Virginia City Gas Co. v. Mayor of Virginia

Opinion by Lewis, J., Johnson, J., concurring in judgment; Beatty, C. J., dissenting. The plaintiff is a corporation organized under an Act of the Legislature of the Territory of Nevada, entitled “ An Act to create the Virginia City Gas Company,” approved November 28th, a.d. 1861. The second section of this Act grants to the plaintiff the exclusive privilege of supplying the City of Virginia, its inhabitants and residents, with illuminating gas for the period of ten years from the approval of the Act. The third section authorizes it to erect all necessary buildings, works and machinery, also to make the neces — 322 — sary excavations in the public streets for the purpose of laying gas pipes therein. The law also made it the duty of the plaintiff to complete all the necessary works for the manufacture of such illuminating gas by the first day of June, a.d. 1864, and the sixth and last section of the Act declares that “ It shall be compulsory on said company to provide said city, or cities, with sufficient gas to supply five burners for the public streets for the first year ; for the second year sufficient gas to supply ten burners ; and for each year thereafter sufficient gas for fifteen burners, the lamp burners and lamp posts to be provided by the proper authorities.” As to the preparation for furnishing the gas, the plaintiff seems to have complied with the law ; at least there is nothing in the record showing a failure to do so. This action was instituted on the twelfth day of May, a.d. 1866, for the purpose of recovering the sum of four thousand eighty-three dollars and thirty-three cents, claimed to be due from the City of Virginia for illuminating gas furnished by the plaintiff between the eighteenth day of December, a.d. 1864, and the eleventh day of May, a.d. 1866. The defendants admit that the gas was furnished by the plaintiff, as alleged in its complaint, hut as a defense it is claimed the law makes it the duty of the plaintiff to furnish such gas free of charge ; that no more was furnished than the law made it its duty to furnish, and hence that it is not entitled to recover. The Judge below found, as matter of fact, that from the eighteenth day of December, a.d. 1864, up to the eleventh day of May, a.d. 1866, the plaintiff furnished the City of Virginia two hundred and seventy-seven thousand two hundred feet of gas, which was reasonably worth the sum of four thousand one hundred and fifty-eight dollars ; that during the first year, that is, from the eighteenth day of December, a.d. 1864, to the eighteenth day of December, a.d. 1865, the plaintiff furnished the City two hundred and one thousand six hundred feet, which was one hundred thousand and eight hundred feet in excess of what the laiv required the plaintiff to furnish ; that this excess was reasonably worth the sum of one thousand five hundred and twelve dollars, for which judgment was given against the defendant. The Court also held that the plaintiff was not • entitled to recover — 323 — any compensation for the amount of gas which the law made it its duty to furnish to the city. Both parties appeal from the judgment, the plaintiff claiming that it should have had judgment for the value of all the gas furnished to the City; vrhilst counsel for defendant insists that only the amount required by law has been furnished to the City, which, it is urged, the law makes it the duty of plaintiff to furnish free of charge. Whether such be the requirement of the law is the question now to be determined. Unless we can imply a promise on the part of defendant, founded upon sufficient consideration, to pay for the gas furnished to it, there can be no pretense on the part of the plaintiff to a right of recovery, because it seems to be conceded that no express contract has ever been entered into between the parties. Can such contract be created by implication ? Clearly not. It will be observed that See. 6 of the Act under which the plaintiff was organized makes it compulsory upon it to furnish the City of Virginia with a certain quantity of gas during the entire period of its franchise. Nothing is said in the Act about payment for the gas so furnished.. That in granting franchises it is perfectly proper and within the power of the Legislature to impose duties upon those to whom they are granted, and to attach conditions to such privileges, is undoubted. As in this case it was doubtless within the power of the Legislature to make it the duty of the plaintiff to furnish the City of Virginia with a certain quantity of gas, as a condition upon which it should enjoy its franchise, and in our opinion such is the construction to be placed upon the Act under consideration. A contract is defined to be an agreement of two or more persons upon sufficient consideration to do or not to do a particular thing. The existence of such agreement is either established by the proof of an express engagement between the respective parties, or by circumstances from which the law will presume a promise or agreement. Hence the distinction between implied contracts and express contracts, which lies not in the nature of the undertaking, but only in the mode of proof. No express promise by the defendant to pay for the gas furnished to them is proven in this case, but .it is claimed the law will imply such promise fiom the acceptance of the — 324 — gas by them. Had not the law made it compulsory upon the plaintiff to supply the city with gas, a promise to pay a fair consideration for it would doubtless be implied from the circumstances