author: Donahue, J. Wanamaker, J., Jones, J.,

text:
    The State, ex rel. The Cleveland Telephone Co., v. The Court of Common Pleas of Cuyahoga County et al.

      Prohibition — Writ denied by supreme court — Power of common pleas court — To determine its own jurisdiction — Injunction — Telephone rates — Authority to establish — Public utilities commission or council of home-rule municipality.

    A writ will not be issued, prohibiting the court of common pleas from determining its own jurisdiction, where jurisdiction of the subject-matter of the action has been conferred upon that court by the laws of this state. (State, ex rel. The Hartford Life Ins. Co., v. Douds et al., 96 Ohio St., 604, and State, ex rel. Faber, v. Jones et al., Judges, 95 Ohio St., 357, approved and followed.)
    (No. 15844
    Decided April 30, 1918.)
    In Prohibition.
    The facts are stated in the opinion.

      Messrs. Tolies, Hogsett, Ginn & Morley and Messrs. Squire, Sanders & Dempsey, for relator.

      Mr. W. S. FitzGerald, director of law; Mr. William B. Woods and Mr. John D. Marshall, for defendants.
   Donahue, J.

The petition of the relator asks that a writ issue, prohibiting the common pleas court of Cuyahoga county from exercising jurisdiction in a cause pending in that court, in which cause it is sought to enjoin the relator from charging or collecting within the city of Cleveland any other or different rate for telephone service than that fixed by an ordinance of that city.

The common pleas courts of this state are courts of general jurisdiction. Under the provisions of' Section 4, Article IV of the Constitution of Ohio, they are capable of receiving and exercising to final judgment all judicial powers conferred upon them by the general assembly of this state.

Sections 11876 and 11877, General Code, vest in the common pleas courts authority to grant or refuse an injunction in an action in which an injunction is the proper remedy, or where it is necessary or incident to the relief sought. The only limitation on this authority is found in Section 549, General Code (103 O. L., 816), which section provides that no court other than the supreme court of this state shall have authority to “review, suspend or delay any order made by the [public utilities] commission, or enjoin, restrain or interfere with the commission or any member thereof in the performance of official duties.”

It appears from the petition of relator that the public utilities commission of Ohio has made no order fixing telephone rates to be charged in Cleveland ; that that commission and no member thereof is a party to cause No. 160905 on the docket of the common pleas court of Cuyahoga county; and that the public utilities commission is proceeding to hear and determine the questions arising upon the schedule of rates filed by the relator and the protests and complaints against the reasonableness of such rates. It follows, therefore, that under the provisions of Sections 11876 and 11877, General Code, the common pleas court of Cuyahoga county has jurisdiction of the cause of action pending before it, and is entitled to exercise that jurisdiction to final judgment. The relator, if aggrieved by such final judgment, has a full and adequate remedy at law.

It was held by this court in the case of State, ex rel. Nolan, v. ClenDening et al., 93 Ohio St., 264, that “The writ of prohibition is a high prerogative writ, to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary and adequate remedy.” The third paragraph of the syllabus in that case declared that the purposes of this writ are “to keep such courts or tribunals within the limits of their own jurisdiction.”

In the case of State, ex rel. Garrison, v. Brough, 94 Ohio St., 115, it was declared by this court, in the first paragraph of the syllabus, that “The writ of prohibition is an extraordinary legal remedy whose object is to prevent a court or tribunal of peculiar, limited or inferior power from assuming jurisdiction of a matter beyond its cognizance. The writ cannot be made to serve the purpose of a writ of error to correct mistakes of the lower court in deciding questions of law within its jurisdiction.” In the opinion it is said (page 123) that a writ of prohibition “does not lie to prevent a subordinate court from deciding erroneously or from enforcing an erroneous judgment in a case in which it has a right to adjudicate. In all such cases the aggrieved party must pursue the ordinary remedies for the correction of errors.” Again, in the opinion, on page 129, it is said: “It was not contemplated by the people, when they adopted the amendment referred to, that this court would interfere with the proper exercise by inferior courts of the functions and the jurisdiction conferred upon them under the provisions of the constitution.”

In the case of State, ex rel. Faber, v. Jones, 95 Ohio St., 357, it was held that “A writ of prohibition will not be issued to prevent an inferior court from enforcing an erroneous judgment in a case which it had a right to adjudicate.”

In the case of State, ex rel. Barbee, Exr., v. Allen, Probate Judge, 96 Ohio St., 10, a writ of prohibition was refused, for the reason, as stated in the first paragraph of the syllabus in that case, that “The probate court, vested by the constitution with jurisdiction in probate and testamentary matters and recognized as competent to decide its own jurisdiction, has power to determine whether a will is entitled to probate and whether letters testamentary thereon shall issue.”

It is said further, in the second paragraph of the syllabus, that in such action the judgment or order of a probate court “however erroneous the conclusions of law and fact upon which the judgment or order is based may be, cannot be reviewed or set aside by a superior court in a proceeding in prohibition.”

In the case of The State, ex rel. The Emery-Thompson Machinery & Supply Co. et al., v. Jones et al., Judges, Id., 506, this court held that “A writ of prohibition will not issue to the court of appeals prohibiting that court from determining its own jurisdiction in cases wherein jurisdiction of the subject-matter in an original action, or on appeal or in error proceeding, has been conferred upon that court by the constitution of this state.”

In the case of The State, ex rel. The Hartford Life Ins. Co., v. Bonds et al., Id., 604, the relator sought a writ of prohibition against the common pleas court and the judges of the common pleas court of Franklin county, prohibiting that court from the exercise of jurisdiction in a cause pending therein, for the reason averred in the petition, that the 'court of common pleas of Franklin county had no jurisdiction to regulate and control the conduct of the internal affairs of the relator, an insurance company domiciled in the state of Connecticut. This court, however, refused to interfere with the common pleas court of Franklin county in the exercise of its authority to determine its own jurisdiction, and cited in support of that judgment the Ohio cases hereinbefore referred to.

It is clear, therefore, that, no matter what may be the rule in other jurisdictions, this court has consistently held that a writ of prohibition will not issue against a court having jurisdiction of the subject-matter of an action pending before it, or to deprive such court of the authority vested in it by the laws of this state to determine its own jurisdiction, or to prevent a possible erroneous judgment; nor will it be made to serve the purpose of a writ of error. It is equally well settled that where a writ of prohibition is refused this court will not presume to determine the issues joined by the pleadings in the cause pending in the court against which the writ of prohibition is sought. Nor will it offer any gratuitous advice as to the judgment that court should enter upon such issues.

In such an action this court has no authority to control the discretion of, or indicate the judgment that should be entered by, the tribunal having jurisdiction to determine the question involved in the action or proceeding pending before it. On the contrary, the lower court must be left free to enter such judgment as to it seems right and proper. If the judgment entered is erroneous, the party aggrieved thereby has a full and adequate remedy by invoking the appellate and not the original jurisdiction of a reviewing court. In the case of State, ex rel., v. Brough, supra, this court in its opinion discussed only the question of the jurisdiction of the common pleas court of Lucas county. It did not determine the question pending before the common pleas court or advise that court how it should decide that question. In the case of State, ex rel. Barbee, v. Allen, supra, this court expressed río opinion whatever as to how the questions involved should be determined, or what judgment should be entered by that court. The judgment in the case of State, ex rel. Insurance Co., v. Douds, supra, is to the same effect. In the case of State, ex rel., v. Jones et al., supra, this court, having held that the court of appeals of Hamilton county had authority to determine its own jurisdiction, specifically refused to consider or determine any of the issues joined by the pleadings in the cause pending in that court, but on the contrary held that if the relators desired to present such questions to this court they must do so in the regular and ordinary way.

