Gas-Light Company, and it was held by PARDEE C. J. that the law of 1874 did not authorize the consolidation of the two companies; that at the time of the consolidation the Crescent City Gas-Light Company was not an existing manufacturing corporation, and that the act did not apply to corporations created by the legislature and endowed with peculiar and exclusive franchises.

New Orleans Gas-Light Co. v. Louisiana L. & H. P. & Manuf. Co., 11 Fed. Rep. 277. Circuit Court, Louisiana (1882).

See STOCK OF GAS COMPANIES, 13; CONTRACT, 12.

CONSTITUTION OF UNITED STATES.

See CONTRACT, 9.

CONSTITUTIONALITY.

See CHARTER; MUNICIPALITY, 10.

CONTRACT:
I.

IN WRITING.

1. Injunction. Supply of Gas. Contract in Writing. — A company incorporated under provisions of stat. 16 Vict. c. 173, for supplying a city with gas, will be temporarily restrained, during the currency of a quarter, from cutting off the gas from a house, the occupant of which has paid the rent for the preceding quarter; but a special contract for continuing to supply the gas will not be binding on the company unless in writing under the corporate seal.

Smith v. London Gas Co., 7 Grant (U. C.), 112 (1859).

Supply of Gas.

- In an action to

2. Condition precedent. recover the amount alleged to be due for gas supplied the defendants under a contract by deed in which the plaintiff covenanted to supply gas-light for each lantern of the parish of Chelsea, to the satisfaction of the defendants or their surveyor, in certain manner and form set out in said deed, the defendants

pleaded that the plaintiff did not light said lanterns to the satisfaction of the defendants or their surveyor and did not perform the other covenants of the deed. On demurrer it was held that the defendants could not refuse to pay the bill for the reasons set forth in their plea, and that the performance of all the several stipulations by the plaintiff was not a condition precedent to their right to receive the money.

London Gas-Light Co. v. Vestry of Chelsea, 8 C. B. N. s. 215; 9 Gas. J. 292 (1860.)

See ASSUMPSIT, 1, 2, 3; DIRECTORS, 5, 7; SUPPLY of Gas.

II.

POWERS OF MUNICIPALITY TO CONTRACT.

3. Price of Gas. - Ultra Vires. - Powers of Trustees of Village. The plaintiffs, when about to erect their gas-works in the village of Elmira, obtained leave from the village trustees, who were the commissioners of highways, to lay gas-pipes under the village streets upon condition that the plaintiffs should furnish gas to the village at $2.50 per 1,000 feet. In an action to recover for gas furnished, it was held by PARKER J. that the contract was ultra vires on the part of the trustees, and that the plaintiffs could recover what the gas was worth, not being limited to the sum named; that the village has no proprietary interest in the streets, but holds them in trust for the benefit of the community, and has no power by contract to embarrass its legislative powers even for the sake of a benefit to itself.

Elmira Gas-Light Co. v. City of Elmira, 2 Albany, L. J. 392. New York Supreme Ct. (1870).

4. Action. Inability to pay.

No Defence to City.

In an

action against a municipal corporation for gas supplied by the plaintiff for the public lamps, it appeared that under their charter the city was not authorized to levy a tax above a certain amount unless the question was submitted to the voters; that all the taxes had been appropriated; that no petition had been presented requesting that a specific tax should be raised for lighting the streets; and that the plaintiffs were notified of these facts, and

it was held that the inability of the city to pay for the gas supplied under a contract made by competent authority and binding upon the city, cannot defeat an action therefor, and that the corporation cannot annul such a contract by notifying the other party that it cannot and will not pay the debt caused by carrying out the provisions of the contract.

Davenport Gas-Light & Coke Co. v. City of Davenport, 13 Iowa, 229. (1862.)

5. Frivolous Answer.

fence.

Exhaustion of Appropriation no DeIn an action against the defendant to recover the price of gas furnished it, the city filed an answer alleging that the gas furnished by the plaintiff was used by the Department of Parks, that the appropriation for that department had been exhausted, and that the debt had been incurred, if at all, by that department in excess of the amount appropriated; but it was held that these facts constituted no defence to the action and that the answer was frivolous.

New York Mutual Gas-Light Co. v. City of New York, 49 How. Pr. 227 (1875).

Injunction.

