In short, what had been delegated to the] have come to a pretty pass when the police municipality had been denied to the state. power may be successfully invoked to enable This express grant of the people of the state a party to escape or avoid any portion of a to the people of the municipality is there- just obligation under a contract validly enfore clearly and conclusively an exclusive tered into, as this contract was, and as all grant, not only of "all powers of local self-parties believed it to be and operated under government," in the general sense, but spe- it, for more than 15 years. These two concifically of the power to contract for the stitutional provisions, one national the other product or service of any public utility fur-state, are so obvious and obligatory upon this nishing a product or service to the municipality or its inhabitants; and neither the Legislature or any branch of the government other than the grantee of the Constitution may alter, modify, or in any wise exercise such power. If it be otherwise, what the principal, the people, do may at any time be undone by the agents or the people, the Legislature, the courts, or a board or commission of the state.

court that it is difficult to understand how there could be any division of opinion about their plain and potential application.

This drawing of distinctions on the surface by courts, where there are no differences in substance, is the proximate cause of much of the confusion and uncertainty of the law, much of the confusion and uncertainty as to Constitutions and courts. We will never get back to the safeguard of constitutional govOur judicial duty to support and sustain ernment until we permit to the full the natthese several provisions of the state and na-ural and ordinary meaning of the people's tional constitutions is specifically required by language in the operation of the people's our oaths. These oaths, however, do not re- law. What the Constitutions prohibit courts quire us to support any decision of any must not permit by any legal legerdemain. court or any legislative act of the General Assembly of the state of Ohio, especially where the same is repugnant to our organic law, our Constitution.

JONES, J.

(dissenting). The judgment

in this case is supported by a bare majority, who are unable to agree upon a syllabus. An inspection of the opinions supporting it discloses a divergence among the three judges announcing their individual opinions. And it is not clear why the Ohio constitutional amendment of 1912 has been referred to, for it may be conceded that the validity of the contract in question, as stated by JOHNSON, J., is to "be determined by the law in existence at the time it was made."

We have applied this principle to safeguard the jurisdiction of our court. Cincinnati Polyclinic v. Balch, 92 Ohio St. 415, 111 N. E. 159; Wagner v. Armstrong, 93 Ohio St. 443, 113 N. E. 397. We have applied this principle to safeguard the right of candidates for public office, and the right of the people to elect them to the same. Fulton v. Smith, 99 Ohio St. 230, 124 N. E. 188. We have applied this principle with reference to the In the present case the judgment of the constitutional classification of cities. City of majority is based upon the fact that in 1899 Elyria v. Vandemark, supra. We have also a municipality had, by virtue of a consent applied it in numerous other cases involving statute, the power to fix a maximum rate essentially the same principle. Why should for a period of years by an agreement bewe not apply this same principle in safe- tween itself and the public utility, and thereguarding the rights of the people, 3,000,000 by nullify the state's power thereafter to fix and more of them, in our municipalities, who the telephone rates through its Commission. use the service of the public utility com- Were the state not a party attempting to inpanies, pay for said service, police said serv-voke the jurisdiction of its Commission in the ice, and are solely and directly affected by such service by virtue of the fact that they are a municipal corporation?

I have not thought it worth while to deal with the various statutory provisions involved in this case, further than heretofore mentioned. A statute cannot exceed the constitutional delegation of power, nor a constitutional denial of power. It is therefore to the Constitution we must look for the people's rights as well as for those of the telephone company.

exercise of its sovereign power, the application of the authorities cited in the majority opinions would be germane. But the decision is predicated upon the following erroneous assumptions:

First. It overlooks the fact that the state is here seeking to exercise its own powers, and the question involved is not what obligations may have existed between the contracting parties, inter sese, arising out of their rate contract.

Second. It mistakenly assumes that the conduit consent statute gives the city and the utility the right to fix rates which the state is powerless to change.

Much has been said in behalf of the telephone companies about "bartering away" the police power; that the state may not do such a thing. This, after all, is only a play In 1899 a franchise and maximum rate upon words, because it is self-evident that contract between these parties was entered the state and all of its political agencies into. It is nowhere claimed that there was must be held to faithfully and fully observe any express power of rate regulation of teleall its contractual obligations, and things phone companies resting in the municipality

(133 N.E.)

at the time the contract was made. The only authority given the municipality at that time was contained in section 9197, General Code. That section is as follows:

"Any company * in any city or village in this state, may construct and maintain

** *

to construct their lines in municipalities from the state; that municipalities have only the power to agree with telephone companies as to the mode of use and for such compensation only as may be necessary to restore the streets to their former state of useful

ness. conduits and other fixtures for containing, protecting and operating such wires in the streets and public ways of such city or village in the state when the consent of such city or village has been obtained therefor."

