Knorr v. Commissioners. amount of the allowance of an administrator for the regular compensation of 6 per cent on the first thousand, etc., was discretionary with the probate judge or was an absolute right of the administrator. In that statute the phrase "may be allowed" is used in reference to the regular compensation of the administrator, but it was held that in connection with the other provisions of the statute the regular allowance to the administrator cannot be reduced by the probate judge but must be allowed. If this is a correct interpretation of the law fixing the rate of compensation for an administrator where the phrase "may be allowed" is used, by a much stronger reason is the court required to construe the clause "may be charged" in this statute as fixing an absolute rule of compensation. It may be added that the court in this case is not called upon to determine as to the reasonableness of the price or compensation fixed. It is presumed conclusively, so far as the court is concerned, that the rate fixed was a reasonable one at the time the act was passed. It is not competent for the court to amend or repeal statutes. It has no other duty but to construe the statutes as they are written. If the price fixed by this statute is not a just one, it is for the legislature to make the amendment. The claim will be allowed, therefore, at the rate prescribed for tabular work so far as the commissioners' report is concerned. Now as to the report of the examining committee. The law does not justify the making of such reports in tabular form, but contemplates straight matter, and such reports, although a part of it may be tabular, must all be paid for as straight work. The allowance will be made on the basis of this opinion. GAS-INJUNCTION-MUNICIPAL CORPORATIONS. CENTRAL OHIO NAT. GAS & FUEL Co. v. COLUMBUS (CITY) ET AL. 1. PRESUMPTION THAT ORDINANCE Fixing Price of Gas, Valid. It will be presumed, in the absence of allegations of fraud or want of good faith, that a municipal ordinance fixing the price to be charged for natural gas is reasonable, and it will not therefore be the subject of judicial inquiry. 2. INJUNCTION WILL NOT LIE AT INSTANCE OF GAS COMPANY TO PREVENT MUNICIPALITY FROM FIXING LOWER PRICE AS BASIS FOR NEW COMPETING COMPANY. Monopolies are odious, and it is contrary to public policy and the best interests of municipalities to grant exclusive privileges which will in effect create them; hence, if a municipal corporation has fixed the maximum price of natural gas under favor of Rev. Stat. 2478, 2479 (Lan. 3739, 3740), and a company has accepted the provisions of the Franklin Common Pleas. ordinance and engaged in supplying gas thereunder, injunction will not lie to restrain such municipality from fixing a lower maximum price for a competing company. 3. ORDINANCE FIXING PRICE FOR NEW GAS COMPANY LOWER THAN FOR ORIGINAL COMPANY DOES NOT IMPAIR OBLIGATION OF CONTRACT. An ordinance fixing the price which may be charged for natural gas by a competing company does not, as a matter of law, operate as a requirement that the company engaged in selling gas under a prior ordinance fixing a higher maximum rate shall furnish gas at the reduced price fixed by such latter ordinance, and does not, therefore, impair the obligation of the contract of the old company. 4. GAS COMPANY CANNOT ATTACK ORDINANCE FIXING LOWER PRICE FOR NEW COMPANY ON GROUND OF LACK OF UNIFORM OPERATION. A gas company will not be heard to attack an ordinance fixing the price at which gas may be sold by a new competing company on the ground that, being general in its nature, it lacks uniform operation, where it appears that the complaining company is allowed under the terms of a prior ordinance to sell gas at a higher price than its competitor will be, under the new ordinance. 5. MUNICIPALITY NOT AUTHORIZED TO ENGAGE IN SELLING NATURal Gas. No authority is conferred by Rev. Stat. 2480 nor 2486 (Lan. 3741, 3748), by which a municipality may engage in the business of selling natural gas. [Syllabus approved by the court.] E. L. De Witt and F. E. Hubbard, for Central O. Nat. Gas & F. Co. H. A. Williams, for Federal Gas & F. Co.. J. M. Butler, for Columbus. Franklin Rubrecht, for Columbus Nat. Gas Co.. BIGGER, J. The plaintiff in this case states in brief that it is a corporation organized and incorporated under the laws of the state of Ohio, with its principal place of business in this county; that the city council of the city of Columbus, on or about July 1, 1901, by ordinance, fixed the price at which any natural gas company or companies which then had the right to lay and maintain pipes and mains in the streets, avenues, alleys and public grounds of the city should be entitled to charge for such gas for the period of ten years from and after the passage of the ordinance; that the ordinance fixed the price which the plaintiff company was entitled to charge at thirty-five cents per thousand cubic feet, from which a discount should be allowed for the first two years upon bills paid on or before the tenth day of the month, for gas consumed the preceding month, of fifteen cents per thousand cubic feet, and for the next two years a discount of ten cents per thousand cubic feet, and for the remaining years a discount of five cents per thousand cubic feet. It is stated that the ordinance provided further that when the said gas company or companies should file their written assent with the Gas & Fuel Co. v. Columbus. city clerk that the said ordinance and acceptance should be treated as a compliance with law on the part of the company or companies so accepting. It is then averred that the plaintiff did accept the ordinance in writing, and relying upon said ordinance and the acceptance thereof, it expended vast sums of money in acquiring territory, drilling wells and excavating for and laying pipes so as to furnish gas to the inhabitants of the city, and that it has in good faith performed and carried out all the terms and conditions of the ordinance on its part to be performed; and it is further stated that the plaintiff is able and willing to continue to furnish gas during the remaining period of the grant at the prices fixed in the ordinance. It is then stated that the city, by an ordinance passed on or about October 23, 1905, has undertaken to grant to the defendant, The Columbus Natural Gas Company, the right and privilege of laying pipes in the city for the purpose of furnishing natural gas to consumers for a period of ten years from the date of the passage of the ordinance, and fixing the price which said company might charge for said gas, as follows: Up to, and including, July 1, 1912, not to exceed the sum of twenty-five cents per thousand cubic feet, with a discount of five cents per thousand feet upon all bills paid on or before the tenth day of the month for gas consumed the preceding month, and from and after July 1, 1912, for the balance