dissenting.
I cannot accept the reasoning of the majority opinion. By the terms of its franchise the gas company contracted that it would, “when and so often as requested so to do by said city”, bid for street lighting at a rate not exceeding, “for each lamp burning gas at the rate of five feet per hour $25.00 per annum per lamp lighted every night one-half hour after sunset and extinguished one hour before sunrise, said sum to include -lighting, extinguishing and cleaning.”
The city made no agreement or contract upon its part to light its streets Avith gas, but as a condition for the grant of the franchise, exacted from the gas company the foregoing provision. The city became under no obliga*767tions to take gas from the gas company, but the gas company-is obligated to offer to supply it to the city at the price fixed by the franchise ordinance for the service therein specified.
The opinion holds that because the city enacted an ordinance authorizing its officers to enter into a contract for street lighting by the use of Welsbaeh mantels and appliances upon different terms than those which the gas company were required by the ordinance to offer when so requested, the franchise ordinance was modified. The reason assigned is that by entering into a contract for five years with the gas company the city had lost the right to request such a bid from the gas company and the gas company was relieved from that obligation for the same period. I cannot so consider.
Tiie invention of the Welsbaeh system of incandescent lighting, whereby a more economical and better system of illumination than the old system of lighting by the naked gas flame has been devised, and which is in general use, made it entirely proper for the city to adopt the im-. proved method of lighting its streets.
It was not bound by the franchise ordinance to adhere to or adopt any system of lighting. It might use gas, electricity, gasoline, or any other system. It might disregard the old plan and adopt a new if in its judgment it seemed Avise to do so. If this contract had been entered into with a competitor of the gas company, how could such an entirely independent contract be in any wise a modification of the franchise? The effect would be precisely the same as to the rights of the city and the gas company. The obligation of the gas company to make the specific bid would still exist, notwithstanding the city had entered into a contract with a third party to light its streets for five years. And so, when it entered into this contract Avith the gas company, the company is not relieved from its franchise obligation, nor is the city prevented from calling upon it ‘Svhen and so often” as the proper officers deem it for the best interest of the city *768to call for such bids. Suppose that, for some reason or other, the city should desire to return to the naked flame system, could it not compel the gas company to hid under the franchise ordinance, leaving the question of damages for a breach of the present contract to be settled according to the legal principles governing such a breach; or, suppose that a competitor’s hid had been accepted and it had failed to comply with the contract, or after beginning service had stopped performance, could not the city still call upon the gas company for a hid under the .provisions of the franchise ordinance?
By the franchise ordinance, the gas company was hound, while the city was free. The gas company was under obligations to propose when requested, but the city was under no obligations to accept. This being so, and the city officials having deemed it best to adopt a plan of lighting not covered by any provisions of the franchise ordinance, how can it logically be said that the provisions of that ordinance have been modified?
I think this contract was made entirely outside of the provisions of the franchise ordinance, and I am unable to see any sound reason for the holding that “the obligation of the gas company to make bids was changed, reduced, qualified, and limited” by the new ordinance.