"They have not power to exact or receive compensation by way of free telephone service for themselves or for citizens, or to fix rates for telephone charges."

This case has not been overruled. Just one year earlier this court, in the case of City of Findlay v. Findlay Home Telephone Co., reported without opinion in 70 Ohio St. 507, 72 N. E. 1156, affirmed the circuit court decision of Macklin against the same company (Macklin v. Home Telephone Co., 1 C. C. [N. S.] 373, 14 C. D. 446), which had upheld the same principle.

The majority opinion holds that, by virtue of this consent statute, empowering the city to grant or withhold its consent to the telephone company, the municipality had as incident thereto the right also to contract with reference to the rates which should govern during the time of the franchise. It has been uniformly held that the regulation of rates is a police power, that the police power is one of the sovereign powers of the state, and This is not a case where a contract has that this power cannot be renounced un- been entered into between the parties by less the renunciation is expressed in clear virtue of express authority given to fix rates, and unequivocal language. State ex rel. as with other utilities. This is a case where City of Toledo v. Cooper, County Auditor, no authority has been expressly granted 97 Ohio St. 86, 119 N. E. 253; Milwaukee other than that consent may be given by Electric Ry. & Light Co. v. Railroad Comm. the municipality to the utility for the occupaof Wisconsin, 238 U. S. 174, 35 Sup. Ct. tion of its streets by a conduit. Where stat820, 59 L. Ed. 1254; Union Dry Goods Co. utes of this character have been under conv. Georgia Public Service Corp., 248 U. S. sideration by the courts it has uniformly 372, 39 Sup. Ct. 117, 63 L. Ed. 309, been held that, where the state or its Com9 A. L. R. 1420; Home Telephone & Tele- mission is involved, grants to a municipality graph Co. v. City of Los Angeles, 211 U. S. by a state Legislature enabling it to grant 265, 273, 29 Sup. Ct. 50, 53 L. Ed. 176; Port- franchises either by its consent or by the land Ry., Light & Power Co. v. City of Port-imposition of terms or conditions do not emland (D. C.) 210 Fed. 667, 671; Stone v. Far-power the municipality to fix rates beyond mers' Loan & Trust Co., 116 U. S. 307, 6 the control of the state thereafter to change. Sup. Ct. 334, 388, 1191, 29 L. Ed. 636; Chicago Railways Co. v. City of Chicago, 292 Ill. 190, 195, 126 N. E. 585; and City of Richmond v. Chesapeake & Potomac Telephone Co., 127 Va. 612, 105 S. E. 127.

In 1899 there were other public utilities with which municipalities were granted the express power of contract, with reference to rates, but no such statute appears governing rate contracts made with telephone companies. It has been uniformly held in this state that municipalities have only the powers expressly granted by the Legislature or those impliedly necessary to carry such express powers into effect. Townsend v. City of Circleville, 78 Ohio St. 122, 84 N. E. 792, 16 L. R. A. (N. S.) 914; Ravenna v. Pennsylvania Co., 45 Ohio St. 118, 12 N. E. 445; and Ohio Electric Ry. Co. v. Village of Ottawa, 85 Ohio St. 229, 237, 97 N. E. 835.

It has been decided by the Supreme Court of this state in two cases, one reported with and the other without opinion, that, under our statutes affecting telephone rates, municipalities do not have the right to fix rates for telephone charges. In Farmer v. Columbiana County Telephone Co., 72 Ohio St. 526, 74 N. E. 1078, decided in 1905, it was held that telephone companies obtain their power

And, in connection with this feature of the case, the majority opinions clearly ignore the later cases upon this subject, where this question arose under exercise of the reserve powers of the state acting through its commission. The principle herein contended for is announced both by state and federal courts as will be seen by an inspection of the following cases: Home Telephone & Telegraph Co. v. City of Los Angeles, 211 U. S. 265, 29 Sup. Ct. 50, 53 L. Ed. 176; City of Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394, 39 Sup. Ct. 526, 63 L. Ed. 1054; Producers' Transp. Co. v. R. R. Comm. of California, 251 U. S. 228, 40 Sup. Ct. 131, 64 L. Ed. 239; Puget Sound Traction, Light & Power Co. v. Reynolds, 244 U. S. 574, 37 Sup. Ct. 705; Columbus Ry. Power & Light Co. v. City of Columbus, 249 U. S. 399, 39 Sup. Ct. 349, 63 L. Ed. 669, 6 A. L. R. 1648; Union Dry Goods Co. v. Georgia Public Service Corp., 248 U. S. 372, 39 Sup. Ct. 117, 63 L. Ed. 309, 9 A. L. R. 1420; Milwaukee Elec. Ry. & Light Co. v. Railroad Comm. of Wisconsin, 153 Wis. 592, 142 N. W. 491, L. R. A. 1915F, 744, Ann. Cas. 1915A, 911; People ex rel. Village of South Glenn Falls v. Public Service Comm., 225 N. Y. 216, 121 N. E. 777; Chicago Rys. Co. v. City of Chicago,

