The
Dayton Natural Gas Company is an Ohio corporation, organized
originally under the name of the Southwestern Ohio Natural
Gas & Petroleum Oil Company. On the 18th of March, 1887, the
city council of Dayton, Ohio, by ordinance, authorized said
corporation to occupy streets, alleys, and public grounds of
the city, and lay pipes for the purpose of furnishing gas to
the public and to private citizens. By the terms of the
ordinance it had 18 months within which to introduce gas into
the city, under penalty of forfeiture of all the rights under
the ordinance. The company accepted the ordinance, and
executed the bond as required by it, and began the work of
establishing itself within the city. It failed, however, to
introduce gas
by January 1, 1889, and in consequence of this failure the
city council, by resolution, in pursuance of the reserved
power mentioned in the ordinance, declared all the rights
granted thereby forfeited. Prior to this forfeiture, and on
the 23d of December, 1887, the council had passed an
ordinance regulating the price to be charged by the gas
company for natural gas to be furnished by it for fuel
purposes for and during a period of five years next ensuing
from and after the date at which the ordinance should take
effect, which was to be at the expiration of 10 days from the
date of its first publication. The schedule of prices
contained in that ordinance related alone to gas to be
furnished for fuel purposes by 'mixer measurement.'
Section 2 of the ordinance was in these words: 'The
foregoing is fixed as the minimum price at which said city
council requires said company to furnish gas to the citizens
of said city, and for the public buildings of said city, for
said term of five years, and said company is hereby required
to assent thereto by written acceptance, filed in the office
of the city clerk of said city.' This ordinance was duly
accepted by the gas company.
On the
28th of March, 1889, the name of the company having been
changed to the Dayton Natural Gas Company, an ordinance was
passed by the city of Dayton, granting to the company
'the right and privilege to lay, maintain and operate
pipes in the city for the purpose of supplying natural gas
for heating, fuel and power purposes only.' This
ordinance was in the following words and figures:
'Section
1. Be it ordained by the city council of the city of
Dayton, that, subject to the terms, conditions and
limitations of this ordinance, there is granted to the
Dayton Natural Gas Company, its successors and assigns, the
right and privilege, for the term of twenty years, to lay
maintain and operate mains, pipes, branches and conduits
through the streets, lanes, alleys, avenues and public
grounds of said city for the purpose of supplying said city
and its inhabitants with natural gas, or produced gas, for
heating, fuel and power purposes only.
'Sec
2. Before said company shall do any work or lay any pipes,
it shall execute a bond to the city of Dayton in the penal
sum of $50,000, to the acceptance of the city council of
said city, with not less than five sureties thereon, three
of whom shall be residents of said city, conditioned as
follows:
'(1)
That said company shall proceed within ten days after
being notified so to do by the city civil engineer of
said city, to repair and place in good condition the
streets, avenues, lanes and alleys of said city, where
pipes have heretofore been laid or work done by said
company, or by the S.W. O. N. G. & P. O. Co., and
prosecute said work with diligence.
'(2)
That said company will not in any manner molest, damage
or interfere with any of the gas or water pipes, or
public or private sewers now laid or constructed in or
along any of the streets, avenues, lanes, alleys or
public grounds of said city.
'(3)
That said company will restore any and all streets,
avenues, lanes, alleys and public grounds in which it may
lay pipes, or which it shall disturb or interfere with in
laying pipes, to as good condition as they were before
the laying of said pipes.
'(4)
That said company will, without delay, remove from the
streets, avenues, lanes, alleys and public grounds all
dirt or rubbish caused by the laying of said pipes.
'(5)
That said company will reimburse said city for all money
expended in restoring any street, avenue, lane, alley or
public place, or any part thereof, to as good condition as
the same was before the same was opened for the purpose of
laying pipes therein; and for all money expended for
clearing away any dirt or rubbish caused by the laying of
pipes, as aforesaid, where said company has failed to so
restore the condition of any street, avenue, lane, alley or
public place, or to remove such rubbish or dirt within ten
days after receiving written notice from the city civil
engineer so to do.