In this case, as in the cases above cited, it might be a convenient short cut to a final determination of the rights of the litigants for this court to determine in this action the issues joined by the pleadings in the common pleas court. But the final and conclusive answer to that proposition is that this court has no original jurisdiction to determine these questions, except in so far as they are necessary to be considered in determining the jurisdiction of the common pleas court. Having determined that the common pleas court has jurisdiction to adjudicate these questions, this court has no power to advise or direct that court as to how these questions should be determined.

The orderly administration of justice under the constitution and laws of this state absolutely requires that each court in our judicial system should in turn exercise its independent judgment in each particular case. It were folly to vest jurisdiction in any lower court to hear and determine any questions properly pending before it, if this court, in an action for a writ of prohibition, notwithstanding it refuse the writ, proceed to determine the questions at issue in that court or embarrass that court in the discharge of its duty by the expression of any opinion whatever as to the judgment it should enter. In other words, the constitutional amendment authorizing this court to issue writs of prohibition confers no power or authority upon this court to interfere with or limit the jurisdiction of inferior courts conferred upon such courts by the constitution and laws of this state. That jurisdiction is as full and complete as before the adoption of this amendment to the constitution. The purpose of a writ of prohibition is to prevent a court or tribunal of peculiar, limited or inferior power from assuming jurisdiction of a matter beyond its cognizance. But where a court of record has authority to determine its own jurisdiction the writ will not be issued to prohibit the exercise of that authority.

Writ refused.

Nichols, C. J., and Johnson, J., concur.

Wanamaker, J.,

concurring.

I concur in the judgment. I do not concur in the grounds of the judgment.

On January 11, 1918, The Cleveland Telephone Company filed an original action in this court asking for a writ of prohibition against the common pleas court of Cuyahoga county, to prohibit it from hearing and determining a case theretofore filed in that court, in which it was sought to enjoin The Cleveland Telephone Company from operating in the city of Cleveland under a rate different and higher than the rate theretofore fixed or attempted to be fixed by an ordinance "of the Cleveland city council.

The pleadings in the case in this court were drawn by both sides with the direct view and purpose of placing before this court the one big, vital question, to-wit:

Does the statute creating the state public utilities commission prevail over the charter of the city of Cleveland in the fixing of telephone rates for the people of Cleveland ?

The pleadings were not only prepared by able and eminent counsel upon both sides for this single paramount purpose, but the written briefs were likewise so prepared.

The great importance of the case to public utility corporations, as well as to the millions of people residing in the municipalities of Ohio, brought an early hearing, supposedly upon the merits of the case.

On January 23d of this year the case was orally argued before this court and submitted, all with a view of obtaining a decision of this court upon this controlling question.

The only question that this court here and now decides is the following:

Is a writ of prohibition the proper remedy against the court of common pleas ?

Remedy of course has a keen professional interest, but relief has a much greater public interest. Both parties to this cause, and those for whom they speak, are intensely and justifiably concerned about this main question, and it should be now and here decided.

The effect of this 'judgment, by its refusal to determine and decide this question, remands the whole matter back to the court of common pleas of Cuyahoga county sirrtply to pass upon the question, in the first instance, as to whether or not that court has jurisdiction.

After final determination by that court the defeated party may go to the court of appeals and there the case be prepared, heard and determined with considerable labor and no little expense.

After the adjudication of this question in the court of appeals the defeated party may come, as a matter of right, it being a constitutional question, to this court, and then this court will have again before it the identical question that the parties sought to raise, believed they had raised, and which they confidently submitted to this court. So that the decision of this main question in this case at this time would avoid three separate hearings, or trials, in three separate courts, to say nothing of the delays, the labor and expense.

This I conceive to be a violation of both letter and spirit of the obligations placed upon this court by the new Constitution of 1912, as to its original jurisdiction.

The people of Ohio had, for years, grown weary of the numerous trials in the numerous courts — the footballing of a case back and forth from one court to another until the parties were almost exhausted in patience and purse, with decisions ofttimes based upon minor, immaterial questions, purely technical, or upon matters of practice that did not go to the vital merits of the case.

In order to provide some direct and summary remedy for many of these evils, which resulted not only in delays of justice, but ofttimes in the denial of justice, the people of Ohio made some radical changes in the judicial article of their constitution; among others, increasing the original jurisdiction of the supreme court by the addition of two writs, prohibition and procedendo.

In plain phrase, by prohibition they intended to prohibit, to stop litigation in courts and quasi-judicial bodies which had no jurisdiction over the' matter to be determined, or in which the relief sought was in excess of their jurisdiction.

By the second writ, procedendo, it was proposed to give the supreme court of Ohio the right and power to order said bodies to proceed to judgment without further delay.

In short, it was self-evident that the great cardinal purpose of the Constitutional Convention in this behalf was to get quick action, final action, economically and equitably administered, through one fair trial and one review.

In order to further protect this original jurisdiction, that judicial article, in the latter part of Section 2, Article IV, provided:

“No law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the supreme court,”

In the case of State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, it was expressly held in the fourth paragraph of the syllabus:

“If such inferior courts or tribunals, in attempting to exercise judicial or quasi-judicial power, are proceeding in a matter wholly or partly outside of their jurisdiction, such inferior courts or tribunals are amenable to the writ of prohibition as to such ultra vires jurisdiction.”

All the judges concurred in this opinion. Subsequent cases upon the same question are to the same effect.

This court now holds, in effect, that this writ of prohibition cannot be allowed against a common pleas court upon the ground that that court has an inherent right to pass upon its own jurisdiction, and that that question has to be tested out according to the old-time method of prosecuting error through the various courts.

While the decision in the instant case does not, in express terms, lay down an express rule, it has the effect of such by hereafter exempting courts of common pleas from the operation of the writ of prohibition, contrary to the express terms of the constitutional amendment itself.

The Constitutional Debates, especially at page 1044 by Judge Worthington and Judge Peck, expressly show that it was the intention of the convention to make the writ apply to courts of common pleas; indeed to all courts inferior to the supreme court.

This court now simply decides this naked question, and nothing more, that the common pleas court has the right to pass upon the question of whether it has jurisdiction in the case begun in the city of Cleveland in the court of common pleas.

In short, it simply holds that the court of common pleas may guess at what this court will finally hold; that then the court of appeals may guess at what this court will finally hold; and that then, later, this court shall ultimately determine the identical question that is submitted in this case, and is now before this court, as I understand it.

This question is all the more important because since the hearing of this case the state public utilities commission has had a hearing upon the matter of rates and has fixed the rates for the telephone company in the city of Cleveland at a rate higher than the ordinance rate passed by the city council under the city charter.

Clearly if the commission rate is a valid and constitutional one, there is nothing for the court of common pleas to hear. If the rate fixed by the city council of Cleveland, under the city charter and the “Home Rule” amendment to the constitution, is a valid constitutional rate, then there was nothing for the public utilities commissipn to hear.

I concur in this judgment, however, because I hold that the city of Cleveland, through its council, duly authorized by its charter framed pursuant to the “Home Rule” amendment to the Constitution of 1912, has clear and complete power to fix the rates, tolls and charges between such company and the inhabitants of the city of Cleveland, limiting the same to service within the city of Cleveland.

This being one of the biggest public questions that has ever come before the supreme court of Ohio under the constitutional amendments of 1912, I shall give, at some length, the reasons for my judgment.

For nearly a half century the cities and villages of Ohio had been in political bondage to the general assembly. Annually, or at least biennially, the political bosses and profiteers, state and local, had, ■ through the general assembly, made political footballs of the municipalities of Ohio by sundry and divers kinds of “ripper” legislation. The general assembly had assumed a political guardianship over the cities and villages of Ohio, which the inhabitants of those municipalities resented, and in 1912 the people of the municipalities presented a petition of right to the Constitutional Convention to abolish the old political will of 1851, and by a new political will, or codicil, to forever free the cities from guardianship by the general assembly of Ohio in municipal affairs.