292 Ill. 190, 126 N. E. 585; Central Union | proper authorities shall determine," etc. Telephone Co. v. Indianapolis Telephone Co., Justice Day, at page 183 of 238 U. S., at (Ind.) 126 N. E. 628, 630; City of Washing- page 823 of 35 Sup. Ct. (59 L. Ed. 1254), ton, Ind., v. Pub. Service Comm. (Ind.) 129 quoted the following from the opinion of the N. E. 401; Hoyne, State's Atty., v. Chicago chief justice in a former Wisconsin case: & Oak Park Elevated Ry. Co., 294 IN. 413, 128 N. E. 587; City of Richmond v. Chesapeake & Potomac Telephone Co., 127 Va. 612,

"No specific authority having been conferred on the city to enter into the contract in question, the right of the state to interfere whenever the public weal demanded was not abrogated. The contract remained valid between the parties to it until such time as the state saw fit to exercise its paramount authority, and no longer. To this extent, and to this extent only, is the contract before us a valid subsisting obligation. It would be unreasonable to hold that by enacting section 1862, Stats. 1898, or section 1863, Stats. (Supp. 1906; Laws of 1901, c. 425), the state intended to surrender its governmental power of fixing rates. That power was only suspended until such time as the state saw fit to act."

A similar question arose in the case of City of Winchester v. Winchester Waterworks Co., 251 U. S: 192, 40 Sup. Ct. 123, 64 L. Ed. 221. There a Kentucky statute provided that the board of council of a municipality may grant a right of way over public streets to any railroad or street railroad company "on such conditions as to them may seem proper," etc., Ky. St. § 3490, subsec. 25. Justice Day in that case says of that

statute:

"This language is certainly very far from that express authority to regulate rates, which is essential in order to enable municipalities so to do."

In September, 1900, the village of Glenn Falls granted the gas company the right to use the streets of the village for the term of 50 years, and provided that, as a consideration therefor, the company should charge no greater rate than $1.25 per 1,000 cubic feet for illuminating or fuel gas. In August, 1917, the company increased its rate to $1.50 per 1,000 cubic feet. Thereupon, in the following January, the village of Glenn Falls made complaint to the Public Service Commission, asking that the gas company be restrained from raising its rates above $1.25 We can see no difference between a statute per 1,000 cubic feet, alleging that the fran-imposing "terms and conditions" and a statchise of 1900 constituted a valid and bind-ute imposing "consent." If anything, the ing contract for the full term of 50 years. former implies greater municipal authority. The question determined by the New York Court of Appeals was whether the Public Service Commission had the power, under the circumstances mentioned, to regulate the price of gas. It was held that, rate regulation being a matter of police power, the Public Service Commission had authority to regulate charges made by the gas company, distinguishing the case of Matter of Quinby v. Public Service Comm., 223 N. Y. 244, 119 N. E. 433, 3 A. L. R. 685, and reversing the Appellate Division, which had held that the Public Service Commission had no power over the matter, and had granted the demand of the village that the company should be prohibited from charging more than the

rate fixed in 1900.

In the case of Milwaukee Electric Ry. & Light Co. v. Railroad Comm. of Wis., 238 U. S. 174, 35 Sup. Ct. 820, 59 L. Ed. 1254, the Supreme Court of the United States had under consideration the Wisconsin statute, which provided that a municipal corporation might grant to any corporation the right to construct, maintain, and operate street railways and their use "upon such terms as the

However, both relate to manner of occupancy, and cannot, by any sophistry, relate to the fixing of rates. Whether one term or the other is used, how is it possible to say that the state in either case has renounced its own power of rate fixing "in clear and unequivocal language?" Counsel cannot find a statute anywhere wherein a municipality has been granted power over telephone rates. The statutes of Ohio do grant explicit power of rate fixing as to other various utilities. And the very lack of such granted power as to telephone companies is a strong argument that none was intended.

In the case of Chicago Rys. Co. v. City of Chicago, 292 Ill, 190, 126 N. E. 585, it was

held that

The "provision of Mueller Law providing that city authorities may consent to location or construction of street railroad upon street for period not exceeding 20 years, upon such terms ities deemed in public's best interest, does not not inconsistent with the act as the city authorconfer upon the city authorities the right to contract with railway company for rates of fare for 20-year period free from legislative control."

(133 N.E.)

Cartwright, J., in that connection says, at page 200 of 292 Ill., at page 589 of 126 N. E.: "It is perfectly clear to us that the statutory provision that consent may be granted by corporate authorities to locate or construct a street railroad upon or along any street for any period not longer than twenty years, upon such terms and conditions, not inconsistent with the act, as the corporate authorities shall deem for the best interests of the public, does not clearly and unmistakably confer upon the corporate authorities the right to contract with the street railway company for rates of fare for a period of twenty years free from legislative control."

