(133 N.E.) the English law, it is yet the firmly recog-, nized and followed doctrine. A long line of decisions may be found in the courts of last resort of many states and the United States. The most recent pronouncement along this line by the Supreme Court of the United States is the case of Lower Vein Coal Co. v. Industrial Board of Indiana, decided February 28, 1921, 255 U. S. 144, 41 Sup. Ct. 252, 65 L. Ed. --, where section 18 of the Workmen's Compensation Act of Indiana was held constitutional as against repugnancy claimed under the Constitution of that state and the United States. Justice McKenna, delivering the opinion, says: "The principle of law involved and the power of a state to distinguish and classify objects in its legislation have been too often declared, too abundantly and variously illustrated, to need repetition." And speaking further of the discretionary power of the Legislature, the right for the exercise of a judgment peculiarly and exclusively its own, says: "There is something more in a compensation law than the element of hazard, something that gives room for the power of classification which a Legislature may exercise in its judgment of what is necessary for the public welfare, to which we have adverted, and which cannot be pronounced arbitrary because it may be disputed and 'opposed by argument and opinion of serious strength.'' In the case of Budd v. New York, 143 U. S. 517, 544, 12 Sup. Ct. 468, 476 (36 L. Ed. 247), it is held: "The business of elevating grain is a business charged with a public interest, and those who carry it on occupy a relation to the community analogous to that of common carriers. * And he must submit to be controlled by public legislation for the common good." The Supreme Court of Wisconsin has passed upon the constitutionality of the public utilities act of that state in State ex rel. Kenosha Gas & Electric Co. v. Kenosha Electric Ry. Co., 145 Wis. 337, 129 N. W. 600, decided in 1911. The court held: "While the Legislature cannot empower the railroad rate commission to exercise legislative power, it may clothe it with authority to administer a law requiring, as an incident to the administrative duty, the ascertainment of facts such as is required in passing upon an application for a certificate of convenience and necessity under the public utility law." In the case of Idaho Power & Light Co. v. Bloomquist, 26 Idaho, 222, 141 Pac. 1083, Ann. Cas. 1916E, 282, the Supreme Court of Idaho says: "All property devoted to public use is held subject to the power of the state to regulate or control its use in order to secure the general safety, health and public welfare of the people, and when a corporation is clothed with rights, 133 N.E.-35 powers and franchises to serve the public, it becomes in law subject to governmental regula*Formerly competition and control. tion was supposed to be the proper means of protecting the public and promoting the general welfare in respect to service of public utility corporations, but experience has demonstrated that public convenience and public needs do not require the construction and maintenance of numerous instrumentalities in the same locality, but, rather, the construction and maintenance only of those necessary to meet the public necessities, when such utilities are properly regulated by law." In the same case, in speaking of the public utility act of that state, the court held: "Under the provisions of said act, unregulated competition is not needed to protect the public against unreasonable rates or unsatisfactory service; and there can now be no justification for unregulated competition or a duplication of utility plants under the pretense of preventing monopoly." The Supreme Court of Indiana, in a recent case, decided in 1918, entitled Farmers' & Merchants' Co-operative Telephone Co. v. Boswell Telephone Co., 187 Ind. 371, 119 N. E. 513, held: "Section 10052t3, Burns' 1914 (section 97, Acts 1913, p. 167), prohibiting the licensing of public utilities for duplication of service, in the absence of a declaration of public necessity therefor, does not create a monopoly in the utility granted the first franchise, since the privilege is not exclusive, the state having power to grant another whenever public welfare would be served thereby." The court further held: This "is not a deprivation of any inalienable right to engage in a lawful business or to hold property, and is not repugnant to the Bill of Rights * securing the rights of life, liberty and pursuit of happiness" and "Is not repugnant to the Fourteenth Amendment to the federal Constitution." And it has come to be settled, as civilization develops, and as new inventions and devices take their place in society, that wherever the public is concerned and the welfare of the people is in issue, technical constitutional invasions must give way. Whether or not the principle of permitting or favoring a monopoly in the field in question is one sound in the political and economical view is one obviously for determination by the legislative branch of the government, and not by the judicial branch. In