presented in this case. But the Act of the Legislature has destroyed the possibility of such implication. By making it the absolute, unconditional duty of the plaintiff to furnish the defendant with a certain amount of illuminating gas, a promise on the part of the defendant to pay the plaintiff for performing such duty imposed upon it by the Legislature could not properly be implied. The plaintiff was not induced to furnish the gas to the city of Virginia' by any promise or act on the part of the defendant, but by the mandate of the Legislature, which is absolute and unconditional. The contract, if it may be so called, is between the plaintiff and the State, by which, in consideration of the privileges granted by the Legislature» it is made the duty of the plaintiff to furnish the city with a certain amount of gas. The city of Virginia was not a party in anyway to that contract though it was beneficially interested in it. It is like a contract between two individuals for the benefit of ■ a third. Thus A, in consideration for some privilege or profit derived from B, agrees to do some act for the benefit of C, who is not a party to the transaction. Though C may acquire advantage or profit from such contract, it will hardly be claimed that he would be holden upon an implied promise to pay a consideration for the profit so acquired by him. In such case the act of A would be induced by his contract with B; hence a promise by C to pay for any advantages he might acquire from it could not very well be implied. - Such is certainly this case. The State grants to the plaintiff valuable privileges, and in the grant it is made compulsory upon it to do certain things which are for the benefit of the city of Virginia. The natural presumption is that the Legislature imposed that duty on the plaintiff in consideration for the franchise granted to it. But it is urged that the intention of the Legislature was simply to require the plaintiff to furnish the city with a certain quantity of illuminating gas provided the city paid for it; or rather, that it should give the city the same privileges given to individuals generally. If that were the object of the Legislature it succeeded unusually well in concealing it from the reader of the Act. The language of the — 325 — law makes it compulsory upon the plaintiff to furnish a certain amount of gas to the city, and that absolutely and not upon any condition. There is no proviso that none shall be furnished if the city*does not pay for it. If payment by the city was contemplated, the Legislature would doubtless have left it within the power of the plaintiff to refuse furnishing the gas, if the city refused to pay for it. Instead of that, however, it is made compulsory on the plaintiff absolutely to furnish it for the period of ten years. The duty imposed upon the plaintiff is absolute, and there is nothing in the Act which will justify this Couft in making the act to be done by it dependent upon a condition. If the construction placed upon the sixth section of the Act by counsel for plaintiff be correct, it accomplishes nothing whatever; for it is to be presumed the plaintiff would, if profitable to itself, furnish the defendant with whatever gas it might need, -without any legislative Act compelling it to do so. And if payment by the,city were a condition -upon which it is to be furnished, then it is clear the plaintiff could impose upon the city an exorbitant charge, and if not paid, could refuse to furnish the gas. Thus it would, after all, be placed in the power of the plaintiff to furnish the city with gas or not as it might choose, and so the sixth section of the Act in question would give the city of Virginia no advantage whatever, and' would practically amount to nothing. Unquestionably the incorporation of section six into the Act^ was for some beneficial object; but if the construction of counsel for the plaintiff be accepted, we must conclude either that the Legislature had no object whatever in adopting that section, or that it totally failed in making it known. It is the duty of Courts, if possible, to place upon the Acts of the Legislature such construction as will give them beneficial and practical effect, rather than to nullify or make them of no practical utility by an unnatural interpretation of the language. We conclude it was the object of the Legislature to compel the plaintiff to supply the quantity of gas mentioned in the Act to the city of Virginia, free of charge ; and the gas having been furnished to the defendant in compliance with a duty imposed by the Legislature, on promise by the defendant to pay for any advantage it might have acquired by the performance of such duty can be implied, nor indeed would .the per-: — 326 — formance of such duty be sufficient to support even an express promise by the city. The next question to be determined is whether the plaintiff furnished the city with any quantity of gas in excess of that which the law made it incumbent on it to furnish. If so, it is entitled to recover from the defendant its fair value. The Judge below finds that over one hundred thousand feet were so furnished, and that such excess was reasonably worth the sum of fifteen hundred and twelve dollars. In arriving at this conclusion the Judge assumed that the first year, (during which time the plaintiff was required to furnish gas sufficient for five burners) commenced on the eighteenth day of December, a.d. 1864. That was probably the time when the plaintiff began to supply the gas to the city. Though the works for the manufacture of the gas are