Argument for Defendant in Error. solemn contract be relieved of the debt and duty it thus owes to the public, shall it be said that it may by mere declaration of its own evade its obligation to the public? More,-while still retaining its power of eminent domain, with the right to exercise it at will, may it thus keep the consideration with one hand and avoid the corresponding duty with the other? The significant words of the court in the case of Attorney General v. Railroad Cos., 35 Wis., 425, which are really a quotation from the opinion in Munn v. Illinois, 94 U. S., 113, are not to be lost sight of: "But so long as he maintains the use, he must submit to the control." This does not mean that he lop off the use by sections and claim a corresponding immunity from control. The language of the syllabus in Munn v. Illinois is: "When private property is devoted to a public use, it is subject to public regulation." Concerning the argument of the plaintiff's brief that its right to occupy the street "is a franchise, the privilege of which can only be granted by the state or by a municipality or some other local agency acting under legislative authority," we desire to say, it is true that the franchise comes from the state, but the act of the local authorities who represent the state, by its permission and for the purpose, constitute the act upon which the law operates to create the franchise. It is the acceptance of the option which completes the contract. Morristown v. Telephone Co., 115 Fed. Rep., 304; Allegheny v. Gas & Pipeage Co., 172 Pa. St., 632. Argument for Defendant in Error. As to the power of a quasi-public corporation to abandon its obligation of service, or an integral part of it: The grant of a right to supply gas to a municipality is the grant of a franchise, in consideration of the performance of a public service. Gas Co. v. Light Co., 115 U. S., 650; Gas Co. v. Gas Co., 115 U. S., 683. Contracts whereby corporations disable themselves from the performance of their charter duties are void as against public policy. Thomas v. Railroad Co., 101 U. S., 83; Railroad Co. v. Winans, 58 U. S., 30; State v. Railroad Co., 29 Conn., 538. A charter is granted to a quasi-public corporation in contemplation of the anticipated benefit to the public from the completion of the entire work, or the performance of the whole service authorized, and the corporation is without power to abandon either in part. Cohen v. Wilkinson, 1 Mac. & G., 481, 12 Beav., 125, 18 L. J. Ch., 378, 13 Jur., 641. A quasi-public corporation cannot alienate its property without the express consent of the legislature. Gibbs v. Gas Co., 130 U. S., 396; Gas Co. v. Sims, 43 Am. St. Rep., 105, 37 Pac. Rep., 1042; Gas Light Co. v. Gas Co., 35 Am. St. Rep., 385; Gas Light Co. v. Gas Light Co., 2 Am. St. Rep. 124; St. Louis v. Gas Light Co., 5 Mo. App. 484; Stanton v. Allen, 5 Denio, 435. A grant of a public franchise is a contract between the state and the grantee, by which the latter undertakes to perform certain public duties, from the performance of which he cannot withdraw or release himself without the consent of the other contracting party. Transportation Co. v. Car Co., Argument for Defendant in Error. 139 U. S., 24; Railroad Co. v. Brown, 17 Wall., 445; Black v. Canal Co., 22 N. J. Eq., 130; Railroad Co. v. Winans, 17 How., 30; Kenton County Court v. Turnpike Co., 10 Bush, 529; Commonwealth v. Smith, 10 Allen, 448; Thomas v. Railroad Co., 101 U. S., 83. A corporation cannot contract away a part of its franchise duty. Ferry Co. v. Railroad Co., 5 Mo. App., 347. The charter of a gas company is a contract between itself and the state granting it, and it cannot be impaired by the state or the agents of the state. Gas Co. v. Light Co., 115 U. S., 650; Gas Co. v. Gas Co., 115 U. S., 683; Gas Light Co. v. Des Moines, 72 Fed. Rep., 829. A corporation accepting a grant subject to the powers reserved to the legislature, must be held to have assented to such reservation. Gas Light Co. v. Hamilton, 146 U. S., 258; 14 Am. & Eng. Ency. Law, (2 ed.), 922. A railroad company may be made to operate a portion of its line which it has ceased to use and has undertaken to abandon; and mandamus is a proper remedy in such case. Railroad Co. v. Hall, 91 U. S., 343; State v. Railroad Co., 29 Conn., 538. In the case of an attempted abandonment of its charter duties by a corporation, the state may advance the remedy by mandamus, by indictment or by proceedings to annul the corporation, at the election of the state, the corporation owing a duty to the public to exercise the franchise granted to it in its entirety. People v. Railroad Co., 24 N. Y., 261. Opinion of the Court. And it cannot abandon a part of its public duties and thus incur a forfeiture at its will and pleasure. The state may enjoin a railroad from taking up its tracks, and prevent its attempt to avoid its charter duty to the public. State, ex rel., v. Railroad Co., 36 Pac. Rep., 747; State v. Railroad Co., 7 Neb. 357; People v. Railroad Co., 10 N. E. Rep., 657; Railroad Co. v. Railroad Co., 63 Me., 269; Railway Co. v. Mining Co., 68 Ill., 489; Gates v. Railroad Co., 53 Conn., 333. Mandamus will lie to compel a street railway company to maintain its road for the performance of a service due to its patrons. State, ex rel., v. Traction Co., 43 Atl. Rep., 715; State, ex rel., v. Railway Co., 53 Pac. Rep., 719; People v. Railroad Co., 10 N. E. Rep., 657; Electric Co. v. Tacoma, 50 Pac. Rep., 592; Belleville v. Railway Co., 38 N. E. Rep., 584; Pierce v. Emery, 32 N. H., 504. The right of the plaintiff to compel the defendant to perform the franchise duty is upheld in Ohio by Gas Light Co. v. Zanesville, 47 Ohio St., 35. As to the inprofitableness of a contract relieving from its performance, see Marble Co. v. Ripley, 10 Wall., 961; Fry on Specific Performance, 116. As to whether a corporation dissolves itself by defeating the end for which it was created, see Town v. Bank, 2 Douglas (Mich.), 530. For a general discussion of the rights and obligations of the parties, see Dillon on Municipal Corporations, 691-697. DAVIS, J. This case was orally argued and submitted six months ago; but, on account of its great importance to the public as well as to all public Opinion of the Court. service corporations, we have given it unusual consideration and we have reached our conclusions only after most careful deliberation. The chief question for solution here is whether the plaintiff in error may, under the circumstances disclosed in the record, discontinue the furnishing of gas to the city of Akron and its inhabitants and take away from the streets its mains and pipes and, in short, its whole plant. In seeking an answer to this question it will be necessary first to consider the nature of the franchise granted to the plaintiff in error by its charter and the extent of the obligation imposed upon it by its acceptance of the city ordinance under which it entered the city and served the public therein until September 26, 1908. The distinction between franchises, privileges or powers of a corporation, on the one hand, and its duties, obligations or liabilities, on the other hand, is elementary. There are no obligations imposed upon the plaintiff in error by its charter, or by the statutes under which it was granted, except the requirement that it shall have a principal office to be located at Cleveland and that the company's main line shall commence at points on the Ohio river and run thence through certain counties to Cleveland in Cuyahoga county. These with the further obligation imposed by statute (Section 6780, Revised Statutes) that the company shall allow no lapse in the exercise of its franchise of the extent of five years, constitute all of the positive conditions, so far as we are now concerned, which are imposed upon this company. It seems to us that when to this association of persons was granted the right to be a corporation |