The Constitutional Convention granted the prayer of that petition by a vote of 99 for to 14 against, and at. the following September election the “Home Rule” amendment, which was known as Article XVIII, was overwhelmingly adopted by the people of Ohio, the ten counties containing the ten largest cities of Ohio alone furnishing more than 100,000 majority, showing the decisive demand for home rule for cities, as against general-assembly rule for cities.

The people of Ohio’s municipalities believed that the long fight for municipal home rule had been won. They believed that at last they had gotten the political bread for which they had long been pleading. The question now is, Did they get only a brick, and that, too, of the gold variety?

The question now before us is, What political power was delegated by this Article XVIII in the new political codicil of 1912?

Of course the “Home Rule” amendment must speak for itself, where the language is clear. And yet a small part of the debates.of the Constitutional

Convention is illuminating upon this grant of power.

The venerable Judge Peck addressed a question to Professor Knight, who was virtually in charge of the “Home Rule” amendment, and the report of the proceedings and debates of the convention sets forth the following discourse at page 1451:

“Mr. Peck: I want to get back to this question as to general government and local self-government. In section 7 you say that ‘any city or village may frame, adopt or amend a charter for its government, and may exercise thereunder all powers of local self-government.’ . What powers do you mean?

“Mr. Knight: All the powers of local self-government, subject to the limitations of section 12.

“Mr. Peck: You don’t say anything about that?

“Mr. Knight: There is a specific limitation in section 12.

“Mr. Peck : Point it out.

“Mr Knight: Section 12: ‘The general assembly shall have authority to limit the power of municipalities to levy taxes and incur debts for local purposes.’” (Section 12 then;' Section 13 now.)

The backbone of municipal home rule in Ohio, if it has any backbone left, is contained in these words from Section 3 of Article XVIII:

“Sec. 3. Municipalities shall have authority to exercise all powers of local self-government.”

“All” power of “local self-government” surely does not mean “some” power or “part” power. It means full and complete power of local self-government.

Neither does it mean any particular kind of power, police, eminent domain, taxation, or what not. The word “all” is comprehensive enough to include not merely the full quantity of power, but every kind of power necessary to modern, progressive and efficient local self-government in our Ohio municipalities.

The growth of police power has been made necessary by the growth of cities. Rural communities, generally speaking, are quite as simple and natural in their life as they were a half century ago, largely self-governing; each man is his own policeman, save occasional need for a town constable or the county sheriff; each man his own fireman; each man his own health officer, save with the occasional aid of the board of trustees. City conditions and city problems have accounted very largely for the necessity of the marvelous and complicated development of the police power. It is indispensable to self-government in all our municipalities.

When the constitution-makers were addressing themselves to this question, is it likely that they intended to except from “all powers of local self-government” the police power, which approximately involves ninety per cent, of the governmental power of cities ? In fact, it is the very soul and spirit of municipal government. The rest is mere shell and form of government.

Cities have produced these new social, industrial, commercial, safety and health conditions, and the problems of government resulting from them. Is it not altogether likely that with these facts before them, which they knew and everybody else familiar with city life knows, the members of the Constitutional Convention granted or at least intended to grant to cities suitable and sufficient governmental police power to fairly and fully deal with these conditions and problems ?

If government derives its just power from “the consent of the governed,” is it to be presumed that the people of Ohio ever intended to take the solution and conduct of these municipal problems out of the hands of the people of the cities and confer them upon some state commission at Columbus, whose actions and orders are reviewable only by the supreme court of Ohio ? It is preposterous.

The Ohio “Home Rule” amendment is different from the home-rule amendment of any other state. However, it is more like the home-rule provision of the California Constitution than that of any other state.

What has the supreme court of California held as to the regulation of telephone companies under the home-rule charter in California, as reported in Sunset Telephone & Telegraph Co. v. City of Pasadena, 161 Cal., 265 ? The syllabus of that case tells its own story:

“The question whether and to what extent the streets of a municipality shall be subjected to such secondary uses as the maintenance therein of telegraph and telephone poles and wires is a 'municipal affair/ as those words are used in section 6 of article XI of the constitution, as amended in 1896, making the provisions of a freeholders’ charter adopted by a municipality paramount to general laws enacted by the state legislature ‘in municipal affairs.’

“The freeholders’ charter of the city of Pasadena, which became effective in 1901, * * *

confers upon the city full control of its streets, with power to determine whether and upon what terms portions thereof may be exclusively used and occupied by telegraph or telephone companies. These matters being ‘municipal affairs,’ ” etc.

Six of the seven judges concurred and no judge dissented.

But it is here claimed that the charters in California are essentially different from the charters in Ohio, because before they can become effective in California they must first be approved by the legislature.

Now, since when did the authority and approval of a state legislature become a matter more supreme and obligatory than the grant of authority conferred directly by the people through a constitution, as is the case in the state of Ohio?

The reason this case is particularly helpful in construing our Ohio “Home Rule” amendment is that in California “municipal affairs” were not subject to the general laws of California, just as in Ohio all powers of local self-government are not subject to general laws, except that Section 13 limits the power of taxation, etc.

A very recent case decided by this court, Billings v. Cleveland Ry. Co., 92 Ohio St., 478, is to the same general and legal effect, and to my mind is controlling and decisive of this case.

The city of Cleveland, by virtue of its charter, granted the right to a street railway company to construct its tracks upon Euclid avenue without the consents of a majority of the property owners, as provided in Sections 3777 and 9105, General Code.

An abutting property owner upon this street sought to enjoin the railway company from the construction of such track by reason of the fact that it had not complied with these statutes, notwithstanding the charter provision that consents were not necessary.

In this Billings case this court held that these statutes were of no effect in a city that had adopted a charter, where the charter provided expressly that no such consents were necessary.

The first paragraph of the syllabus is as follows:

“The granting of permission and the making of a contract to construct and operate a street railway in the streets of a city or village is a matter that may be provided for in a charter adopted by the municipality under Article XVIII of the Constitution.”

Manifestly, if the charter may provide for it, then such charter may conflict with a statute touching the same matter. Both cannot control. But the Billings case holds that the charter is supreme. Why? Because the power of the city is being exercised in reference to “municipal affairs” or to matters of “local self-government.”

The judges concurring in this judgment were Nichols, Johnson, Donahue, Wanamaker and Matthias.

Now, the same doctrine that applies to street railroads in the use of the streets and public highways of a municipality must of necessity apply to a telephone company in the use of streets and public highways of a city. They are both transportation agencies. They both must obtain a franchise from the city. They both are public utilities. They both are essential to an indispensable public service, and in all essential respects are analogous in their relations to the city. The lines of both extend beyond the city. A part of the business of both is extra-territorial, including Cuyahoga county, including the main thoroughfares of the state; indeed it may be interstate.

I hold, therefore, that under the general grant of power in Section 3, the municipality is supreme and paramount as to all “municipal affairs,” as to “all powers of local self-government,” and that the subject-matter of street railroads, telephones and other public utilities is clearly and conclusively comprehended within both of these phrases.

The telephone company would change Section 3, which reads, in full, “Section 3. [Part One] Municipalities shall have authority to exercise all powers of local self-government and [Part Two] to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws,” so as to make it read “Municipalities shall have authority to exercise all powers of local self-government ‘not in conflict with general laws.’ ”

I am frank to admit that if this last phrasing is the equivalent in legal and constitutional effect to the phrasing and form of the Constitution, then municipalities are to-day, as they were before 1912, still subject to any and all general laws.

Did the constitution-makers and adopters so intend?