required to be finished by the first day of June, a.d. 1864, yet np exact day is fixed when the gas should be furnished to the city. It is evident all the works necessary for manufacturing it might be completed by the first day of June, whilst by reason of the pipes not being laid through the city, it could not be supplied for some time afterwards. The laying of the pipes through the city cannot be considered a part of the ivories for the manifactura of gas. Hence, after the first of June, when the works were required to be completed, the plaintiff had a reasonable period of time within which to lay the pipes necessary to supply the city. When an act is required to be done, and no time is fixed, the law requires it to be done within a reasonable time, all the circumstances being considered. From the first of June to the eighteenth of December may not have been unreasonable time to allow the plaintiff to lay its necessary pipes. On the eighteenth day of December, a.d. 1864, then the first year commenced. During that year the law only required the plaintiff to supply five burners for the city, whilst the Court finds that it furnished ten. So double the quantity which the law made it the duty of the plaintiff to supply was furnished during the first year, and the Court below finds the excess thus furnished was reasonably worth the sum of fifteen hundred and twelve dollars. The judgment being in accordance with the findings, must be affirmed. Costs here must be equally divided between the parties. — 327 — By Johnson, J. * I think it apparent, upon a consideration of the Legislative Acts under which plaintiff claims its charter privileges, that it is compelled to furnish Virginia City with illuminating gas free of charge, to the extent, for the time, and for the uses specified in section six of the Act referred to. The privileges accorded to this company, of supplying Virginia City and its inhabitants with illuminating gas, are contained in section two; whereas section six -makes it compulsory on the company to provide the city with sufficient gas for use on the public streets; for the first year to supply five, the second year ten, and each succeeding year thereafter, during the existence of the charter, for fifteen burners. The same section requires “ the corporate authorities to provide the lamps, burners, and lamp posts.” The learned counsel for plaintiff maintains “ that the aforesaid section only renders it compulsory on the company to furnish the gas to the city, but in no degree exempts the city from an implied obligation to pay the company for it.” I interpret the law differently, and propose briefly to consider some reasons which determine my judgment on this controverted point. In the first place we observe the Act does not, in express words, declare that the company shall provide gas for the public use without pay, nor that the city shall in any degree be supplied with gas free of charge. Hence, the exemption claimed by the corporate authorities of Virginia City rests solely on an implied agreement of the original contracting parties — the Legislature granting the franchise and the beneficiaries named in' the grant; and therefore we must look to the entire Act and the circumstances under which it was passed to ascertain the probable intention of these parties in this regard. We have seen that the Act requires the company “to provide gas,” and the city authorities “to provide lamps, burners, and lamp posts:” None will dispute but that the words “ provide,” in connection with the city, is but another mode of expressing that “ the city authorities must furnish lamps’, etc., at the expense of the city.” If such is the meaning of the words in the one instance, can any plausible pretext even be' found for using the same words in a contrary and opposing sense in respect to the thing compelled — 328 — of the company ? I think not, and the only rational conclusion is, that when the Act declares that the company shall provide a given quantity of gas, it shall 'be at the expense of the company and nOt of the city. The right of the city to exact this service, and the corresponding duty of the company to perform it, depend on one condition only —that the Gas Company shall not be burdened with the cost of supplying either lamps, burners, or lamp posts, and the legislative reservation in favor of the city is coupled with the condition that the expenses of these are to be borne by the city. “ The one thing being expressed excludes all others.” When the law has in effect declared that the city shall pay certain specific items of expense necessary to secure to the public the benefit of lighted streets, it clearly excludes the presumption that it shall furthermore be held liable to pay for the gas provided by the company. Again: if it was the intention of the parties to this compact that the company should be compelled to furnish the city with gas, on the further condition that the city should pay for it, why is any quantity specified, or a limit fixed to this supply — at least, to so inconsiderable an amount — and especially, why is this limit enlarged at stated periods so that ultimately the quantity to be furnished is increased to three-fold that of the first year ? It occurs to me that the only theory upon which the full extent of plaintiff’s claim can be conceded and made consistent with this feature of the Act is, that the Gas Company might not be compelled to provide a supply for the city beyond the productive capacity of its works, a theory scarcely reconcilable with our impressions of such establishments