As apropos to this feature of the case, distinguishing some of the cases cited in the majority opinion, the judge continues, at page 201 of 292 Ill., at page 589 of 126 N. E.: "It may be true that the constitutional and statutory provisions imply authority of a municipality to make an agreement with the public utility as to rates binding on the parties to the contract so that neither one can repudiate the contract with the other and it can only be abrogated by them by mutual consent, but that is a very different proposition from authority to deprive the state of its right to regulate fares, and lower them if found to be excessive and more than reasonable compensation for the service performed, or to raise them if so low as not to be fair, just and reasonable to the public utility."

for a period of years, cannot deprive the legislative authority of power to prescribe and enforce the payment of a higher rate of charge for such service within the period covered by the contract, where the state has in no way surrendered that right, has been declared so often in this and other jurisdictions that we shall content ourselves with citing a few of

the decisions."

Some 20 decisions are accordingly appended to his opinion.

In the case of the City of Richmond v. Chesapeake & Potomac Telephone Co., 127 Va. 612, 616, 105 S. E. 127, 128, the "city having the right under its charter and by the general law (Code 1887, § 1287) to prohibit any telephone company from occupying the streets of the city with its lines without the consent of the council, by ordinance of October 15, 1901, granted a franchise" and fixed a rate for 30 years, and it was held by the Supreme Court of Virginia that this consent did not deprive the state of the power to change the rate fixed in the ordinance, and that the Commission had the power to raise the rates above those fixed by the franchise.

Citation of further authorities upon this question would only tend to display the overwhelming weight of opinion in its support. Counsel for the city cite the states of Michigan, Maryland, Kentucky, Texas, Kan

wherein the courts of last resort of those respective states, under statutes giving mu

Section 4, article 11, of the Illinois Con- sas, Indiana, Pennsylvania, and New York, stitution, provides: "No law shall be passed by the General As-nicipalities authority to consent, decided that, sembly granting the right to construct and operate a street railroad within any city, town, or incorporated village, without requiring the consent of the local authorities having the control of the street or highway proposed to be occupied by such street railroad."

On October 23, 1920, in Hoyne, State's Atty., v. Chicago & Oak Park Elevated Ry. Co., 294 Ill. 413, 128 N. E. 587, the Supreme Court of Illinois held that such provision of the constitution "neither abridges nor denies the state's right to regulate or fix the rates for street railway companies."

In the Indiana case, City of Washington, Ind., v. Public Service Comm., 129 N. E. 401, in speaking of the question of consideration, Ewbank, J, said that the case was controlled, so far as a question of rate making is concerned, "by the many cases which have held that a mere grant of power to consent that a public utility company shall use the city streets does not include power to make a contract that such company shall be exempt from further regulation of its charges, or any of them." And the learned judge continues:

"The rule that a contract by a city, or by a private corporation or individual, fixing the rate at which a public utility company shall perform a service to such contracting party,

as incident thereto, a municipality had the
right to fix rates. Mahan v. Michigan Tele-
phone Co., 132 Mich. 242, 93 N. W. 629;
Boerth v. Detroit City Gas Co., 152 Mich.
654, 116 N. W. 628, 18 L. R. A. (N. S.) 1197;
Charles Simons Sons Co. v. Maryland Tele-
phone & Telegraph Co., 99 Md. 141, 57 Atl.
193, 63 L. R. A. 727; Moberly v. Richmond
Telephone Co., 126 Ky. 369, 103 S. W. 714;
City of Emporia v. Emporia Telephone Co.,
88 Kan. 443, 129 Pac. 187; Muncie Natural
Gas Co. v. City of Muncie, 160 Ind. 97, 66
N. E. 436, 60 L. R. A. S22; Allegheny (City)
v. Millville, Etna & Sharpsburg Street Ry.
Co., 159 Pa. 411, 28 Atl. 202; and Rochester
Telephone Co. v. Ross, 195 N. Y. 429, 88 N.
E. 793. These early cases from the states
named can be readily distinguished by later
decisions of the courts of those states. In
the first place, the controversies involved in
those decisions arose largely before the com-
missions of the various states were created,
through which the state exercised its police
power to regulate the rates of public utilities.
The earlier cases cited involve controversies
between the parties themselves, to which the
The distin-
state itself was not a party.
guishing principle is stated by Mr. Justice
Day in Milwaukee Elec. Ry. & Light Co. v.
Railroad Comm. of Wisconsin, 238 U. S. 174,

Let us now take the later decisions from the same states upon the same question, where the litigation arose between munici-use the city streets does not include power palities and the state Commission.