They are presumed to have given to their language its natural and customary meaning, to have meant what they said, and to have said what they meant. If they meant that municipalities should exercise only powers “not in conflict with general laws,” would they not naturally and probably so have said ?

This is the language used in the Constitution of the state of Washington:

“Any city * * * shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state.” (Section 10, Article XI.)

The Missouri Constitution as to chartered cities reads:

“Any city * • * * may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state,” etc. (Section 16, Article IX.)

Oregon’s Constitution provides for a city charter, but does not say what powers shall be exercised under it, leaving it of course for the legislature’s determination by general laws.

With these various constitutions before them, as is clearly indicated by the debates, it is strikingly significant that the members of the Ohio Constitutional Convention of 1912 did not follow any of them.

Here it is fitting to observe that the various decisions cited in support of the Telephone Company’s claim from Washington, Oregon and Missouri are wholly inapplicable. These states are now just where Ohio was up to 1912. It would be just as appropriate and enlightening to quote some of the old decisions in Ohio before the “Home Rule” amendment took effect as to quote the decisions from states where they have no like home-rule amendment. They are as helpful and valuable as a last year’s bird’s-nest.

If this reasoning is sound, then it is clear that Ohio’s constitution-makers of 1912 intended something entirely different from the Washington constitutional provision, the Oregon constitutional provision, or the Missouri constitutional provision. As before observed, ours is more like the provision of the California Constitution.

Now, what does “not in conflict with general laws” modify? It is quite plain that it was not intended to modify “all powers of local self-government;” else it would have so said. Part One, as above referred to for convenience, relates to a grant of municipal power and the full and' complete grant of that power. Part Two relates solely to the grant of state power, and when the municipality undertakes to exercise such state power naturally and sensibly it should be “not in conflict with general laws.”

This conclusion is further reenforced by the fact that Part One and Part Two are connected by the conjunction “and.” The construction contended for by the telephone company is that Part Two subtracts from Part One, limits Part One to all “general laws.”

Now everybody who knows the rudiments of English grammar and rhetoric knows that “and” does not mean less, but more; that “and” is not a word of subtraction, but addition.

As to municipal powers there was nothing further to be granted. That had been fully done in Part One.

It is significant that in Part One we have the word “powers.” In Part Two this word “powers” does not appear, but instead we have the word “regulations,” and these “regulations,” it is provided, shall not be “in conflict with general laws.”

What is the meaning of the word “regulations,” as used here in the constitution ?

The words “police regulations” are not new words in Ohio. Judge Johnson refers to their use and scope in his opinion in the case of Fitzgerald v. City of Cleveland, 88 Ohio St., 338, at page 359, as follows:

“Concerning the provision in Section 3, Article XVIII (may adopt such local police, sanitary and other similar regulations as are not in conflict with general laws), the general laws referred to are obviously such as relate to police, sanitary and other similar regulations, and which apply uniformly throughout the state. They involve the concern of the state for the peace, health and safety of all its people, wholly separate and distinct from, and without reference to, any of its political subdivisions — such as regulate the morals of the people, the purity of their food, the protection of the streams, the safety of buildings and similar matters.

“Manifestly, therefore, it was necessary, when the constitutional convention was conferring all powers of local self-government on cities, to provide that, in the adoption of such regulations by any city for itself (police, sanitary and similar ones), they should not conflict with general laws on the subject.

“It is a well-settled rule that the body adopting amendments, such as are here involved, will be presumed to have had in mind the course of legislation and existing statutes touching the subjects dealt with. People, ex rel. Jackson, v. Potter, 47 N. Y., 380, and cases cited. The legislature of Ohio in the codifications adopted by it, covering many years, including the last one adopted, has included a separate title, designated by it ‘Police Regulations/ in which it has included the general laws of the character we have above described. If it had been intended that the limitation should comprise the wide and elastic scope contended for, it would have been so expressed.”

These regulations are generally of a penal nature and are found in Page and Adams’ Annotated Ohio General Code, Vol. 3, p. 209. They pertain to adulterations, animals, auctions, butter and cheese factories, commission merchants, cigarettes, explosives, fences, ferries, gaming, intoxicating liquors, mobs, pawnbrokers, shows, trading stamps, weights and measures, etc., some thirty-four different heads. Of course this does not embrace all of them, but it serves to illustrate what the constitutional convention meant by the use of the word “regulation.” If they had meant police powers generally, would they not likely have so written it? They used the word “powers” in the first part of Section 3. They did not use the word “powers” in the second part of Section 3, but, instead, the word “regulations.”

But there is positive constitutional proof that Part Two of said Section 3 was not intended as a limitation upon Part One, but rather as an addition in the nature of state power, not municipal power.

That constitutional proof to the effect that the general assembly’s acts should not operate in cities after the “Home Rule” amendment went into effect appears in Section 2 of Article XVIII, dealing with the subject “Municipal Corporations.” For convenience sake I have divided said Section 2 into two parts:

Part One: “General laws shall be passed to provide for the incorporation and government of cities and villages.”

This is the first grant of power to the general assembly touching municipal corporations and was evidently intended to provide a skeleton form of government under which cities would operate until they chose a form of their own through a charter.

This is followed in the same section by Part Two:

Part Two: “and additional laws may also be passed for the government of municipalities adopting the same.”

Then follows this language as to such additional laws:

“But no such additional law shall become operative in any municipality until it shall have been submitted to the electors thereof, and affirmed by a majority of those voting thereon, under regulations to be established by law.”

Here we have an immunity, an exemption of municipalities from the operation and effect of the statutes of Ohio under the head of “additional” laws, showing clearly and conclusively that such laws could not be forced upon the city and that before they could become operative in the city they must first be • submitted to and approved by the electors.

In short, the whole “Municipal Home Rule” amendment, Article XVIII, shows clearly that the will of the people of the cities by grant of power from the people of Ohio was to be forever paramount to the general assembly of Ohio, to any board or commission which it might create, or even to the supreme court of Ohio, which is made the reviewing body upon any action or orders of the state public utilities commission.

This part of the section pertaining to “additional” laws has not even been referred to by the eminent counsel for the Telephone Company. No one has suggested any meaning or force for this constitutional provision which would not include under the head of “additional” laws the various statutes creating the public utilities commission.

I hold, therefore, that, by virtue of the last part of Section 2 of Article XVIII, before the public utilities statute can become operative in the city of Cleveland, there must be a referendum upon it as an “additional law” by the people of the city of Cleveland, pursuant to Section 2 of Article XVIII of the Constitution.

The basic fallacy of the Telephone Company’s claim is, “That all police power is a state function,” whether it relates to affairs that are essentially municipal or affairs that are essentially state, and that the exercise of such power is expressly committed and delegated to the general assembly of Ohio and a municipality’s charter and ordinance must be subservient thereto.

Of course the exercise of the police power is a sovereign power, but not necessarily a “state” power.

But who is the sovereign? Who is the state? Once upon a time Louis XIV said “I am the state.” The Telephone Company seems to hold that in the municipalities of Ohio the general assembly is the state. But I- remember that it is written in the Constitution of Ohio that “all political power is inherent in the people;” that the people are the sovereign, the people are the state, and that no political department of the state or any political subdivision thereof can exercise any power not expressly delegated or delegated by necessary implication.

Now, when the people in 1912 through their Constitutional Convention and the referendum ^hereon made a new distribution, a new delegation of power, they were the sovereign who granted the police power; and when by the sovereign grant, the constitution, they expressly declare that municipalities shall exercise “all powers of local self-government,” and the municipalities at once enter upon the exercise of that power, the other governmental departments of the state of Ohio are, by necessary implication, deprived of the right to exercise such power.

I claim that this is the reasonable, natural and intended meaning of this constitutional grant of power from the people of Ohio to the people of the municipalities, and that the liberal rule of construction should apply in such cases.