this state the Legislature has made that determination in certain fields by various provisions in the public utilities act. The Legislature having spoken, and having expressed, apparently at least, the economic and political view of the people of the state, it is not for the judicial branch to substitute its theory by holding such legislative expression repugnant to what the courts may conceive to be the spirit underlying the doctrine. Finding as we do that no specific grant of any section of the Constitution of Ohio or of the Constitution of the United States has been invaded, the judgment of the court of appeals in this case is therefore reversed, and the cause is remanded to that court for further proceedings according to law. Judgment reversed. Public utilities by this act are divided into two major classes: Class 1. "Such public utilities as are, or may hereafter be owned or operated by any municipality." All such utilities are expressly excluded from the jurisdiction of the Commission by section 614-2a. With this exclusion, what residue remains ROBINSON, JONES, and MATTHIAS, for class 2? The answer is: JJ., concur. Class 2. Such public utilities as are or JOHNSON, J., concurs in propositions 1 may hereafter be owned or operated priand 2 of the syllabus. vately. WANAMAKER, J. (dissenting). I hold that the judgment of this court will not square with the justice of the Constitution. I hold that the judgment directly violates the statutes creating the Public Utilities Commission and defining its jurisdiction and powers. I hold that the Commission has no juris diction under the statute as to the class of telephone companies represented by the defendant in error, by virtue of the express provisions and exclusions declared by the plain provisions of the statute itself. The Public Utilities Commission act names and defines the specific public utilities over which the jurisdiction of the Commission shall extend. This is done by the early sections of the statute, particularly sections 614-2 and 614-2a. The last section dealing with jurisdiction is section 614-8, which reads: "The Commission shall have general supervision over all public utilities within its juris diction as hereinbefore defined," etc. This last section expressly and conclusively closes and confines the jurisdiction of the Commission to these two limitations: (1) Public utilities within its jurisdiction. (2) As hereinbefore defined. Subclass 1. Privately "operated not for profit." This subclass is also expressly excluded from the jurisdiction of the Commission, under section 614-2a. That leaves as a residue for the jurisdiction of the Commission: Subclass 2. Privately "operated for profit." If this be the correct measure of the jurisdiction of the Public Utilities Commission, as defined and fixed by sections 614-2 and 614-2a, and the other jurisdictional subsections of the act, then the sole, single question under the statute is: Is the Union-Center Mutual Telephone Association, under the record of this case, operating a public utility for profit? Here is the crucial, critical question of this case, and it is so admitted in the majority opinion, which I shall refer to later. This was one of the leading issues made in the pleadings before the court of appeals, where this case was taken by the plaintiff on appeal. There the plaintiff, plaintiff in error here, was seeking an injunction against the defendant, and set forth its cause of action at great length and in much detail in its amended petition; but nowhere in that amended petition was it pleaded that the defendant company had a public utility that was operated "for profit." In the first defense, the answer directly and expressly makes an averment in the following language: "Defendant's plant is organized and will be operated not for profit." It does not read, "as herein before or hereinafter defined." The remaining sections of the act deal not with jurisdiction, but with "powers" in the exercise of that jurisdiction. This applies particularly to section 614-52, that likewise deals with powers over telephone companies, one of the thirteen classes defined as being within the jurisdiction of the Commission in section 614-2. It in no wise increases or decreases the jurisdiction as fixed by section 614-2a, but only grants pow-made an issue of fact between the parties uner for the exercise over such utilities as have theretofore been put within the jurisdiction of the Commission. An examination and survey of the several sections relating to jurisdiction may be summarized by the following classification, that will make plain and clear the language of the Legislature, or the legislative sense and intention, concerning the public utilities act, and the utilities over which that act should operate. Plaintiff in its reply took direct express issue with this averment, squarely denying the language used in the answer. That der the petition and the first defense. The language of the reply in that respect is as follows: "It denies "That the defendant's plant is organized and will be operated not for profit.'" The second defense