The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1892-01-14
Judge Melvin and Mr.. Riley Give
Their Opinion. rs
NATURAL GAS SUBCOMMITTEE
Hears 1t Isead.-.Tho Company WIN
Not Promise Not to Raise the Price
Of Natural Cause.-The Manager
Thinks Suit ut Law Would Benefit
Neither Party.

on the legal status occupied by tho city
in the pending discussion with tho Ma
tural Gas Company OF West Virginia.
Chairman Farrell, DR.. Caddle and
Messrs. Jefferson and Hall werc present,
besides Mr.. George Heard, general
manager OF the company, and Mr..
George b. Caldwell OF its counsel.
Oh mo;ion, Mcssrs. Heard and Caldwell
were allowed to remain, while MIR. Riley
read the opinion, prepared by Judge
Melvin and himself, as follows:
WHEELING, W. Va, Jan. 10, 1892.
r, j. Farrei, Esq, Chairman, ETC.
DEAN Sin: In response to tho request
OF your committee 10: IN opinion as 10
tho proper construction and effect. OF
such portions OF the ordinance OF April
II, 1885. MS are involved in tho present
controversy between the city and the
Natural Gas Company OF West Vir-
ginia, we respectfully submit the fol-
lowing:
BY tho FIRST section permission is
granted to said company to lay pipes
inard under tho streets, alcyl and
public grounds OF the city OF Wheeling
for the purpose OF conducting natural
gas for heating purposes" This privi-
lcge is by another section declared 10 DO
sole and exclusive. By section 6 the
company, in consideration OF such
grant, is required to furnish, free OF
cost TO said city, for heating purposes,
at any public building, school or works,
near which such company shall lay its
pipes, all gas which shall'be consumed
at such building, school or works, by
the officers, agents or employees OF the
city, which such company agrees TO do
by accepting this ordinance, and for
other good and valuable considerations. ;"
And by section 8 it is declared that the
company shall not be entitled to the
benefits, rights and privileges by this
ordinance granted unless it shall,
before the 18th day OF May, 1885, file
with the city clerk copy OF resolution
passed by its board OF directors accept
ing this ordinance, agreeing to furnish
gas to the city as stated in the sixth Sec
ton" Such a resolution, it appears, was
duly adopted by the board, and copy
furnished the city; and the company
proceeded within the time prescribed to
lay its pipes and to bring gas into the
city; and has, until recently, without
objection, furnished gas to the public
buildings, schools and works, free OF
cost. 1t is understood that it now as
serts that for different reasons the stip-
ulntion requiring it to furnish gas to the
city is imperative.
its acceptance by the company consti-
tute valid contract between it and the
city; and this, Notwithstanding the sug-
gestion that tho latter possessed no au-
thority to make the grant exclusive.
Whatever may have been the extent OF
the authority OF the Cou neil in this re-
spect, the grant was effective to such
extent. The right to use the streets
and alleys in the manner indicated GER
tainly is conferred; and this alone
would bar the claim that the agreement
was without consideration and there
fore void. Besides, assuming want OF
power, this was known to the company
at the time it applied for and received
the grant and made the stipulation. At
all events, such knowledge is to be pre-
sumed; and the company would hardly
BIO permitted by the courts to avail it.
self OF any Misunderstanding OF the law.
1t seems some claim is made by the
company based on subsequent ordin-
ance comforting on the Manufacturers
Gas company the right to use the
streets and alleys IN similar manner.
This action OF the Council, We should
say, is warranted by the seventh sec
ton OF the ordinance OF April II, 1885
which reserves the right to confer such
privilege on any association OF persons,
firms or corporations engaged in man
ufacturing, and desiring to lay and
maintain pipes for conducting gas to
and for the use OF their manufactures.
Still later, in July, 1856, there was a
similar grant to the Citizens Gas COM
pany. We have not been able to find
the certificate OF incorporation OF this
company, and do not know whether it
was made up OF manufacturers. Tho
contrary is, perhaps, to DO inferred;
and it would seem that sales to manu-
facturcrs were contemplated 1t is not
| tiOurht lihp tillo OlullluIlCc WiS -WslE-
ranted by the reservation alluded to;
but as nothing, SO far as we are ad-
vised, has ever been done or attempted
by this company in the way OF using
any street or alley, it probably does
not figure largely, or at all, in the pres
cnt controversy.
AS to the assize OF gas, it is not seen
that in any aspect the action OF the
council prescribing regulations rs Ito
price OF gas to be supplied to consul
mers generally, would or could affect
the rights or obligations OF the parties
under the contract. There is
nothing in the ordnance OF April
II, 1885, that expressly or by impli-
cation makes the obligations assumed
by the company dependent on the fail
ure OF the Council to interfere in this
behalf. But it is further 10 be said
that tho last mentioned ordinance was
short-livcd. Its repeal, before any OF
its provisions were carried into effect,
placed the contracting parties in their
former position towards each other, and
relieved against any possible disadvan-
tage that otherwise might have resulted.
Ii it were to be conceded that bv
reason OF supposed unfricndly action by
the Council the company mas some
claim or grievance against the city, the
remedy is not understood to consist in
declaring the contract imperative and
refusing to comply with stipulations
therein contained. IMPARTIAL failure OF
the consideration for which the COM
pany agreed TO furnish gas would not
abrogatc such agreement. 1t would
still be the duty OF tho company, rs We
think, 10 comply with its provisions,
and to look for relief TO the Council or