PARTIALLY DISSENTING OPINION. No question of the violation of Section 183, or any other Section of the Constitution, here arises for two reasons: (a) Chapter 280, Laws of 1940, does not authorize municipalities to operate a gas distribution system in connection with an individual or corporation, each sharing in the management and profit or loss thereof; (b) the contracts by which the appellant acquired a half interest in these gas leases do not provide for the operation of a gas distribution system jointly, or as partners by the City and the appellant.
I am of the opinion, (1) that the City had the right to contract with the appellant to finance the drilling of these wells, for which the appellant was to receive a one-half interest therein, and to convey to the appellant a one-half interest in the leases on which the wells were drilled; (2) that under these contracts the City and the appellant each own a half interest in these gas leases and that the City was without the right to sell the output of the gas wells thereon and appropriate the money received therefor to its own use but should account to the appellant for the value of his interest therein, which the appellant by his cross-bill seeks to recover. The appellant and the City are tenants in common of these gas leases and if the City desires to operate the wells thereon exclusively for its own benefit and the appellant should refuse to sell his interest therein to the City, it, of course, has the right to have the leases on which the wells are situated sold for a partition of the proceeds of the sale.
Since three members of the court are of the opinion that these contracts were ultra vires and not binding on the City, the decree of the court below can not be reversed *Page 740 on the ground I hereinabove set forth; that being true I concur in Judge McGehee's opinion as to what, in this aspect of the case, the decree of the court below should have been.