I fully concur in all the views expressed in the foregoing opinion.
Napton, J. —As all the judges are agreed that the tripartite contract of 1873 is valid, and this conclusion virtually settles the case, I will only venture to add a few words explanatory of my individual views in regard to some of the subordinate points discussed.
It is of no importance, in my opinion, so far as results are concerned, whether the contract of 1846 be held valid or otherwise; if invalid, this suit, which is to enforce an obligation created by it, must of course, fail, and if valid, the discharge of that obligation, assumed in .1846, by the contract of 1873, is equally fatal to the maintenance of the action. Assuming the contract of 1846 to have been invalid, which I think it was, so far as it attempted to bar the city from purchasing under the provision of the charter in 1860, the resolution of the city in 1860, preceded by the notice .in 1859, undoubtedly imposed a duty, on t,he gas company which could not be evaded or annulled by any obstinacy on the part of the company. The plain intent of the charter was to effect a transfer of the property, and not a compensation in damages for a failure to *122transfer. It was certainly a one-sided obligation, made so-by the charter, the city not being compelled to buy at any time, and the company being compelled to sell only at certain specified periods.
The Legislature had it in their power to dispense with any equity rules in regard to the specific performance of contracts, and would be so undersood to have done, unless an'equally efficient mode of producing the result rendered such dispensation unnecessary. But the latter question is, in my opinion, unimportant, since the proceeding begun in 1859 was abandoned by the city, as it had the right and power to do — for there was no obligation ever imposed on the city to buy the works at any time. Nothing was done by the city for ten years, until in 1870 this suit was instituted under the contract of 1846.
Admitting that this contract of 5§46 was valid, so far as to allow the city to purchase in 1870, it would seem that the parties to it would have equal power to abandon it. A transfer of the property of the gas company to the city could not be etlected by a mere resolution to buy and, therefore, the contract of 1873 was no sale of property already belonging to the city. ”W hether such property, after being conveyed to the city, would be any longer within the power of the city to sell, is outside of the present case. Aside from all questions as to specific execution of contracts, or as to the condition of the property, had the agreement been specifically executed, the tripartite contract 1873 was a settlement, upon adequate consideration, of all antecedent disputes, and put an end to all claims arising under the contract 1846. As to the relation of the two companies, the Laclede and the St. Louis, towards each other, and towards the city, the subject is fully considered in the opinion of the court, in which 1 concur.
Henry J. —The interest which this ease has excited, the zeal and ability which counsel for the respective parties have exhibited mine argument, together with the fact *123that I do not entirely agree with either of my associates, demand that I should state briefly the views I entertain on the points involved in the controversy.
I hold that the contract of 1846 was invalid, whether the charter, of the city or that of the gas company gave the city a general power to purchase or not. The charter of the gas company, by express provision, gave the city the right to purchase in 1860 or 1865, whether the gas company should desire to sell or not. The city had the option to purchase at either of those periods, while the company had no option in the matter, but by the terms of its charter was compelled to sell if the city, in the manner indicated by the charter, expressed a desire to purchase; and, conceding that the city, under some general power in its charter or the charter of the company, might either before or after those periods have purchased its gas-works and property of the company, the latter agreeing to sell, yet no board of aldermen, prior to the time at which initial steps toward the purchase could have been taken under the charter, could nullify the provisions of the charter authorizing a purchase by the city in 1860 or 1865. This view the city held and acted upon in 1859, when it duly notified the company of its purpose to buy. The Legislature declared that in 1860 or 1865, the city should have the right to buy, and that at either of those periods if the city properly declared its purpose to purchase, the gas company should sell. Admitting that at any time, with the consent of the company, the city had the right to purchase, yet by no contract, except one of purchase of the company’s property prior to 1860, could a board of aldermen waive the right and prevent its exercise by the city at the designated period. The aldermen in 1860 might have declined to make the purchase, but could not bind the aldermen of 1865 not to Durchase at that period.
But, conceding the validity of the contract of 1846, there can be no specific performance of the contract enforced, as I think is conclusively shown in the opinion of *124Judge Norton. And oven if it were suet a contract as could be specifically enforced in equity, it was rescinded by that of 1873 — as to the validity of which I agree with my associates. The city was not obliged, by any provision of her charter or that of the gas company, to buy the works and property of the latter at any time. It was always optional "with the city, and until the purchase was made the option continued. The power to make an executory contract implies the power to rescind it, when, in the first place, it was optional with the party desiring to rescind to make the original or not. If the city had once acquired the property, the question of her power to dispose of it, so ably discussed by counsel, would be pertinent, but she never made the acquisition, and whether the property is of a character which the city might have sold, if she had ever owned it, it is not necessary to determine. The contract of 1873 was in no sense a sale of the gasworks by the city, but the relinquishment of a right to acquire them under the contract of 1846.
The resolution of the board of aldermen in 1859 declaring, in conformity with the charter, the purpose of the city to buy the gas-works, was a nullity, if the contract of 1846 was valid and binding on the city, and on the proposition that it was valid the plaintiff must, in this case, stand or fall. That resolution was in direct violation of the contract of 1846, by which the city relinquished the right to purchase in 1860. And how the city, suing upon that contract, can derive any benefit from an act in flagrant violation of that contract, I cannot conceive. But the purpose expressed in that resolution was abandoned'by the city. The company refused to sell, whether rightfully or wrongfully we need not stop to inquire, and the city ever since has acquiesced; for this suit is not to enforce the charter right of the city to purchase, but the right acquired 'by the contract of 1846. There is nothing in the provision of the charter to countenance the idea that the board of aldermen which passed the resolution to purchase, could *125not rescind it, or that when passed the city was. bound to. proceed with the purchase. ' The evident meaning and intent of the statute is, that the city should have the option to purchase at the designated periods, and that this option should continue until a consummation of the purchase. If, in 1860, the city had followed her resolution with proper steps, she could have compelled the transfer of the property by the company by a proceeding in mandamus. The duty imposed upon the company to sell and convey in 1860 or 1865, if the city then determined to buy, in the manner provided by the charter, was a corporate- duty which it would have been compelled to perform by mandamus. As not otherwise herein indicated, I fully concur in the opinion of the court.