It is contended, however, that the strict rule of construction applies in this case to the constitutional grant of power, and we are referred, as an authority upon that proposition, to Woodburn v. Public Service Commission, 82 Ore., 114. A quotation from the syllabus in that case is as follows:

“Since the right to regulate rates is an inherent element of sovereignty, such right can be delegated to a municipality only by clear and express terms, and all doubts must be resolved against the municipality.”

I admit that this is the rule in Oregon, where hypercritical technicalities and subservience to antiquated precedents seem to be the prevailing doctrine, as proof of which I refer to that same court’s opinion delivered in the same year in the case of White v. East Side Mill Co., 81 Ore., 107.

We are also referred to State, ex rel. Toledo, v. Cooper, Auditor, 97 Ohio St., 86. I did not concur in that opinion or judgment. If that case held to the doctrine of strict construction in interpreting constitutional grants of power, as it seems to hold, then it reverses and violates the uniform and well-settled doctrine pertaining to constitutional construction.

Judge Cooley in his immortal work, Cooley’s Constitutional Limitations (7 ed.), page 93, says: “Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.”

Indeed the able and eminent counsel for the Telephone Company in their very elaborate brief admit the liberal doctrine to be sound and true in their use of the following language:

“The constitution should be liberally construed in respect of all governmental matters of purely local municipal concern, so that municipalities may be unhampered in the exercise of powers legitimately covered by very general constitutional provisions.”

Cases galore could be cited- in support of this proposition, but it is unnecessary. Common sense and average reason are all that are needed to see that when the people of Ohio make a general grant of power in á constitution they need not specify every one of a hundred or a thousand things that are ordinarily or necessarily embraced within that general grant of power, and, if all police power necessary for local self-government passed to the city of Cleveland by the constitution and charter, then the city of Cleveland had the right to put the word “regulate” in its charter, and to make it effective in fixing the fares and rates of all public utilities.

If the city of Cleveland may not regulate the rates of telephone companies, it may not regulate the rates of street car companies; it may not regulate the rates of water companies, light and heat companies, taxicab companies, or any other public utility; and, instead of the city charter being supreme in municipal matters, the municipal affairs of the city of Cleveland will be conducted by a commission at Columbus, now composed of three members, all able and honorable gentlemen, which commission may be reduced to one man with like authority, and all our boasts about making the country safe for democracy be only a fatuous farce.

We are talking about democracy for Germany and democracy for Russia, democracy for the world, but under the Telephone Company’s claim deny it here at home for the cities and villages of Ohio and hold that they can be governed by commissions not selected by them nor responsible to them. Let us be consistent some of the time.

It is urged that the function sought to be exercised here is not wholly and exclusively municipal. Of course The Cleveland Telephone Company does some business outside of the city, but that is not sought to be regulated in this case. The business sought to be regulated, however, is essentially, inherently, primarily and directly municipal. Analogy for this contention is found in questions relating to interstate and intrastate commerce decided uniformly by the federal and state courts. The rule there is well settled that state legislation that directly and substantially affects intrastate commerce, but incidentally and remotely affects and regulates interstate commerce, is not unconstitutional. If, upon the other hand, it directly and substantially interferes with interstate commerce, such legislation is to that extent unconstitutional. So, here, if it can be said that the ordinance of the city of Cleveland fixing telephone rates in any wise affects an intercity relation or business outside of the municipality of Cleveland it is at most only incidental and remote, and does not in any wise invalidate or affect the right and power of the city of Cleveland to fix the rates within the city of Cleveland.

I agree with the proposition urged upon us that Section 2 of Article XIII, headed “Corporations,” authorizes the general assembly of Ohio, by statute, to create a public utilities commission with the general powers provided for in said section of the constitution, and in the main the general powers provided for in the statutes. But it-will be observed that this is a general section applying to all “corporations,” private and public, for profit and not for profit, public utilities and otherwise.

Manifestly constitutional provisions referring specifically to municipal corporations would control as against any other section of the constitution applying to corporations generally. Where there is conflict the rule is long and well settled that the specific provision must control.

That these public utilities are municipal affairs, are matters of local self-government, and were so contemplated by the framers of those amendments, cannot be doubted from the reading of Sections 4, 5 and 6 of Article XVIII.

But it is claimed that the language “may contract” does not give power to fix compulsory rates. Granted. But why may not the same source of political power, the people, as well grant expressly and directly to municipalities the necessary police power to fix rates, as to grant it to the general assembly ?

The people are the one common source of power, and to all intents and purposes have made in Section 3 the grant of every kind and to the full measure of all powers of local self-government.

Consequences of judicial construction are ofttimes the best test of the reasonableness or unreasonableness of the construction. Tried by this test, the construction urged by the Telephone Company completely nullifies home rule in all the most important and essential affairs of municipal government, and the municipalities of Ohio are again at the absolute mercy of the general assembly, that may, whenever it pleases, by legislative act, assume and continue its guardianship over them:

My construction, upon the other hand, leaves the state public utilities commission to continue its general jurisdiction over corporations, but exempts municipalities with charters from the operation of the general laws of the state, as to all powers of local self-government, and no one can read the opinion of Judge Shauck in State, ex rel. Toledo, v. Lynch, 88 Ohio St., 71, and no one will claim that he was excessive in his zeal for the new constitutional amendments of 1912, without feeling that the immunity concerning which he wrote, given to cities adopting charters under Article XVIII, has been grossly violated by this decision.

There is no immunity if the commission’s rate shall stand as the law of Ohio; but we are back where we were before the amendment of 1912, to all practical intents and purposes. Such a construction of the constitutional grant of power to municipalities is a practical illustration of a doctrine denounced by St. Paul, a great Roman lawyer of old, who said:

“The letter killeth, but the spirit giveth life.”

The spirit, the purpose, the intent, of the home-rule amendment must always be kept in mind in construing and applying it. Whether the testator be a private person bequeathing his personal estate or the public bequeathing its political power, the same rule applies as to intent. It is the polestar of construction.

I should like some one upon the other side -to draw a diagram giving the state commission the power to fix telephone rates, and then with definiteness and certainty show what is left to the municipality after this principle has been applied throughout governmental affairs. Nothing but the shell of home rule would remain. The soul and spirit would have passed away to some state general-assembly commission. Home rule would be an eloquent phrase, but empty in power and practice.

Jones, J.,

dissenting.

Whether prohibition can be invoked in this case depends upon the decisive question, which of these contending tribunals has jurisdiction over the rates of this public utility — the common pleas court of Cuyahoga county or the public utilities commission of the state? If the former has no jurisdiction over the subject-matter, a writ of prohibition should issue; and upon the decision of this feature of the case rests the determination as to the character of the remedy. Upon this phase of the question I fully concur with the views of the concurring judge. Herein lies the crux of this remedial controversy. The Cuyahoga county common pleas court decided that the public utility act did not control. If its decision was erroneous, then that court clearly usurped jurisdiction and should be prohibited from further entertaining it. This is the province of the writ. What boots it to the city if we now deny the writ, and later on gibbet the city by holding that the public utilities commission had complete jurisdiction? Here the telephone company is being subjected by the commission, on the one hand, to a statutory investigation of-its rates; on the other hand a court acting solely under a statutory jurisdiction is also assuming jurisdiction and threatens to impose the ordinance rates upon the utility. Which of these tribunals has jurisdiction over the subject-matter? To which must the utility yield? Shall it be subjected, as it now is, to a two-fold simultaneous hearing? And, at the conclusion of those hearings, whose orders shall it obey? Shall it subject itself to punishment for contempt for failure to obey the order of the Cuyahoga county court, or submit to a maximum penalty of $1,000 per day for failure to obey the order of the commission as provided by the code? (Section 614-64, General Code.) The situation is preposterous. How futile and how fatuous it would be to have these contending cases pursue their tedious course through the intervening courts, on error, in order to determine ultimately in this court the sole decisive question — Has the nisi prius court jurisdiction and has the legislature conferred it ? And now, both sides having trained their heavy guns on the main question and being desirous of a determination, we find ourselves in the situation described by the Latin poet:

“Parturiunt montes,

“Nascetur ridiculus mus.”

