Charles Evans Hughes

“ It is urged that, in the absence of any provision for formal or written acceptance, the only way the offer could be accepted was by use of the streets, and that for this reason the rights of the company could not extend beyond the length of its pipes in place. But this is to say that the offer as made could not be accepted at all; that the right to lay pipes could not in any event be acquired. ”

“ It is to assume, despite the explicit statement of the constitutional provision, that the investment in extensive plants-in the construction of reservoirs, and in the building of manufacturing works-was invited without any assurance that the laying of the distributing system could be completed, or that it could even be extended far enough to afford any chance of profit. ”

“ It would not be said that either a water company or a gas company, establishing its service under the constitutional grant, could stop its mains at its pleasure and withhold its supply by refusing to extend its distributing conduits so as to meet the reasonable requirements of the community. ”

“ It was averred, and not denied, that the works of the gas company were established and operated with the intent to furnish gas throughout the city, wherever needed, and that this enterprise had been diligently prosecuted; that a large investment had been made in a plant which was adequate to supply a much greater territory than that reached by the distributing mains when the amendment of 1911 was adopted; that the expense of this installation made it impossible to supply at a profit the limited territory contiguous to the streets then actually occupied by the company ”

“ It cannot reasonably be contended that the relator is obliged to apply for a new grant whenever a new street is opened or an old one extended, as would be the case if the consent applied only to the situation existing when made. ”

“ It has often been stated, as one of the reasons for the rule, that statutes and ordinances embodying such grants are usually drawn by interested parties, and that it serves to frustrate efforts through the skilful use of words to accomplish purposes which are not apparent upon the face of the enactment. ”

“ The board informed the company that there were no general regulations on the subject with which it had complied, but that the company would not be permitted to open the street, or to lay its pipes therein, unless it first sought and obtained a franchise by purchase in accordance with the ordinance of October 26, 1911. Thereupon, the company notified the board that it would extend its mains at the time and place stated, and requested the board to direct and superintend the work. ”

“ On October 10, 1911, this section of the Constitution was amended by the substitution of the following provision:
'Sec. 19. Any municipal corporation may establish and operate public works for supplying its inhabitants with light, water, power, heat, transportation, telephone service, or other means of communication. Such works may be acquired by original construction or by the purchase of existing works, including their franchises, or both. ”

“ Nor does that provision permit the assertion of an exclusive franchise. The city may not only authorize others to compete, but it may compete itself. Madera Waterworks v. Madera, 228 U.S. 454, 57 L. ed. 915, 33 Sup. Ct. Rep. 571.
Within these recognized limits, the question remains as to the nature and extent of the right acquired by the company prior to the constitutional amendment,-a question which, in view of the appeal to the clause of the Federal Constitution prohibiting state legislation impairing the obligation of contracts, it is the duty of this court to determine for itself. ”