SPEIALLY CONCURRING OPINION. Justices Alexander and Roberds concur in the result reached in the opinion by Judge Anderson, but do not consider that it is necessary to pass upon the constitutionality of Chapter 280, Laws of 1940, nor to construe Section 183 of the Constitution of 1890 as applicable to the situation here.
We think this contract is ultra vires and invalid because it was not authorized by, nor embraced within, said Chapter 280.
That special act confers upon said municipalities the power to "operate gas systems, including gas distribution systems, and to that end said municipalities are authorized to drill or purchase a well, or wells, to supply said gas systems within the municipality . . ." As stated in the main opinion, the contract in question and the rights of the parties thereunder are invisible and inseparable and must be exercised, if exercised at all, by mutual consent; thereby, by merely refusing it consent, the other party could prevent the municipality from performing its duty to the inhabitants thereof and from exercising its functions as contemplated by said Chapter 280. There would be no way to force the co-partner to agree. This litigation illustrates that situation; the parties are already in disagreement, with litigation resulting therefrom. This contractual relation is indefinite and there is no way to end it. The contract contains no expiration date. It might continue for many years. There is no way to terminate it judicially except as is here done in the main opinion. There can be no partition of the gas which may be produced thereunder. The other parties to it were charged with notice of the powers and *Page 739 lack of powers of the municipality. It is being reimbursed, with interest, everything which it put into the venture. To pay them the value of what they supposedly acquired would be to validate the contract.