pleaded the unconstitutionality of section 614-52, urging that the same was "Illegal and void, in that it tends to create a monopoly in restraint of competition, and is detrimental to the public (133 N.E.) welfare; that said section is unconstitution-profit? Does the filing of articles of incoral and void," in that it contravenes certain poration in which the declaration is made that sections of state and federal Constitutions. it is not for profit, and on which the charter There was also a third, fourth, and fifth is issued, govern or determine this question? defense that it is unnecessary here to conIs the issuance or nonissuance of capital stock sider. controlling, or is it whether a business is to be engaged in and operated with consideration of the character of that business, and the method of conducting it, that is the true test? "We think the latter." The court below has shown by its opinion, its journal entry, the briefs of counsel, the arguments of counsel-these all agreethat the second defense was the only question of law or fact decided by the court of appeals. If there be any doubt of that proposition, it will readily be dispelled by noting in the record plaintiff's motion for a new trial, the fifth ground of which reads: Why does this test become important? Because the majority opinion approves the classification under the statute that I have heretofore made, to wit, that this privately owned public utility is not within the jurisdiction if it be found that it is not "operated for profit." "The court erred in entering a finding and decree for the defendant and against the plain-safe and sound test. A few lines further on This test has my entire approval. It is a tiff without having heard the case upon merits, other than the constitutional question in the opinion it is again said: of section 614-52 of the General Code." its I hold, therefore, that the only question before this court at this time is the question heard and decided by the court of appeals to wit, the constitutionality of section 614-52, General Code. In my dissent I shall proceed, as far as pertinent, to follow the order of discussion appearing in the majority opinion. The opinion says: "In other words, it is the character of the business and the method of conducting that business that controls." This supreme test, as held by the majority opinion, is a complete repudiation of the doctrine announced by this court in Ashley TriCounty Mutual Telephone Co. v. New Ashley Telephone Co., 92 Ohio St. 336, 110 N. E. 959. The decision announced in that case is that it did not matter, quoting from the syl"As a public utility the defendant comes under labus, where it is said, "whether such comthe jurisdiction of the public utilities act, un-panies are organized for profit or not," they less it is taken out under one of the three are within the jurisdiction of the Commisexceptions mentioned in section 614-2a. Two sion under section 614 and subsections, esof these exceptions have no application what-pecially 614–52. ever to the defendant and may be discarded, as it is not a railroad or a municipally owned or operated utility. The next question then, is whether or not it is a public utility operated not for profit.'" Evidently the doctrine, and the reasons therefor, announced in the New Ashley Case, just cited, did not appeal to the majority of this court as sound and sufficient to support the holding in this case, and therefore a new statement of reasons, required by the Constitution, needs be made in this opinion. That was a direct and express issue raised by the pleadings in the court of appeals, and I am grateful to the majority opinion But after repudiating the logic of the New in this case for having admitted the crucial Ashley Case, which holds that it does not and decisive importance of this issue and matter whether “such companies are organizthat it must be determined before a just ed for profit or not" they are within the judgment can be rendered. I still deny, jurisdiction of the Commission, the opinion however, that this issue is before this court, undertakes by a strained, unnatural, and ilbecause it is still undecided below, because logical process of pretended reasoning to there has never been any hearing upon this demonstrate that the defendant company is issue in the court below, nor any decision a utility "for profit," in order to bring it thereon in the court below, and there was within the jurisdiction which the New Ashnothing before the court in the pleadingsley Case, supra, held to be unnecessary and or answer that could by any possibility have immaterial as to jurisdiction. measured up to "clear and convincing proof" The majority opinion after announcing required by law for injunctive relief. How- this test for the determination of whether or ever, having announced this as the, controlling question, the majority opinion proceeds to lay down the rule or principle by which it may be determined whether or not the defendant company "operates for profit" or "operates not for profit," as follows: "The next question then is whether or not it is a public