in populous cities. A more probable explanation of the reasons why these limitations were introduced in the body of the Act accords with our construction of it, and may be summed up in about this way. Here was a valuable franchise within the granting powers of the Legislature. It is bestowed on this company and made exclusive, so that the grantees cannot be molested by any rival enterprise. The city and its people for ten years are compelled to rely on this company for their supplies of illuminating gas ; the public streets are to be disturbed in the process of laying gas pipes; and as compensating in some degree for the rights and privileges acquired by — 329 — the company, the Legislature compels it to furnish the city on which it has imposed this monopoly, illuminating gas for public use, but with the understanding that it is to be supplied without charge, the allowance is restricted within certain limits; and also considering the obstacles which such enterprises ordinarily have to encounter in their beginning, the quantity for the first year, is limited to the very small amount specified in the Act. But when the expected advance of the city in population and improvement, by the natural course of things, has enhanced the demand for its use and consequently the resulting profits, the bonus is advanced with the enlarged facilities and resources of the company. But the learned counsel for the plaintiff seems to ascribe some importance to the fact that at the same session of the Legislature two other franchises for similar purposes in other cities of the Territory were granted, in each of ■which there was contained a special clause, that a given quantity of gas .was to be supplied to the cities named “ free of cost,” and concludes from this circumstance that if the Legislature meant to compel the plaintiff to furnish gas to Virginia City free of cost, it would have been expressly declared in this, as in the other charters. Because the Legislature has adopted more formal and precise language in the later Acts, perhaps ex industria, to silence all doubt, we are not to conclude that the omission of these words in the first mentioned Act establishes a contrary intention; but the question at issue must be determined the same as if no other franchise of this character had been granted by the Legislature. If, however, the position of counsel for plaintiff be correct, it evidences this remarkable fact, that the most valuable charter, the one granted plaintiff, is made in all material respects unconditional; whilst the others, of infinitely less value, are cumbered and burthened with exactions — an inconsistency and favoritism rarely discernable even in a Territorial grant of a private franchise. The matters embraced in the second and remaining qustion discussed at the hearing of this appeal involve the ascertainment of but a single fact, as to when “ the first year ” began, in the sense and meaning the expression is used in the Act; because such date, when fixed, regulates the measure of all subsequent supplies of gas — 330 — which the city can claim for public uses, free of cost; and from thence must be determined in what degree the quantity furnished the city has exceeded the amount it was lawfully entitled to without charge. Here it may be stated that this is an appeal from the judgment only, and consequently none of the testimony adduced on the trial below is before us ; and as the District Court has restricted its findings to but a portion of the facts which now properly should be made to appear, we are uninstructed on some questions which in my judgment were pertinent matters of inquiry; and indeed from the record as it comes to us, it is somewhat difficult to arrive at a satisfactory conclusion concerning this feature of the case. For instance, it would seem consistent with the issues made by the pleadings, to have determined when the works of the Gas Company were completed, when supply pipes were laid connecting the gas works proper with that portion of the city to be supplied, and finally when the city authorities were in a condition, with lamp posts, lamps and burners, to have the streets of the city lighted with gas. Upon most if not all of these points, it is reasonable to conclude that proofs were before the Court below; but none of these collateral facts are distinctly passed upon by the findings, and in some respects it is left to conjecture the basis upon which the Court below founded its judgment. In this condition of the case, let us for a moment recur to the statutes already cited. By the terms of Sec. 2 the charter of'plaintiff runs ten years from the 28th of November, 1861- — -the date of its approval. Sec. 4 requires the grantees named in the Act to organize under the general incorporation laws of the Territory within three months. By amendments to Sec. 5 of the original Act (see Acts 1862, pp. 15, 16) the company is required “ to commence the completion of the works necessary for the manufacture or production of gas” by the twelfth of June, 1863, and “ to complete the same on or before the first day of June, 1864.” Sec. 6, as already shown, specifies the quantity of gas to be supplied for public use within a stated period, commencing with “ the first year”; but nowhere in the Act is a day or an event stated from whence shall be computed the commencement of such “ first year.” Wherefore we must determ — 331 — ine the intended meaning of the phrase so used in this connection. Plaintiff insists that the “ first year” spoken of manifestly refers to the year next succeeding the completion of