'(6)
That it shall indemnify and save harmless the said city
from and against any and all claims, demands, suits or
liabilities of any kind that said city may be subjected to
or incurred by reason of or growing out of the opening of
said streets, avenues, lanes, alleys and public places, or
the laying of pipes therein, or of permitted or of having
such gas within
the city, or in the said pipes, or the doing of work
incident to this grant, or in consequence of injuries or
damages to persons or property by such gas, or by reason of
any explosion of such gas, or growing out of the failure of
said company to restore the streets, avenues, lanes, alleys
and public places as aforesaid, it being the intention that
said company shall be primarily liable as between it and
the city in all such cases.
'Sec.
3. The city council may, at any time, require the renewal
of said bond, when in its judgment it has become
insufficient.
'Sec.
4. Whenever said city shall determine to construct any
sewer in or along any street, avenue, lane, alley or public
place where any pipe of said company is laid, said company
shall, at its own expense, lower, elevate, change, or
remove any such pipe, so that such sewer may be constructed
as desired by the city.
'Sec.
5. All pavements, sidewalks, curbstones, gutters, streets,
lanes, alleys, avenues or public grounds disturbed or
injured by said company, in any manner or by any means,
shall at once be placed in as good condition as it was
before so injured or disturbed.
'Sec.
6. All work in laying or repairing pipes shall be
prosecuted in such a manner as not to interfere with the
use or travel upon the streets, avenues, alleys, lanes or
public places of said city, where it can be avoided, and
when such use is unavoidable obstructed by said company it
shall, with reasonable dispatch, repair and replace such
street, avenue, lane, alley, or public place.
'Sec.
7. All pipes, mains, and apparatus of every kind used by
said company shall be of the most improved design and
quality. All pipes shall be of standard weight, and be so
laid as not to interfere with the use of the streets,
avenues, alleys, lanes and public places after same are in
place.
'Sec.
8. In order to provide against gas that may escape from
high and low pressure mains and pipes from passing into
cellars, sewers and buildings, it shall be, and is hereby,
made the duty of said company to furnish and supply
perforated stop-box lids on all stop-boxes. Gauges showing
the amount of pressure on all natural gas lines shall be
erected in the city civil engineer's office, at the
expense of the company, and there shall be as many gauges
as are necessary to indicate the pressure upon all low
pressure lines in said city.
'Sec.
9. Said company shall at all times maintain pressure for
domestic use of not less than four ounces nor more than
eight ounces to the square inch, at the point of
consumption.
'Sec.
10. Any consumer within said city shall have the right to
require gas to be furnished by meter measurement, and not
by the schedule rates; in cases where a meter is used, said
company shall have the right to charge and receive any sum
not exceeding ten cents per thousand cubic feet, if paid
within ten days, or twelve and one-half cents per thousand
cubic feet, if not so paid, for the gas used. Such meter
shall be furnished and set in place upon the application of
any consumer, without cost to such consumer, by said
company; but said company shall be entitled to charge a
rent of three dollars per year in advance therefor.
'Sec.
11. For all manufacturing purposes, natural gas shall be
supplied and furnished at the option of the consumer.
First, at not to exceed seventy-five per cent of the cost
of coal; or, second, by special agreement, and in that
event, at the same rate to all, whether large or small
consumers, and in no case shall preference be given in
price to one consumer over another; or, third, by meter
measurements, not exceeding ten cents per one thousand
cubic feet, if paid within ten days, as heretofore
provided, the meter to be furnished and set by the company
without cost to the consumer, but at the same rent and
terms as heretofore named.
'Sec.
12. Said company may cut off the gas from any consumer in
case of ten days' default after bills are due in the
payment. But when payment is made, gas shall again be
furnished to such consumer, on his request.
'Sec.
13. Said company shall be compelled to furnish gas to all
applicants, whenever applied for. Said company shall,
within ninety days after being ordered so to do by the
council, lay pipes in any streets, lanes, avenues, alleys
or public places, contiguous to streets, etc., where their
pipes are
then laid, provided that, in the opinion of said city
council, the amount of gas consumed by such parties will
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