utility operated 'not for profit.' How may it be determined whether a corporation or association is one for profit or not for not the defendant's utility is operated for profit or not for profit-which is clearly and unmistakably an issue of fact, for how can one determine the "character of the business and the method of conducting it" without going into the facts, customs, and methods showing the nature of that business, how it was operated-without any evidence whatsoever in the court below or here treats this whole matter as one of possible legal in ferences, guess, and conjecture, and finally, by "clear and convincing" evidence. I never concludes the whole matter as follows: understood that that burden rested upon the defendant. "We believe that taking into account the various representations made by this defendant in its statements and admissions, and applying statutory rules of law made applicable to that situation and condition, that this company from the very nature of its organization and existence is a public telephone company, a utility, and a common carrier, and, considering the nature and character of the business which it must engage in with the public as its patron, that such a business, no matter what the pretense may be, no matter what claims are advanced, in its very nature cannot be one operated in the true sense of the term 'not for profit.'" This paragraph is a genuine surprise, an astonisher, if you please, containing a newlydiscovered doctrine announced for the first time since this case was first argued in this court-and no brief or argument or even suggestion of any judge advanced the particular theory that the "various representations made by this defendant in its statements and admissions" have proven a good cause of action by clear and convincing evidence and have also destroyed all defenses under the statute. This new discovery, coming at this very late hour, is surely worthy of inspection and most careful analysis. I examined the opinion again and again with the utmost care to discover what the court had in mind, what "statements and admissions by the de in its fendant" have shown by clear and convincing Why even in an action at law brought be fore a justice of the peace, I always understood that a bill of particulars was required, and that no judgment could be rendered until such bill was filed, and that that bill of particulars had to be filed by the plaintiff, not by the defendant; the latter might remair silent; he was not called upon to furnish any proof. It would seem that in a case of this importance it would be necessary for some one, in behalf of the judgment, to point out these fatal suicidal "statements and admissions" of the defendant which give the plaintiff the right to a perpetual injunction, and which practically confiscate the property of the defendant. Moreover, these "statements and admissions" by the defendant must show the “character of that business, and the method of conducting it," the controlling test heretofore approved by the majority, and such “statements and admissions" must furthermore show that the defendant operates a utility "for profit." Here I appeal to the record as to these "statements and admissions" showing "the character of that business, and the method of conducting it." rendered in favor of the plaintiff in error. The judgment of reversal in this case is What does plaintiff in error say in its several briefs as to these "statements and admis sions" of the defendant as to the latter's business, upon which statements and admissions this court bases its judgment of reversal? This is the keystone of the legal arch erected to support this judgment. This arch is as strong as the keystone, and no stronger. I have before me the "supplemental joint What statement or what admission has de- brief for plaintiffs in error on reargument," fendant made, and where has it been made? bearing the following distinguished array of The opinion does not point it out; and why counsel: D. J. Cable, H. J. Booth, A. G. Aihas the opinion not pointed it out? Evident- gler, G. W. Sheetz, attorneys for the Local ly it must be somewhere in the record. So Telephone Company; J. D. Johnson, Myers far as the defendant is concerned, that rec- & Myers, attorneys for the Celina & Mercer ord, so far as it may bind it, is all contained County Telephone Company. in its "answer to the amended petition," composed of five defenses, in all about eight pages, and the answers to the interrogatories submitted by the plaintiff below, which answers are fourteen in number and about two pages of the record. It would seem to have been the part of propriety and prudence to have given a bill of particulars, setting forth these various "statements and admissions," which are evidently so simple and self-evident, and which in and of themselves constitute sufficient reasons for this judgment in conjunction with the "controlling test" heretofore announced in the majority opinion. I supposed this was an equitable action brought not by the defendant, but by the plaintiff. I always understood that when the plaintiff sought