This is an appeal from a decree dismissing appellant’s bill, which sought to enjoin appellee from interfering with appellant in laying gas pipes in the streets of said town, under an ordinance passed March 25, 1884, by appellee’s board of trustees.
Section 3 of the ordinance required appellant to “ commence furnishing gas to the town of Lake within one year from the date of the passage of this ordinance, and the price of gas to consumers shall not exceed two dollars and fifty cents per thousand cubic feet,” etc.
The Chicago, Rock Island and Pacific Railroad Company had gas works erected on its own property in the town, which, in October, 1884, were leased to Theodore G. Springer, for two years, the lease binding Springer to put into the works what was known as the Springer process for manufacturing gas, and the railroad company reserving the right to purchase from Springer, at cost, all his improvements and apparatus at the expiration of the term. There was an understanding between Springer and Morse, the president of the gas company, that the lease was for the company; the gas works were taken possession of by the company and improved by it, and the lease was assigned to it by Springer, February 18, 1885. The lease gave Springer the right to lay gas pipes on the ground of the railroad company, but made no provisions for extending them further.
Heither lessor nor lessee had any right to lay pipes in the streets of the town. Before March 25, 1885, the works were prepared to manufacture gas, the railroad and its employes residing on its property being supplied with the article from the new gas works. But notice was not given to the town authorities of appellant’s readiness to commence furnishing gas, nor was there any public announcement thereof made.
The record fails to show that the railroad company was advised of the interest of the gas company in the works. There was no sign on or about the works indicating the proprietorship of appellant, and, in fact, its interest seems to have been known to only two of its officers, wdiile it remained a profound secret to every other person. Ho attempt was made to extend pipes from the works into the streets of the town until May 9,1885. At that time the police of the town interfered and forcibly prevented appellant’s employes from laying any pipe, the town authorities denying the right of appellant, then or at any time thereafter, to any of the privileges provided for in the ordinance. We think it plain, from this statement of facts, that appellant never performed its part of the contract, the spirit of which required something more of appellant than the building of gas apparatus under cover, and withholding all knowledge thereof from those who were to receive its advantages, until the year specified in the ordinance had elapsed. Secrecy for upward of a year could no more be justified than for five years. Consumers could not use the gas unless informed of appellant’s readiness to supply the same. Appellant is not excused by the fact that it was enjoined from laying pipe, nor by the passage by the board of trustees of an ordinance April 23, 1884, for the repeal of the ordinance of March 25th. The injunction was dissolved April 25,1884, after which time more than a year elapsed before any steps were taken for extending pipes from the works into the street. The repealing ordinance was of no force, if appellant had, as it claims, accepted the ordinance of March 25th. There was nothing to prevent appellant proceeding with its duties under the latter ordinance after the dissolution of the injunction. No force was used until the failure of appellant to comply with the ordinance for more than a year after the dissolution of the injunction. The repealing ordinance was nothing more than the wrongful assertion of appellee’s right to rescind the contract.
The decree of the Circuit Court is affirmed.
Decree affirmed.