State v. Excelsior Coke & Gas Co.

The opinion of the court was delivered by Mason, J. : This is an original action brought in the name of the state to oust the Excelsior Coke and Gas Company from the exercise of a right, which it claims has been granted it by a city ordinance, to lay and maintain its gas-pipes in the streets of Topeka. The only question necessary to be considered is the validity of such ordinance. By a former ordinance, the validity of which is not challenged, passed June 7, 1869, a franchise was granted to the company for twenty-one years from that date. In 1881, in a revision of the statute relating to cities of the first class, it was enacted that “no franchise, rights of way, or privileges of any character whatever, shall be granted by the mayor or council for a longer period than twenty years.” (Gen. Stat. 1901, § 727, subd. 23.) On July 16, 1889, Topeka then being a city of the first class, the mayor and council passed the ordinance now in question, granting the gas company the further right to the use of its streets for twenty years from June 7, 1890, the day following the expiration of the old franchise. • The ordinance by its own terms, however, did not take effect until the last-named date. The principal contention of the plaintiff is that the ordinance was void because it was, in effect, a granting of a privilege for a longer period- than twenty years. It is argued that unless this position is well taken the statutory restriction can be completely nullified by the passage of two ordinances, one grant [47] ing a privilege for the maximum statutory term and the other granting the same privilege to the same company for an additional time commencing at the end of such period. The fallacy of this argument lies in the assumption that an ordinance has some force and effect before the time set for it to go into operation. The answer is that until that time arrives it has no effect’ for any purpose. It imposes no obligation on the city and cannot be made the basis of a present contract. At any time before it takes effect the city may repeal it, notwithstanding that its terms may have been accepted and expenditures may have been made in reliance upon it. This was expressly held in Gormley v. Day, 114 Ill. 185, 190, 28 N. E. 693. That case arose under a provision that the ordinances of a village should take effect ten days after copies should have been posted in three public places. An ordinance was passed under which the plaintiff claimed to have acquired special rights, but before it took effect it wTas repealed. Of his claim that such repeal was ineffective as to him the court said : “For the purposes of the argument it may be conceded if the ordinance had gone into effect before its repeal he would have acquired special rights under it; but as it did not, his rights remained precisely the same as if the vote of the council adopting it had never occurred. Before the so-called ordinance could have any legal effect as such, two things, in addition to the affirmative vote adopting it, were necessary : First, printed or written copies of the ordinance had to be posted within thirty days after its' passage in three of the most public places in the village ; and second, the lapse of ten days after such posting. From its passage until the full period of ten days after posting had expired,'it existed, so to speak, as an ordinance in embryo, merely. Until the final condition essential to give it effect as a law was performed, no [48] rights, inchoate or otherwise, could arise under it, either to the relator or to any óther person. The right of the village council to rescind or repeal the resolution adopting the ordinance, at any time before it took effect, is too clear to admit of discussion or doubt. The council have exercised this right, and we have no disposition to interpose, even if we hdd the power to do so, which we clearly have not.” It is true that the ordinance now under consideration provided that the gas company, in order to gain any rights under it, should file an acceptance within ten days- after its approval by the mayor, and that from the filing of such acceptance it should operate as a contract between the city and the company. These provisions were limited, however, by the express restriction as to the time the ordinance should take effect. It was not, in legal contemplation, an ordinance taking effect at once and authorizing a contract to be made immediately covering a period of twenty years commencing at a future date, although its 'draftsman may have so regarded it. If it had been, it doubtless would have been subject to the objections urged by plaintiff. (City of Somerset v. Smith, 49 S.W. [Ky.] 456, and Chillicothe v. Logan Nat’l Gas and Fuel Co., 8 Ohio N. P. 88.) Until the time fixed for the taking effect of the ordinance was reached, the company gained no contract right, and the city had full power to repeal it. But when that time arrived without the ordinance’s having been repealed and without the acceptance’s having been withdrawn, the situation was the same as though it had been passed, approved, published and accepted all on the same day, the 7th of June, 1890. Another objection made to the ordinance is that it is against -public policy to allow one council to forestall the action of future councils by granting a fran [49] chise to commence at a time beyond its own life. It is urged that such a policy would result in tying the hands of a council that might be elected with special reference to the regranting of a franchise about to expire. This objection is met by what already has been said as to the right of the council to repeal the ordinance at any time before its becoming effective. The prayer of the petition is denied and judgment is rendered for defendant for costs. All the Justices concurring.