an injunction, the burden was upon him to show his right to such relief This brief bears the date, "Nov. 3rd, 1919," after the case had been twice argued in our court In view of these alleged suicidal "statements and admissions" on the part of the defendant, that the court holds it has made in the record, it will be pertinent to quote with exactness how the numerous and distinguished counsel of plaintiff view these statements and admissions. These statements and admissions must relate to this crucial test heretofore announced, "the character of that business and the manner of conducting it," and therefore must be limited somewhat to the public utility, the common carrier, the manner of operation, and whether or not it is one operated for profit. How reads the record as presented by the plaintiff in error's said counsel? Page 4 of that brief contains the following verbatim: (133 N.E.) Page 11 of the same brief contains further pertinent information touching the claims of the respective parties, and especially these suicidal statements of the defendant as charged in the majority opinion: "The Cranberry Mutual Telephone Company, | until it shall obtain permission or has the right defendant in error, is a corporation which was to do so." incorporated and organized in the year 1912 under the laws of Ohio, not for profit, and makes no charge whatsoever for services rendered by it, save and except that the expense incident to its operation is to be divided among the members thereof, each member paying his portion of such expense, proportioned to his use of the service. In other words, as shown by its name and by the findings of the court of appeals, it is a mutual company organized to furnish telephone service to its members and not for any other purpose." This deals with one of these companies. Page 5, and also a part of page 6 of plaintiff in error's brief contains the following verbatim: "The Union-Center Mutual Telephone Association, defendant in error, is 'a partnership association under the laws of the state of Ohio.'" The character of the defendant in error in this case, No. 16139, and the business for which it was organized, are more fully shown by interrogatories propounded by the plaintiff and answered by the defendant. We call special attention to the following interrogatories and the answers thereto, viz.: "3. If the defendant proposes to construct and operate a telephone exchange, does the defendant propose to permit the use of any of its telephone or any of its service by any person or persons other than the members of its company?" "The purposes for which the defendants were organized preclude them from entering into contracts for furnishing telephonic service to the municipalities or their inhabitants. "One of the defendants is a corporation organized not for profit, as a mutual telephone company; and the other is a partnership formed for the purpose of furnishing telephone service to its members. As to the Cranberry Mutual Telephone Company this is shown by the record in case No. 16130 and as to the Union-Center Mutual Telephone Association in case No. 16139. Neither of these companies will, or can be required to, furnish service to anyone except to members of its organization, and as a matter of fact the corporation, if it attempted to do so, would act ultra vires and would subject itself to an action for the forfeiture of its charter, while the partnership expressly states members of its association. The records disthat it will furnish service to no one except close that neither of them expects to furnish service either to the municipalities or the general public." Much more to the same effect might be quoted from plaintiff in error's numerous briefs as to these statements and admissions. of the defendant, but this would seem sufficient. Where does the court get any consolation out of the above to warrant the claim either that defendant telephone association is a real public utility, that it is operated as a common carrier, that it is serving the public "indiscriminately," or that it is "operated for profit?" I may be mentally blind or stupid, but I freely confess my inability to read in these statements and admissions of the defendant as quoted by the plaintiff in error, which the majority urge as good reasons for the rendition of a judgment in its favor; I say I am unable to square those statements with the contrary statements of this court upon the same subject-matter, by which this court undertakes to support the judgment which it now renders in favor of the plaintiff in er ror. to each other, and utterly repugnant and To me they are diametrically opposed irreconcilable to each other. Clearly upon the claims made by the plaintiff in error, above quoted from the record, the defendant is not a public utility, it is not a common carrier, or, if a public utility, it is clearly not operated for profit, but for the benefit of its members only, at actual cost, and in any and all events it is outside of the jurisdiction granted by the statute to the Public Utilities Commission. Boiled down, the court holds, in legal ef |