As stated in the text of 2 Bailey on Habeas Corpus, 1398: “It being conceded that the very .object and purpose of the writ of prohibition is to confine courts, within their jurisdiction, to prevent them from exercising powers they do not possess, is it not a total disregard of such purpose to say and hold, that notwithstanding, the court shall not be restrained, but permitted to proceed and in the end, this exercise of the want of power, will be corrected and the proceeding declared non coram judice, and all at the expense and to the material injury of the party aggrieved?”

It has been held .even in cases where two tribunals of coordinate jurisdiction are simultaneously taking cognizance of the same subject-matter, under circumstances where their final judgments may clash in their execution, and the party aggrieved is subject to the expense of two separate trials upon the subject- of the controversy, that error does not' furnish an adequate remedy and that prohibition would lie. State, ex rel. Webster, v. Superior Court of King Co., 67 Wash., 37.

The principle announced is also supported by the following cases: State, ex rel. Merriam, v. Ross, Judge, 122 Mo., 435; State, ex rel. Sullivan et al., v. Reynolds, Judge, 209 Mo., 161, and Dungan v. Superior Court of Fresno Co., 149 Cal., 98. In the latter case two superior courts of California counties were exercising jurisdiction in the settlement of an estate, and the court there held that the court first obtaining jurisdiction retained it, and prohibited the second coordinate court from exercising any jurisdiction therein. And in the opinion it was said at page 104: “In view of the complications which will necessarily follow the attempted exercise of jurisdiction in this matter by two superior courts, we are of the opinion that it cannot be said that there is a plain, speedy, and adequate remedy in the ordinary course of law.”

But it is stated that the courts of common pleas of this state are courts of general jurisdiction and competent to decide upon their own jurisdiction. No one questions this established principle, but the complete answer to that proposition is that if the court of common pleas either lacks jurisdiction, or usurps it, the writ will lie; otherwise we can have no writ of prohibition against any court of general jurisdiction in this state. Of course if the jurisdiction of the court depends Upon a controverted fact necessary to give it jurisdiction, the establishment of that fact by a court which is competent to decide it precludes a superior court from issuing the writ,

but, as stated in State, ex rel. Barbee, v. Allen, Probate Judge, 96 Ohio St., 10, 15, in such cases the subject-matter “was one properly before the court and within its constitutional jurisdiction.”

Such is the effect of the decision in the case of Kelley, Judge, v. The State, ex rel. Gellner, 94 Ohio St., 331. In that case a writ of prohibition was asked for two reasons: (a) That the insolvency court had no jurisdiction over the subject-matter; (b) That the insolvency court had nó jurisdiction because the evidence failed to show that the plaintiff had been a resident of the state for a year preceding' the time of filing his petition. The court there held that the insolvency court had jurisdiction of the subject-matter, and, as to the second proposition involved, held that it was within the province of the insolvency court to determine the issue of fact. As to that feature the court was competent Ao pass upon its own jurisdiction, and error would lie.

To deny the writ of prohibition against a usurping court of general jurisdiction for the reason that such court is competent to pass upon its own jurisdiction would result in the adoption of a novel principle in the law relating to the issuance of this writ. Suppose such court should erroneously decide that it had jurisdiction of a subject-matter? Or, let it be assumed that the common pleas court of Cuyahoga county should attempt to issue a writ of prohibition or exercise original jurisdiction over the probate of wills or the settlement of decedents’ accounts, or that it should attempt to exercise original jurisdiction in the removal of a guardian (which jurisdiction is denied in Guardianship of Oliver, 77 Ohio St., 474), and let it be further assumed that such court, as in this case, should endeavor to employ an injunctive writ in aid of its judgment in such cases, can it be claimed that because such court is competent to decide its own jurisdiction it is not subject to a writ of prohibition by the superior court, and that a litigant's remedy is by way of error only? An inspection of the syllabi of the Ohio cases clearly discloses that this writ is always available where these courts usurp jurisdiction, although they are competent to pass upon their own jurisdiction.

Is the subject-matter — the regulation of public utility rates and service — within the jurisdiction of the courts of common pleas of this state, or has that subject-matter been confined to the public utilities commission of the state? Section 614-3, General Code, provides: “The public service commission of Ohio is hereby vested with the power and jurisdiction to supervise and regulate 'public utilities' and 'railroads’ as herein defined and provided and to require all public utilities to furnish their products and render all services required by the commission, or by law.”

This provision of the act casts upon the commission full and complete jurisdiction over public utilities and their service. Section 4, Article IV, of the Ohio Constitution, provides that “The jurisdiction of the courts of common pleas, and of the judges thereof shall be fixed by law.” That these courts have no other jurisdiction than that fixed by legislative authority has been frequently decided in this state. (Allen v. Smith, 84 Ohio St., 283.) Here the legislature of Ohio has not only withheld jurisdiction from the common pleas court, but has expressly denied its authority to interfere in any wise with the public utility commission and its orders, as disclosed by Section 549, General Code (103 O. L., 816), which is as follows: “No court other than the supreme court shall have power to review, suspend or delay any order made by the commission, or enjoin, restrain or interfere with the commission,” etc.

The prayer of the petition in the common pleas court was for injunctive relief, enjoining the telephone company from putting into effect the schedule of rates filed with the commission, and foi a mandatory injunction to install the ordinance rates. The granting of such order is tantamount to a writ of prohibition against the public utilities commission, prohibiting it from proceeding further as the statute provided. This was the practical and legal effect of the proceeding in the court of common pleas. Its judgment would necessarily nullify not only the statute of Ohio, but also the proceedings of the commission thereunder, and would be substantially a writ of prohibition, which under the constitution and laws of this state cannot be invoked in the common pleas court. Prior to the adoption of the present constitutional amendment appellate jurisdiction was given to the common pleas court over the final orders of these commissions. This appellate jurisdiction, however, has been repealed by the general assembly, and, in conformity with the constitutional requirement, it has lodged all supervisory and appellate jurisdiction in the supreme court of this state. Section 544, General Code (103 O. L., 815), now provides that final orders made by the commission shall be reversed, vacated or modified by the supreme court, on a petition in error.

Thus it will be seen that all semblance of jurisdiction heretofore lodged in the court of common pleas, over the action of the public utilities commission, has been taken away from them by legislative enactment. Jurisdiction was retained in this case by the Cuyahoga county court expressly upon the principle announced by that court, to-wit, that the public utilities commission had no authority to act. The proceeding in the common pleas court was brought under the guise of restraining the telephone company, but its effect in contemplation of law was to restrain and interfere with the proceedings of the commission, in defiance of its orders, and an invocation of jurisdiction which had been expressly denied the lower courts.

That the writ of prohibition lies in cases where there is a want of or an excess of jurisdiction in an inferior tribunal has been established by the uniform decisions of the courts. 32 Cyc., 600, et seq.; State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264; State, ex rel. Garrison, v. Brough, 94 Ohio St., 115, and Kelley, Judge, v. The State, ex rel. Gellner, Id., 331.

