(dissenting):
I am unable to concur in the opinion and decision in this cause.
The city has power to protect its own property, even though, in so doing, it may be necessary to deny to citizens privileges they desire. Citizens have no legal right to require the city to grant a franchise to a public service corporation, or to enforce the granting of such a franchise as they think they should have, otherwise than by the election to the city offices, of men favorable to the grant of the particular franchise. Having had the legal power to refuse the gas company any franchise at all, it necessarily had the narrower and lesser power to grant it a limited one. All this the majority opinion admits.
Assuming the action of the city council, in the granting of the franchise, tó have been legislative, the court declares *387the limitation upon the franchise void, because it works discrimination between citizens and sections of the city. I think this a fallacious position. The action of the council was not legislative in any -substantial or true sense of the term. Such a franchise is a mere contract between the city in its corporate capacity and the corporation rendering the service. Bluefield Water Works etc. Co. v. City of Bluefield, 69 W. Va., 1; Railroad Co. v. Triadelphia, 58 W. Va., 487; Clarksburg E. L. Co. v. Clarksburg, 47 W. Va., 739. Hence the principle declared and applied in Fulton v. Norteman, 60 W. Va., 562, is not applicable. The action of the council was merely administrative, like the building of a bridge, a road or school house, over which the power of the corporation is plenary and irreviewable. County Court v. Boreman, 34 W. Va., 87. Manifestly the gas company has no legal right to demand anything of the city other than the observance of the contract as made, and, as made, it expressly excludes the right claimed by the gas company. By all authorities, the citizen has nothing more than a sort of moral right respecting the policy of the city. So the gas company having no legal right of its own, can derive none from the citizen, for he has none. The addition of nought to nought does not make anything. That the gas company itself has no right to violate the condition of its contract with the city is virtually admitted, but it endeavors to justify itself, in so doing, under some sort of right in the citizen.’ The latter’s lack of power to control the city otherwise than by the exercise of the right of suffrage has been shown, but, if he had any, it is not perceived how the gas company becomes his representative.
The gas company derives its general powers, not from the city, but from general laws, and they are subject to this important limitation: they cannot be exercised in any incorporated city or town without its permission. This right of the city or town to grant or refuse such permission includes the right to grant it upon conditions, and it may limit such public service corporation to the exercise, within the limits of the city or town, of only part of its general powers. No reason is perceived why the city may not parcel out its territory among a number of public utility concerns or parcel *388out the business among them on the basis of departments as the city of Wheeling has divided it. The Kentucky eases cited in the majority opinion so hold. That some of them were ordered not to be officially reported does not deny them the dignity of precedents. The first one, declaring the principle adhered to by the later ones, was ordered to be reported and the decision appears to have been unanimous.
Foundation for this decision is sought in the principles of equity jurisprudence, but no basis for it there is perceived. What may be. deemed moral rights in citizens against municipal corporations are not equities and have never been recognized as such. This is well and clearly demonstrated in the Parkersburg bridge cases, County Court v. Boreman, 34 W. Va., 87 and County Court v. Armstrong, 34 W. Va., 326, and in City of Charleston v. Littlepage, 73 W. Va. 136, - S. E. - and Spedden v. Board of Education, decided at this term. The question is one of municipal policy and power, in which mere moral rights of citizens are not recognized nor cognizable, except by the corporation itself.
The opinion also contains a suggestion of disability on the part of the city to sue in equity by reason of its misconduct in the operation of its own gas plant, but the clean hand doctrine has no application. Gas illumination is a department of public service allotted or reserved, by competent legal authority, to the city itself, and, therefore, does not belong to the gas company. Hence any declaration of duty on its part, respecting that department, was not inequitable or wrong conduct toward or against the gas company. Courts of-equity do not réfuse people relief on account of their generally bad character or their wrongful acts having no immediate and direct connection with the subject matter of the relief sought, under the clean hand rule or principle. Peters v. Case, 62 W. Va., 33. To bar relief the inequitable conduct must have occurred in and about the identical subject matter, of the bill and have been to the injury of the defendant. Obviously the doctrine has no application here.
The Ohio case of Springfield v. Springfield Gas Co., cited and relied upon in the majority opinion, is not applicable. There the city sued to compel the gas company, holding two franchises, one for natural gas for fuel and power purposes *389and th.e other for artificial gas for illuminating purposes, to furnish natural gas for lighting purposes. By the institution of its suit as well as its previous demand, it assented to the furnishing of such gas for such purpose. Here the city has not given such consent. In so far as it releases the city from its contract with the gas company, the decision is utterly inconsistent with the Kentucky cases referred to as well as with sound legal principles.
Judge Robinson joins in this dissent.