of the term, not to exceed the sum of thirty cents per thousand cubic feet, from which a discount of five cents. per thousand feet shall be allowed upon bills paid on or before the tenth of the month for gas consumed the preceding month. It is stated that the plaintiff and the Federal Gas & Fuel Company were the only companies which had the right to lay and maintain pipes in the city for supplying natural gas at the date of the passage of the ordinance of July 1, 1901. It is stated that the Columbus Natural Gas Company is about to accept the terms of the ordinance and that the city clerk is about to publish the ordinance, as is his duty under the law. It is claimed that if the ordinance is published and accepted by the defendant, The Columbus Natural Gas Company, it will constitute a breach of the contract entered into in 1901, between the city and the plaintiff company, and that the plaintiff will thereby suffer great and irretrievable injury and will be without adequate remedy at law, and upon the foregoing facts, the plaintiff asks that the city and the city clerk be enjoined from publishing the ordinance and that the defendant, The Columbus Natural Gas Company, be restrained from accepting under the ordinance. Upon the filing of the petition a temporary restraining order was Franklin Common Pleas. allowed, and this submission is upon the application of the plaintiff for an injunction pendente lite. Since the filing of the petition, answers have been filed by both the city and its clerk, and also by the defendant, The Columbus Natural Gas Company. Without undertaking to state the averments of these answers, it may be said that they admit these averments of the petition but deny the conclusion that the plaintiff will be damaged thereby and that the facts stated constitute any breach of contract between the city and the plaintiff under the ordinance of 1901, and its acceptance by the plaintiff. The question here presented for decision calls for a construction of Rev. Stat. 2478, 2479 (Lan. 3739, 3740), and a determination of the contract rights of the plaintiff under and by virtue of its acceptance of the ordinance of 1901. Revised Statutes 2478 (Lan. 3739) empowers the council of a municipal corporation to regulate from time to time the price which companies furnishing gas may charge for the same. Revised Statutes 2479 (Lan. 3740; B. 1536-568) reads as follows: "In case the council fixes the minimum (maximum) price at which it requires any company to furnish gas to the citizens or public buildings, or for the purpose of lighting the streets, alleys, avenues, wharves, landing places, and public grounds, for a period not exceeding ten years, and the company assents thereto, by written acceptance, filed in the office of the clerk of the corporation, it shall not be lawful for the council to require such company to furnish gas at a less price during the period of time agreed on, not exceeding ten years, as aforesaid." It is admitted, I understand, by counsel on both sides, that the word minimum used in this section should be read maximum. That this is the construction placed upon it by the Supreme Court clearly appears from the report of the case of Logan Natural Gas & Fuel Co. v. Chillicothe, 65 Ohio St. 186 [62 N. E. Rep. 122]. In brief, the plaintiff's contention is this, that by virtue of this section of the statute which forbids the council to require a company which has accepted an ordinance fixing the maximum price to be charged for gas for a period of years, from requiring such company to furnish gas at a less price during said period, the city council has no right or power to grant a franchise right to another gas company to furnish gas during the said period to the inhabitants of the city under an ordinance which fixes a maximum price below that fixed under the ordinance accepted by the plaintiff. This results, it is claimed, from the constitutional inhibition against legislation impairing the obligation of contracts which applies as well to a municipal ordinance Gas & Fuel Co. v. Columbus. as to state and national laws. That the inhibition does extend to municipal ordinances as well as state and national laws is undoubtedly true and is not disputed. That when the plaintiff company accepted the terms of the ordinance of 1901 it acquired contract rights thereunder, is equally well settled and is not disputed. That the city council is without power to require the plaintiff company to furnish gas to the inhabitants of the city during the ten years covered by the ordinance under which its rights arise, at a less price than therein fixed is the clear mandate of, Rev. Stat. 2479 (Lan. 3740). The question for determination, therefore, narrows itself down to this, Does this ordinance which grants the right to another corporation to furnishing gas during the period covered by the plaintiff's grant at a less maximum price than that required by the ordinance of 1901 require plaintiff to furnish gas at any less price than that fixed by the ordinance of 1901? It is claimed by the city and the defendant, The Columbus Natural Gas Company, that the grant contained in the ordinance of 1901, only extended to the two companies which then had a right to lay and maintain pipes in the city for furnishing natural gas, to wit, The Central Ohio Natural Gas & Fuel Company and the Federal Gas & Fuel Company. Attention is called upon this point to the language of the ordinance which reads: "That any natural gas company or companies which now have the right to lay and maintain pipes and mains in the streets," etc. From this it is said it appears that the ordinance referred only to those two gas companies, and that it was undoubtedly the intention of the council in limiting the ordinance in that way, that it might admit other companies later to furnish gas at a lower price, if conditions warranted it. It is undoubtedly true that the ordinance, by its terms, only applied to the two companies and that only two companies could have accepted its provisions. But this is or must be conceded by the plaintiff. In argument, it is said by counsel representing the defendants, that if only one of the two companies had accepted, only the one of them would be bound by its terms and that this acceptance by one of the companies would not have established any contractual relations between the city and the other company which did not accept. That is undeniable. But it does not seem to me to be an answer to the plaintiff's contention here. The plaintiff does not claim, as I understand, and it will be useless to make any such claim, that because one company accepted under the terms of the ordinance of 1901, that this established any binding contract obligations between the city and another company. But the claim is this, that conceding the city is not precluded from granting a right to another company to furnish gas at a less rate by any contract obliga |