6. Philadelphia Gas-Works. Ordinance. City acting as Gas Company. - The Philadelphia gas-works were constructed by private individuals, and were afterwards taken possession of by the city, and the stock replaced by certificates of loan which were issued by the city to the stockholders, and the gas-works were held by trustees who were to have full control and management of said works, and were to create a sinking. fund to pay off the certificates and the interest on the loans. By a later ordinance a chief engineer of the gas-works was provided, who should be the head of the gas-department, and directing that all moneys received for gas should be paid to such officers as such engineer should designate. On the petition of the creditors an injunction was issued restraining the city of Philadelphia from attempting to take possession of the gas-works, or from interfering with the trustees in the control and management of the said works, and it was held that the contracts which a municipal corporation may make for the purpose of supplying the inhabi

tants with gas-light in their houses are made by such corporation in its capacity as a private corporation and not by virtue of its powers of local sovereignty, and cannot be impaired because it may deem it for the benefit of its citizens to do so.

Western Saving Fund Soc. of Philadelphia v. City of Philadelphia, 31 Pa. St. (7 Casey) 175 (1858).

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7. Act of Legislature cannot authorize Violation of Contract by Municipality. Where a municipal corporation enters into the business of manufacturing and selling gas, it acts as a private corporation and not as a local sovereign, and does not legislate, but contracts, and is as much bound by its engagements, as is a natural person, and the legislature has no power to authorize the city to violate its contracts, and the act of legislature authorizing the city of Philadelphia to elect additional trustees of the gas-works was held unconstitutional.

Western Saving Fund Soc. of Philadelphia v. City of Philadelphia, 31 Pa. St. (7 Casey) 185 (1858).

Damages.

8. Rescission. - Breach. A contract existed between the defendants and plaintiffs whereby the former were to furnish the city, at a stated price per month, gas-light for its streets, and the plaintiffs undertook to rescind this contract and, by a resolution of the common council approved by the mayor, declared said contract to be at an end, and notified the defendants of said action; and it was held that this was not a rescission of the contract, as the company had not assented, but only a breach for which the gas company in a proper action would be entitled to recover adequate damages.

Nebraska City v. Nebraska City Hy. Gas-Light & Coke Co., 9 Neb. 339 ; 2 N. W. Rep. 870.

9. Contract. Ordinances.

Philadelphia Gas-Works.

Injunction. City On a petition for an injunction forbidding the carrying out of a contract for the sale of coal to the trustees of the Philadelphia gas-works, on the ground that all contracts were required by the city ordinances to be made by advertisement and to the lowest bidders, it was held that the Philadelphia gas

works are not a department of the city government within the proviso of the act of May 13, 1856, and the city is only interested in them as a private owner, and injunction refused.

Hacker et al. v. City of Philadelphia, 6 Phila. 94 (1865).

Obligation of Contracts.

10. Constitution of United States. -The legislature of Louisiana, in incorporating a gas company in New Orleans, reserved in the charter a privilege to the city to purchase the gas-works and operate them at the expiration of the charter, and before that date incorporated a new company, giving it the sole and exclusive right to make gas in the city of New Orleans for fifty years, and it was held that they had the right to recall or withdraw their grant to the city, and that the act incorporating the new company was not void as impairing the obligation of any contract protected by the Constitution of the United States.

Crescent City Gas-Light Co. v. New Orleans Gas-Light Co., 27 La. Ann. 138 (1875).

- Illegal Provisions.

Defence.

Ultra Vires.

11. Contract. -Where contracts for supplying gas to a city contained illegal provisions respecting the exemption of the gas company's property from taxation, and the payment of money out of the sinking fund of the city devoted by law to another purpose, it was held that this would be no defence to an action for the price of gas supplied to the city under such contracts; that under their charter the city could contract for lighting the streets with gas, and could bind itself for the payment of the price agreed upon; and that the contract was not ultra vires; and that so long as the city voluntarily received gas-light under its provisions it could not resist payment because of the alleged illegal promises as to the particular fund from which the money should be drawn. Nebraska City v. Nebraska City Hydraulic Gas-Light & Coke Co., 9 Neb. 339 (1879).

Breach of Condition.

12. Forfeiture. Illegal Combination of Gas Companies. A city ordinance authorized the defendant, the Mutual Gas-Light Company, to lay pipes in its streets,

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