the gas works; and assuming the first of June, 1864, to be the precise day on which the event occurred, by a ready process of reasoning establish their theory as to the point in question. To this proposition my reply is this: In the first place, it clearly appears that the date of -June 1st, 1864, was fixed for a single purpose, and its use cannot be extended beyond that of marking the extreme limit of time given for the completion of the manufacturing works of the company. It does not even fix a time, except in a relative sense, as the language of the section is “ on or before ” the first of June, 1864; so that the event of completing such works may have happened on any day between the passage of the amendatory Act and the limit therein specified. As to the other ground assumed by counsel, that June 1st, 1864, was the true date of the completion of these works, it is sufficient to suggest that neither by the pleadings nor findings of the District Court is this fact shown, and for aught this Court can know, the works were completed prior to that day. However, in the light which I regard this particular point of inquiry, it is quite immaterial whether such was a fact or not. But it is said that •inasmuch as the first of June, 1864, is the only date fixed by the Act which with reasonable propriety can be considered for such 'purpose, we should therefore accept it as the commencement of the “ first year,” as otherwise there cannot be any date ascertained .for such purpose. As already observed, this date is used in a relative sense only, is fixed for but a single purpose, and certainly it .has but a very remote connection with the question of time involved in the supply of gas to the city. The absence of a date fixed by express words may be no serious impediment in determining the commencement of such “ first year,” if some event contemplated by the Act can be made to serve a similar purpose, more especially when, as in this case, the rights of the city are made dependent absolutely on conditions to be performed by the corporate authorities, and the compliance with these conditions not fixed or limited within any given space of time. The condition upon which the city was to derive its gratuitous supply of illuminating gas, com — 332 — pelled it to provide necessary lamps, etc. Whenever these works of the company were completed, and whether completed or not, after the day limited for such purpose, the rights of the city attached, and the obligation of the company to furnish the stated supply of gas became operative; provided, the city was ready with its lamps, lamp posts, and burners. But until this needful provision had been made by the corporate authorities, neither could the public be benefited by lighted streets, nor the gas company be held amenable in any form of proceeding for ■ withholding such bounty; and this condition of things would exist so long a3 the city neglected to make provision in the respects mentioned. The loss and inconvenience to the city would be measured by the delay and neglect of its own agents. The advantages accruing to the company would also be proportioned to the extent of such delay, for we remember this act limits the duration of the charter to ten years following the approval of it; and as the supply of gas which the city is entitled to after the first two years must equal the demands of fifteen burners as against five burners during the first year, it follows that the period of the greater supply would be diminished in equal degree as to time, and threefold as to quantity — the final result depending on the time allowed to elapse before the proper authorities had provided necessary lamps, lamp posts, and burners. It seems to me, therefore, that under the circumstances it is most reasonable to conclude that the Act contemplates “ the first year ” to be reckoned from the time when the city was prepared to accept the gas from the company for the purposes indicated. The happening of the event, it is true, depended on many contingencies which were incapable of being estimated at the time the Act was passed; but in the progress of events the ascertainment of this fact was not only rendered possible, but indeed as readily detei’mined as any other question which might arise in giving construction to the law. ** The facts found show that the company commenced to supply the city with gas in December, 1864; and as no claim is made against the company for not furnishing a sufficient supply for public use prior to this date, we may infer that this was the earliest time the city was conditioned to accept it, and therefore the supply for five — 333 — burners would embrace the twelve months succeeding, to wit: until December, 1865, when the increased supply should begin, and would terminate on the corresponding day of the following December, 1866, after which, and until the expiration of the charter, the maximum, quantity specified in the Act became the standard of future estimates between the parties in such particular. Guided by the principles herein laid down, it follows, therefore, that the gas consumed for the public use, in excess of a sufficient quantity to supply five burners, between the respective dates in December, 1864, and December, 1865, the city is liable for ; and as the findings of fact and judgment of the Court below' (except a trivial matter of computation) are in accordance with the principles enunciated in this opinion, I concur in the conclusions attained on both of the points discussed in the opinion of Mr. Justice Lewis, and concur in his affirmance of the judgment.