griswold, 37 Ohio St., 310.
    If then, a corporation to which the public have delegated a part of their sovereignty in the shape of the-power of eminent domain, in consideration of the corporation discharging the public functions for which end it was created, may not even by solemn contract be relieved of the debt and duty it thus owes to the public, shall it be said that it may by mere declaration of its own evade its obligation to the public? More, — while still retaining its power of eminent domain, with the right to exercise it at will, may it thus keep the consideration with one hand and avoid the corresponding duty with the other?
    The significant words of the court in the case of Attorney General v. Railroad Cos., 35 Wis., 425, which are really a quotation from the opinion in Munn v. Illinois, 94 U. S., 113, are not to be lost sight of: “But so long as he maintains the use, he must submit to the control.”
    This does not mean that he lop off the use by sections and claim a corresponding immunity from control. The language of the syllabus in Munn v. Illinois is: “When private property is devoted to a public use, it is subject to public regulation.”
    Concerning the argument of the plaintiff’s brief that its right to occupy the street “is a franchise, the privilege of which can only be granted by the state or by a municipality or some other local agency acting under legislative authority,” we desire to say, it is true that the franchise comes from the state, but the act of the local authorities who represent the state, by its permission and for the purpose, constitute the act upon which the law operates to create the franchise.
    It is the acceptance of tlie option which completes the contract. Morristown v. Telephone Co., 115 Fed. Rep., 304; Allegheny v. Gas & Pipeage Co., 172 Pa. St., 632.
    
      As to the power of a quasi-public corporation to abandon its obligation of service, or an integral part of it:
    The grant of a right to supply gas to a municipality is the grant of a franchise, in consideration of the performance of a public service. Gas Co. v. Light Co., 115 U. S., 650; Gas Co. v. Gas Co., 115 U. S., 6.83.
    Contracts whereby corporations disable themselves from the performance of their charter duties are void as against public policy. Thomas v. Railroad Co., 101 U. S., 83; Railroad Co. v. Winans, 58 U. S., 30; State v. Railroad Co., 29 Conn., 538.
    A charter is granted to a quasi-public corporation in contemplation of the anticipated benefit to the public from the completion of the entire work, or the performance of the whole service authorized, and the corporation is without power to abandon either in part. Cohen v. Wilkinson, 1 Mac. & G., 481, 12 Beav., 125, 18 L. J. Ch., 378, 13 Jur., 641.
    A quasi-public corporation cannot alienate its property without the express consent of the legislature. Gibbs v. Gas Co., 130 U. S., 396; Gas Co. v. Sims, 43 Am. St. Rep., 105, 37 Pac. Rep., 1042; Gas Light Co. v. Gas Co., 35 Am. St. Rep., 385; Gas Light Co. v. Gas Light Co., 2 Am. St. Rep. 124; St. Louis v. Gas Light Co., 5 Mo. App. 484; Stanton v. Allen, 5 Denio, 435.
    A grant of a public franchise is a contract between the state and the grantee, by which the latter undertakes to perform certain public duties, from the performance of which he cannot withdraw or release himself without the consent of the other contracting party. Transportation Co. v. Car Co., 
      139 U. S., 24; Railroad Co. v. Brown, 17 Wall., 445; Black v. Canal Co., 22 N. J. Eq., 130; Railroad Co. v. Winans, 17 How., 30; Kenton County Court v. Turnpike Co., 10 Bush, 529; Commonwealth v. Smith, 10 Allen, 448; Thomas v. Railroad Co., 101 U. S., 83.
    A corporation cannot contract away a part of its franchise duty. Ferry Co. v. Railroad Co., 5 Mo. App., 347.
    The charter of a gas company is a contract between itself and the state granting it, and it cannot be impaired by the state or the agents of the state. Gas Co. v. Light Co., 115 U. S., 650; Gas Co. v. Gas Co., 115 U. S., 683; Gas Light Co. v. Des Moines, 72 Fed. Rep., 829.
    A corporation accepting a grant subject to the powers reserved to the legislature, must be held, to have assented to such reservation. Gas Light Co. v. Hamilton, 146 U. S., 258; 14 Am. & Eng. Ency. Law, (2 ed.), 922.
    A railroad company may be made to operate a portion of its line which it has ceased to use and has undertaken to abandon; and mandamus is a proper remedy in'such case. Railroad Co. v. Hall, 91 U. S., 343; State v. Railroad Co., 29 Conn., 538.
    In the case of an attempted abandonment of its charter duties by a corporation, the state may advance the remedy by mandamus, by indictment or by proceedings to annul the corporation, at the election of the state, the corporation owing a duty to the public to exercise the franchise granted to it in its entirety. People v. Railroad Co., 24 N. Y., 261.
    
      And it cannot abandon a part of its public duties and thus incur a forfeiture at its will and pleasure.
    The state may enjoin a railroad from taking up its tracks, and prevent its attempt to avoid its charter duty to the public. State, ex rel., v. Railroad Co., 36 Pac. Rep., 747; State v. Railroad Co., 7 Neb. 357; People v. Railroad Co., 10 N. E. Rep., 657; Railroad Co. v. Railroad Co., 63 Me., 269; Railway Co. v. Mining Co., 68 Ill., 489; Gates v. Railroad Co., 53 Conn., 333.
    Mandamus will lie to compel a street railway company to maintain its road for the performance of a service due to its patrons. State, ex rel., v. Traction Co., 43 Atl. Rep., 715; State, ex rel., v. Railway Co., 53 Pac. Rep., 719; People v. Railroad Co., 10 N. E. Rep., 657; Electric Co. v. Tacoma, 50 Pac. Rep., 592; Belleville v. Railway Co., 38 N. E. Rep., 584; Pierce v. Emery, 32 N. H., 504.
    The right of the plaintiff to compel the defendant to perform the franchise duty is upheld in Ohio by Gas Light Co. v. Zanesville, 47 Ohio St., 35.
    As to the inprofitableness of a contract relieving from its performance, see Marble Co. v. Ripley, 10 Wall., 961; Fry on Specific Performance, 116.
    As to whether a corporation dissolves itself by defeating the end for which it was created, see Town v. Bank, 2 Douglas (Mich.), 530.
    For a general discussion of the rights- and obligations of the parties, see Dillon on Municipal Corporations, 691-697.
   Davis, J.

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

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

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

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

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

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

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

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

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

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

Judgment reversed and judgment for plaintiff in error.

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