The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1914-06-19
SVLLABlJSES
of Some Appeal Cases Recent.
ly Decided by the State
Supreme Court.

Syllabuses in cases recently decided
4 by the state supreme court are as
follows:
City of Wheeling, VS.. the Natural
Gas Company of West Virginia,
Ohio county, decree reversed and en-
tered here. President Miller.
i. Consumers Of natural gas are
I not necessary parties to a bill by
4 gas company to enjoin alleged viola
ton of its franchise contract, and for
an accounting Of gas sold.
2. In such case Of alleged viola
ton of franchise ordinance the
remedies at law, by mandamus or by
enforcement of criminal ordinances
against consumers of gas for viola
tions thereof, are not as complete
and adequate as the remedy by in
junction and for specific execution, SO
as to justify denial of relief in
equity.
8. Where municipal charter
gives power and authority to open
and lay out, graduate, pave. and
otherwise improve streets, and gen
orally to ordain and enforce such
regulations respecting the same as
shall be proper for the health, in
terest or convenience of the inhabi-
tants Of said city, power is thereby
also implied to grant the use there
of to gas companies and other public
service corporations, but not the ex-
elusive use, and also the discretion
airy power to refuse such privileges,
and also to limit the same to par
ticular purpose not violative of some
statute, rule of law, OF rule of pub
lie policy.
4. Possessed OF such discretion
airy charter powers a municipality
in granting franchise may limit the
use of its streets, alleys and public
grounds to particular purpose,
without violating any rule of law or
rule of public policy.
5. A franchise ordinance given
natural gas company by munici-
pal corporation to use its streets, al
leys and public grounds for supply
ing natural gas for heating purposes,
and conditioning the same that gas
shall not be sold through the pipes
of such company for lighting pur-
poses in competition with gas man
ufactured by 1t. does not operate to
create a monopoly in favor of such
municipality in the manufacture and
sale of manufactured gas, inhibited
by any rule of law or rule of public
policy.
s. The rule appears to be differ
ent in those states where public ser
vice corporations derive power and
right to serve the public in a partic-
ular way, not from the municipality,
but from the constitutional or stat
utory law, and requiring only the
consent of the municipality to occupy
its streets, alleys and public grounds
for such purposes.
z. While rule of frequent APP
plication Is that when public SER
vice corporation accepts a fran
chise it accepts the same with the
burdens imposed and is estopped to
deny the validity of its conditions, yet
where, as in this state, limit to the
power of a municipality to attach
conditions is recognized, the attempt
to impose unlawful or invalid con
dttions is regarded as a mere nulli-
IT,. and II Invisible, the rule is to dis
regard the unlawful or invalid part,
leaving the remaining or unaf-
fected thereby
8. But IL public service corpor-
alton has accepted the provisions of
such franchise ordinance and by do
ing SO enjoyed benefits which would
not otherwise have been granted,
and has thereby assumed obligations
OF money or service, which it ought
not to escape, such liability will be
enforced, and 1t will be estopped to
deny the validity thereof.
8. Though municipal corpora
ton at the time it grants franchise
to natural gas company to serve
the public with natural gas for heat
ing purposes owns and operates a
plant for manufacturing gas for
lighting purposes, and thereby law
fully conditions its grant to the nat
ural gas company that gas shall not
be sold through the latter's pipes for
lighting purposes so as to compete
with gas manufactured by it, never
theless. If it afterwards grants to
electric lighting companies Franchise
es, and permits them to sell electrici-
ty for lighting purposes in competl-
ton with its gas, and knowingly and
actually permits citizens not reached
by Its pipes to use natural gas for
lighting purposes, and has suffered
its gas plant to become dilapidated.
and no longer manufactures gas
reasonably fit for lighting purposes.
and because of which others within
reach of its pipes discard and refuse
to use such gas. and without the con-
sent and against the protest and mo-
tice of the natural gas company they
make use of natural gas for lighting
purposes, court of equity will not,
upon principles enunciated In the
opinion, enjoin such natural gas com
pany from permitting such use of its
gas and require 1t to account in dam
ages to said municipality as for a
breach OF Its franchise and for the
gas so used for lighting purposes.
Hobbs ct al VS.. Hinton Foundry,