Allusion has already been made to the case of State, ex rel. Webster, v. Superior Court of King Co., supra. The proceeding in that case followed exactly the proceeding in this. The injunction suit was there brought against the company, at the instance of the city, to restrain the former from collecting the commission rates, and the company invoked the original jurisdiction of the supreme court in prohibition. The latter court held that the writ of prohibition was proper, the remedy by appeal inadequate, and awarded the writ against the superior court, prohibiting it from further proceeding in defiance of the order of the public utilities commission; and this the supreme court of Washington did, notwithstanding the fact that the injunction sought in the nisi prius court was not against the commission, but against the telephone company.

The writ of prohibition was therefore properly invoked in this case and should issue as prayed for. In compliance with the provisions of law the relator had filed its schedules of change of rates and rules of service. The commission having assumed jurisdiction was proceeding with an investigation and hearing as to the reasonableness of these rates when its authority was questioned by the injunction suit filed in the common pleas court of Cuyahoga county.

The second question presented in this case is succinctly stated in the brief of counsel for the city as follows: Has the city of Cleveland power, by virtue of the home-rule charter, to regulate telephone rates in the city, or is that power in the public utilities commission of Ohio?

The city of Cleveland has adopted a home-rule charter, under sanction of the Ohio Constitution, Article XVIII, Section 3, which is as follows: “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

It is now urged that this provision of the constitution has conferred upon the city a sovereign function, which theretofore adhered in the state, of enacting a charter authorizing it to regulate and establish rates for public utilities within municipal limits.

The cases heretofore decided, relating to the exercise of municipal home rule under charter provisions, are riot helpful in the disposition of this case. They merely establish the principle that matters which are purely municipal and governmental are controlled by the provisions of the constitution, above quoted, but that matters which are of state concern have not been placed within the absolute control of charter cities.

It must be conceded that there are no express or unequivocal terms in the constitution which would confer upon charter cities the right of regulation of public utilities. Is rate regulation of a utility, though its corpus may be confined within the city limits, a matter of municipal or state concern? That these public utilities are not mqrely of local concern, but are eo-related with state and national interests, is shown by the following excerpt from the President’s letter of February 19, 1918, to his Secretary of the Treasury:

“I fully share the views you express regarding the importance of the public service utilities as a part of our national equipment, especially in wartime.- It is essential that these utilities should be maintained at their maximum efficiency and that everything reasonable should be done with that end in view.”

In the determination of this question it must be remembered that under the Ohio constitution these corporations secure their franchises from the state alone, and upon conditions prescribed by the commonwealth, which under the provisions of that instrument has the sole power of alteration or repeal of laws conferring corporate franchises. A home-rule city has no such constitutional power. If it is absolutely free from state control, as claimed, then it has the power of rate making and of conferring in perpetuity franchises which cannot be altered or repealed by the legislature under its reserved constitutional authority referred to.

The system of commission control over public utilities has been gradually developed and adopted by various states and by the national government. But, in every case, it is a system established and controlled by legislative authority of the sovereign — state and federal. The national control extends over the national domain; the state control extends over the state' domain. The latter may, it is true, divest itself of this sovereign function and yield it to a community therein, but its divestiture must be expressed in no uncertain terms, and must be clear and unambiguous. The rule of liberal construction 'does not apply. (State, ex rel. Toledo, v. Cooper, County Auditor, 97 Ohio St., 86.) Ohio never intended to emasculate the functions of the state and place this paramount power in the hands of local communities.

Wherever the subject has been approached by the courts of this country, they have uniformly held that under charter provisions, adopted under home-rule amendments similar to our own, rate regulation is a matter of state-wide and not of municipal concern.

The supreme court of Oregon, in the case of Woodburn v. Public Service Commission, 82 Ore., 114, 125, speaking of that feature said: “The right to regulate rates is a matter of general concern, and does not pertain solely to municipal affairs * * * . The power to regulate rates does not pertain to the government of the city; it is not municipal in character; nor is it even an incident to a grant, of authority to enact or amend a charter for a city or town.”

In Portland Ry., Light & Power Co. v. City of Portland, 210 Fed. Rep., 667, 672, the federal judge said: “The regulation of fares to be charged by public service corporations is not primarily a municipal matter, but is a sovereign right belonging to the state in its sovereign capacity. All authority over the subject must emanate from the state. * * * If the [charter] amendment is valid and takes the public utilities within the city of Portland out 'of the operation of the Public Utility Act and the jurisdiction of the commission created by it, then every municipality in the state may amend its charter with like effect, and the Public Utility Act will become a useless and emasculated piece of legislation, the will of the people as expressed therein be practically ignored, and the people of a part of the state become greater than the whole.”

The supreme court of thé state of Missouri in State, ex rel. Gardner, v. M. & K. Telephone Co., 189 Mo., 83, 84, held: “The regulation of price to be charged by a corporation intrusted with a franchise of a public utility, is not a power appertaining to the government of the city, and does not follow as an incident to a grant of power to frame a charter for the city government.”

There is a controlling reason why the home-rule charter did not control this public utility. The record discloses that The Cleveland Telephone Company was not only operating -within the municipal limits, but that its lines extended into Cuyahoga county and the counties adjoining. This utility was a corporate entity, and could not be dismembered at the city limits, since its operation and service extended not only throughout the city but throughout other portions of the state as well. In the extension of its commerce through its long-distance communications it not only reached' other communities, but was in fact compelled to connect with other lines extending throughout the state.

Section 614-63, General Code, empowered the state commission to effect continuous telephone line connections. Section 614-53, General Code, gave supreme control of its stocks and bond issues to the same authority.- Section 614-2, General Code, expressly denominated this utility as a common carrier. Section 9191, General Code, conferred upon it the sovereign power of eminent domain, which has been upheld by the repeated decisions of this court. These various sections, including those sections of the General Code creating and granting the powers to the state public utilities commission, disclose that these various utilities have always been regarded as a matter of statewide concern.

Irrespective of what has been said, the present constitution of Ohio has expressly lodged the power of rate regulation in the legislature of this state. Section 2, Article XIII, provides: “Corporations may be formed under general laws; but all such laws may, from time to time, be altered or repealed. Corporations may be classified and there may be conferred upon proper boards, commissions or officers, such supervisory and regulatory powers over their organisation, business and issue and sale of stocks and securities of foreign corporations and joint stock companies in this state, as may be prescribed by law”

This section of the constitution,- adopted on September 3, 1912, and at the same time the home-rule provision was adopted, expressly provides for legislative control. It authorizes the legislature to confer upon proper boards or commissions supervisory and regulatory powers over the organization and business of corporations of this character. There is no constitutional authority found in our constitution for municipal creation of any board for like purposes; and yet, if the contention of -the city be upheld, it has the right not only to regulate corporate organization and business, but to control the issue and sale of their stocks and securities. If this constitutional provision means anything, it means that the sole power has been lodged in the general assembly. This construction was expressly recognized by the constitutional convention that submitted the amended section, for in its official address to the people of the state explaining the purport of the section the convention said:

“This amendment is offered for the purpose of authorizing legislation that will permit * * * the regulation by law of the * * * supervision over their [corporations] organization and business.”

Furthermore, that this section of the constitution and none other applied is disclosed by the adoption of the facsimile ballot containing the words, “Regulation of Corporations ” etc. At the election of September 3, 1912, over 300,000 electors approved this amended section, placing the regulation of corporate business in the hands of legislative boards and commissions. To thwart now this purpose, as clearly evinced not only by the section itself, but also in the official statement of its framers, would be tantamount to framing a constitution by the court.

The charter of the city of Cleveland provides that “the city * * * may acquire, construct,

own, lease and operate and regulate public utilities.” This went beyond the constitutional grant, which did not embody the word “regulate.”

Section 4, Article XVIII of the Constitution, provides that any municipality “may acquire, construct, own, lease and operate * * * any public utility,” etc.

The utilization of these words excludes the power to regulate. Expressio unius est exclusio alterius.

