(dissenting) — I respectfully dissent.
Some facts either not mentioned or not made clear in the *904majority opinion should be stated. When defendant applied to plaintiff for gas service on March 19, 1948, it appears without dispute “he made some statement about wanting gas for the water heater if he could get gas run into the building. * * * he wanted to purchase from us a water heater to be used for a shower for his employees.” It is not denied that defendant’s garage at all times material here was equipped with an oil burner and coal furnace for space heating.
In December 1948', when plaintiff discovered defendant, without consent, had been using gas piped into his garage (pursuant to the above application) not only for a water heater, but for space heating, plaintiff informed defendant gas was not then available for such purpose. “* * * it was agreed Mr. Herme would be off by the 15th of January, 1949.” This testimony, also undisputed, is taken to mean defendant agreed to discontinue use of gas for space heating.
• In April 1949, when defendant applied to plaintiff for gas for another building used by him at 243 18th Street Southeast, near his garage, “He made the statement he would put in for 243 18th Street Southeast and then if his application did not receive an approval number it didn’t make a damn to him anyway; he would just pipe it over from his other building [garage].” There is no denial of this.
As the majority states, the Northern Natural Gas Company which had contracted to furnish plaintiff all gas required by it for twenty years was subject to the orders of the Federal Power Commission. “This contract was canceled by the Federal Power Commission and a new one substituted.” The Federal commission recognized that an emergency existed because of the extraordinary demands for gas for space heating.
After the Northern Company allocated gas to plaintiff and its other customers, plaintiff seems to have made every reasonable effort to procure more gas from Northern even to the extent of bringing suit (with others) against it in federal court. Plaintiff purchased all the gas allocated to it. This allocation of gas to plaintiff by Northern pursuant to the order of the Federal Power Commission left plaintiff with no other recourse than to place *905some restrictions upon the rise of gas by plaintiff’s customers and prospective customers.
In March 1948, Northern increased its supply of gas to plaintiff although the increase was insufficient for plaintiff to meet all demands upon it. Plaintiff then promptly formulated and published in newspapers in April 1948 rules under which this added supply of gas would be available to residents of the communities served by it. After plaintiff obtained another additional allocation of gas from Northern in 1949, still insufficient for plaintiff’s needs, new rules were adopted and published in April of that year and the 1948 rules were discarded. Defendant made no application for gas for space heating the garage under the 1948 or 1949 rules.
It is true neither the 1948 nor the 1949 rules were submitted to the city council for approval and the franchise ordinance states that all rules “made under the authority hereof shall be first approved by the city council * * * before being placed in force.” I disagree with the majority holding that under the circumstances here failure of the council to approve the rules is fatal to plaintiff’s right to relief.
The franchise ordinance, immediately preceding the provision just quoted, clearly grants plaintiff the authority “to make all necessary rules and regulations with respect to furnishing the service herein provided for not inconsistent with the laws of Iowa, the provisions of this ordinance, or other constituted authority.”
That rules were necessary for the allocation of gas after plaintiff’s source of supply had been reduced seems obvious. Because of circumstances beyond its control plaintiff was unable to procure sufficient gas to supply the demands of all its customers and prospective customers. It is not contended the rules adopted by plaintiff were inconsistent with Iowa laws, the provisions of the ordinance “or other constituted authority.”
There is neither pleading nor proof that such rules were unfair, unreasonable or unduly discriminatory. There is no -indication the city council would not have approved the rules if they had been submitted to it. Nor does it appear there was any basis for the council to refuse to approve the rules.
Plaintiff’s 1948 rules merely provided that applications must *906be made to plaintiff for gas for heating purposes and they would be granted in this order: (1) Owners or builders of new homes under construction or planned to be ready for heat by November 15, 1948. (2) Owners or builders of homes recently completed who provided for gas heat in their building plans. (3) Owners wishing to install gas heat to replace existing equipment which is incapable of operation and cannot be repaired at reasonable cost. (4) Others desiring* gas for space heating.
I think it is common knowledge that similar rules were adopted by furnishers of gas in numerous Iowa communities during the period here in question.
It is plain defendant was in the fourth class designated in the above rules. It is fairly to be inferred from the record there were several hundred in Mason City alone (with a population of some 27,000), not to mention the other communities served by plaintiff, who were in greater need of gas for heating than defendant. To permit defendant to take matters in his own hands and procure gas heat without consent in plain disregard of reasonable rules adopted by plaintiff, even though they were not submitted to the council for approval, seems to reward inequitable conduct and give defendant an unfair advantage over many applicants for gas heat with a stronger claim than defendant.
Under the circumstances here plaintiff was not obligated during the time in question to furnish gas for heating to everyone who desired it regardless of need. The franchise ordinance itself provides plaintiff “shall at all times, unavoidable circumstances only excepted, * * * furnish all gas required by * * * .the inhabitants * * The reduction in plaintiff’s supply of natural gas, pursuant to directions of the Federal Power Commission to which the Northern company is admittedly subject, was an unavoidable circumstance.
Birmingham v. Rice Bros., 238 Iowa 410, 416, 417, 26 N.W. 2d 39, 42, 43, 2 A.L.R.2d 1108, after quoting from different authorities as to the obligations of public utilities, makes this statement, “Neither by common law nor any statute (called to our attention) is any public utility required to serve all. The conduct prohibited is always unjtist discrimination, unfair rates or practices, or unreasonable rules.”
*907By tbe foregoing test plaintiff was under no obligation during the time here involved to supply defendant with gas to heat his garage. I think plaintiff was entitled to the relief prayed and therefore I would reverse.
Smith, J., joins in this dissent.