The charter of the city government plainly incorporated a power not conferred by the provisions of the constitutional section above quoted.

The power attempted to be exercised by the city of Cleveland in the instant case is one of the police powers of the state, and remains therein, unless it has been unquestionably delegated by the state. We have already said that there are no clear or express terms found in our constitution conferring this sovereign function upon the city. The police power emanates from the welfare clause of the state and federal constitutions, and is based upon the principle that private property and corporations exercising public franchises or special privileges must submit their use to the control of the state for the common good. There is no question but that this is an exercise of the police power. Indeed, counsel for the city in their oral argument admitted it. It has been so recognized by every court which has had the subject under consideration. Yeatman v. Towers et al., 126 Md., 513; City of Benwood et al. v. Public Service Comm., 75 W. Va., 127; State, ex rel. Webster, v. Superior Court, 67 Wash., 37; Idaho Power & Light Co. v. Blomquist et al., 26 Idaho, 222; Seattle Electric Co. v. City of Seattle, 78 Wash., 203; Puget Sound Traction, Light & Power Co. v. Reynolds et al., 244 U. S., 574; Munn v. Illinois, 94 U. S., 113; Home Telephone & Telegraph Co. v. City of Los Angeles, 211 U. S., 265, and Lima Tel. & Teleg. Co. v. Public Utilities Commission, ante, 110.

Recurring again to the home-rule constitution conferring police power upon charter cities, we find that provision limited by the following language : Section -3, Article XVIII. “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict zvith general laws.”

In the present case, assuming that the charter city had the right to adopt this police regulation, the legislature, meanwhile, in conformity with its constitutional grant, had provided by general law for the creation of the public utilities commission and clothed it with supreme powers which are in direct conflict with the alleged power of rate regulation found in the city charter. In speaking of a police regulation adopted by the city of Fremont under authority of the quoted section, this court said in the case of City of Fremont v. Keating, 96 Ohio St., 468, 470: “This statute is a police regulation, and, under the section of the constitution above referred to, the municipality has the right to adopt and enforce within its limits police regulations in regard to the same subject-matter, not in conflict with this statute.”

The foregoing cases disclose that under constitutional provisions similar to our own other jurisdictions have subordinated the police power of rate fixing to the control of the various commissions established by legislative action.

Section 11, Article XI, of the Constitution of the state of Washington, provides that any city “may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.” This is substantially the language of the Ohio amendment. In construing the quoted provision of the Washington constitution the supreme court of that state held that the right of the city to exercise the police power over a particular subject-matter ceases when the state acts by establishing commission control. In that case there was an attempt by the city of Seattle to regulate the operation of the street railroads, which by the terms of the general law had been made common carriers, subject to commission control.

The case of State, ex rel. Webster, v. Superior Court for King Co., 67 Wash., 37, was peculiarly similar to the instant case. That, was a telephone company case. The procedure in that case covers this like a blanket. The telephone company was operating its telephone system in the city of Seattle. In June, 1910, complaint of a patron of the company was made to the public service commission of that state, and hearing was had, and an order was made directing the company to inaugurate a new schedule of rates higher than those fixed in the franchise theretofore granted by the city. As in this case, the city of Seattle attempted to enjoin the company from collecting the rates fixed by the commission. Thereupon the relator invoked the original jurisdiction of the supreme court of Washington in prohibition, asking that “a writ be made to run against the superior court, prohibiting it from further proceeding in defiance of the order of the public service commission.” The court held that, under the provision of the Washington constitution quoted, there remained the reservation of general legislative power in the state, and that “a franchise granted by a city to a telephone company under authority of a special city charter is subject to such reservation, and may be controlled or modified by subsequent acts of the legislature,” and awarded a writ of prohibition against the superior court.

To the same effect is the decision of the supreme court of that state in State, ex rel. Great N. Ry. Co., v. Railroad Commission, 52 Wash., 33.

The provision of Section 16, Article IX of the Missouri Constitution, adopted in 1875, is as follows : “Any city * * * may form a charter for its own government, consistent with and subject to the Constitution and laws of this State,” etc.

In State, ex rel. Gardner, v. M. & K. Telephone Co., supra, the supreme court of Missouri held that' the police power of rate making was not a purely municipal power, and that under the provisions of the constitution a city “may form a charter for its own government;” but the power of price regulation for telephone service within the city was not conferred upon the city by that constitutional provision.

By the provisions of the constitution of Oregon the voters of a municipality are authorized to enact and amend their charters “subject to the Constitution and criminal laws of the State of Oregon.” That state had created a public board known as the public service commission of Oregon, with power to make or substitute such rate or rates as should be just and reasonable. The supreme court of the state held that the constitutional grant did not empower the cities of Oregon “to provide for the fixing of rates of public utilities granted franchises within their limits, which cannot be changed by a commission created by general law.”

Cases construing the provisions of the California constitution would not be helpful in determining this case for the reason that the freeholders’ charters of that state granting police power emanate from the legislature. While Section 8, Article XI of the California Constitution, provides that any city “may frame a charter for its own government, consistent with and subject to the constitution,” the constitution expressly provides that such charter shall be submitted to the legislature, and if approved by a majority of each house, shall become the organic law of the city. They therefore obtain, in respect to matters pertaining to police regulation, their grant of power directly from the sovereign authority. This explains the language in Home Telephone & Telegraph Co. v. Los Angeles, 211 U. S., 265, where it is held: “Only the legislature of a State, or a municipality specifically authorized thereto by the legislature, can surrender by contract a governmental power such as fixing rates.”

The supreme court of Oregon in the case of Woodburn v. Public Service Commission, supra, held that enabling provisions of the Oregon constitution, empowering cities to enact charters “subject to the Constitution and criminal laws of the State of Oregon,” did not empower municipalities with authority to fix the rates of public service utilities, granted franchises within their limits, which could not be changed by a commission created by a general law. On page 127 the court says: “The right of the state to regulate rates by compulsion is a police power, and must not be confused with the right of a city to exercise its contractual power to agree with a public service company upon the terms of a franchise. The exercise of a power to fix rates by agreement does not include or embrace any portion of the power to fix rates by compulsion;” that when a city entered into a contract it did so subject to the reserved right of the state to employ its police power to compel a change of rates; that when the state did speak “the municipal power gave way to the sovereign power of the state.” In that case the telephone company had applied to the public service commission for permission to increase telephone rates above that fixed in the franchise obtained from the city council.

In the instant case the city also contends that it has the right to enforce compulsory rate regulation under the provisions, of Section 4, Article XVIII of the Constitution, as amended in 1912. That section provides that “Any municipality * * * may contract with others” for the product or service of public utilities. It will be seen that this section does not apply merely to cities with home-rule charters, but to any municipality in the state. The grant of power therein conferred is substantially similar to those theretofore enjoyed by cities and villages under legislative grants where they were authorized to contract with others for the products or services of utilities, such as lighting the streets or furnishing water to the municipality. (Section 3809, General Code.) The scope of the constitutional grant above referred to is no greater than that theretofore contained in the statute, and yet no one can contend that the latter conferred upon municipalities the right to enforce compulsory rates. A contract implies the assent of both the contractor and contractee, and this is all that the constitutional provision intended. The state neither i-n terms nor by intendment conferred upon the municipalities of the state the sovereign power of unilateral rate making for public utilities zvithout a contract assented to by both parties thereto. As stated in the Woodburn case, supra, the power to fix rates by agreement did not include the power to fix rates by compulsion. In the- latter case, the supreme court of Oregon, in support of the principle under discussion, cited the case of Benwood v. The Public Service Commission, 75 W. Va., 127, where it is held that the provision contained in a municipal charter “authorizing the municipal corporation to ‘contract and be contracted with’ did not delegate beyond the State’s control the power to fix public service rates.”