author: Donahue, J.

text:
    Greenburg v. The City of Cleveland. Stein v. The City of Cleveland.

      Constitutional law — Municipal ordinance — Attempt at pocket-picking a misdemeanor — Local police regulations — Section 3, Article XVIII, Constitution, 1912 — Criminal lam.

    1. Section 3 of Article XVIII of the Constitution of Ohio specifically
    authorizes municipalities “to adopt and enforce within their limits, such local police * * * regulations, as ar$ not in conflict with the general laws.”
    2. An ordinance of a municipality, providing that “Any person, who, otherwise than by force and violence or by putting in fear, attempts to steal and take from the person of another, anything of value, shall be guilty of a misdemeanor * * *,” is not in conflict with the general laws of this state, and is a valid and constitutional exercise of local police power conferred upon municipalities by Section 3 of Article XVIII of the Constitution of Ohio.
    (Nos. 15861 and 15862
    Decided June 21, 1918.)
    Error to the Court of Appeals of Cuyahoga county.
    The above entitled cases involve the same question, and were heard and submitted together.
    In each of these cases, the plaintiff in error, by affidavit filed in the municipal court, was charged with a violation of the provisions of an ordinance of the city of Cleveland which reads as follows:
    “Any person, who, otherwise than by force and violence or by putting in fear, attempts to steal and ta*ke from the person of another anything of value, shall be guilty of a misdemeanor,” etc.
    The plaintiff in error in each case filed a demurrer to the affidavit, on the ground that it did .not state an offense against the laws of the city of Cleveland, or the state of Ohio. This demurrer was overruled and a plea of not guilty entered. Trial was had, resulting in a conviction in each case.
    The court of appeals of Cuyahoga county affirmed the judgments of the municipal court.

      Messrs. Reed, Meals & Eichelberger and Mr. Herman E. Kohen, for plaintiffs in error.
    . Mr. W. S. FitzGerald, director of law, and Mr. James L. Lind, city prosecutor, for defendant in error.
   Donahue, J.

It is contended on the part of each of the plaintiffs in error that the city of Cleveland has no authority to pass this ordinance; that the prohibition of crimes and offenses lies within the dominion of police power; and that the exercise of police power is the exclusive prerogative of the state.

While this proposition is fundamentally true, yet the exercise of this power is of such vital importance to large centers of population that it is the rule and not the exception that it is exercised by the state, at least to a limited degree, through the agency of municipalities — as well as through the general laws operating in all parts of the state. But of course the exercise of this power by local authorities must conform to the general laws of the state.

It was held by this court in the case of Bliss et al. v. Kraus, 16 Ohio St., 54, that “The power of creating municipal corporations necessarily implies authority to confer upon them such police powers as may be necessary for their internal government.”

In this state, prior to the amendment of our constitution in 1912, the general assembly of Ohio conferred upon the municipalities of the state the right to exercise certain police powers. Section 3658, General Code of Ohio, reads:

“To prevent riot, gambling, noise and disturbance, indecent arid disorderly conduct or assemblages, and to preserve the peace and good order, and protect the property of the corporation and its inhabitants.”

This would seem to be sufficient authority to authorize the municipality to enact the ordinance under which these prosecutions were had; but it is insisted that the offense prohibited in the ordinance is not an offense against property, but an offense against the person, that all the other provisions of Section 3658 relate solely to the public peace, and that the power conferred by that section is limited by the provisions of Section 3664, General Code, which section designates the specific offenses that may be the subject of municipal control.

If this were conceded, it is equally evident that Section 3664, General Code, is sufficiently comprehensive to authorize the council of a municipality to pass the ordinance in question. This latter section specifically authorizes municipalities to punish pickpockets and thieves, or persons who practice any trick, game or device with intent to swindle. Certainly this delegation of police power includes substantially within its terms authority to prevent any attempt upon the part of this class of criminals to operate within the territorial limits of the municipality.

The offense defined in this ordinance, however, is of a dual nature. It is a distinct and separate crime from the crime of pocket-picking, just as pocket-picking is a distinct and separate crime from the crime of larceny. State v. Whitten, 82 Ohio St., 174.

While pocket-picking and attempt at pocket-picking would naturally be classed as ■ offenses against the person; yet they also partake of the nature of an offense against property, and therefore come clearly within the provisions of Section 3658, General Code, authorizing municipalities “to protect the property of the corporation and its inhabitants.”

It is contended, however, that the legislature of Ohio having enacted a statute punishing the crime of pocket-picking, it has preempted the field of legislation on this subject, and that its jurisdiction is exclusive.

This court has held that a municipal corporation may provide for the punishment of an act which is also, a misdemeanor under the state law. Wightman v. State, 10 Ohio, 452, and Koch v. State, 53 Ohio St., 433.

If this were not a correct statement of the law, then Sections 3658 and 3664, General Code, might just as well never have been enacted, for the general assembly of Ohio has enacted laws covering practically every subject-matter mentioned in these sections.

The disposition of this case, however, does not depend upon the construction of these statutes conferring police powers upon municipalities. Section 3, Article XVIII of the Constitution of Ohio, as amended September 3, 1912, confers specifically upon municipalities the authority “to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

This ordinance is an exercise of the local police power. Section 3, Article XVIII of the Constitution, clearly contemplates that both the state and the municipalities of the state may exercise the same police power; the only limitation being that the exercise of that power by a municipality shall not conflict with the general laws of the state. There is no statute of this state making it an offense to attempt to steal and take from the person of another anything of value, otherwise than by force and violence and.by putting in fear. That being true, of course this ordinance does not conflict with the general laws of the state, and, if there were a statute creating the same offense, it could not be exclusive, even if the general assembly of Ohio in express terms prohibited the municipality from legislating upon the same subject-matter. City of Fremont v. Keating, 96 Ohio St., 468.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Johnson, JJ., concur.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    The Interurban Railway & Terminal Co. v. The Public Utilities Commission.

      Franchises — Street and interurban railways — Municipal ordinance becomes a contract, -when — Police power — Exercise by state and subdivisions — Impairment of existing contracts — Public utilities commission — Jurisdiction — Complaint against rates — Before existing franchise expires — Constitutional law.

    1. When the terms of a valid ordinance granting a franchise to a street or interurban railway company are accepted by the grantee, such action constitutes a contract between the parties. As long as the company retains the franchise and operates its road thereunder its terms must control. (Interurban Ry. & Term. Co. v. City of Cincinnati, 93 Ohio St., 108, approved and followed.)
    2. The state cannot be deprived of its right to the proper exercise of the police power; and none of its subdivisions can bind itself by contracts which are or which may become deleterious to the peace, order, health or morals of the people.
    3. A contract concerning proprietary rights, and harmless in itself, made by a municipality in the exercise of power clearly conferred, is protected by the constitution, and the police power cannot be invoked to abrogate or impair it.
    4. The statutes of Ohio which create the public utilities commission and define its powers do not confer authority on the commission to change rates fixed by the terms of valid contracts made by a public utility with a municipality in the exercise of powers clearly conferred upon it.
    (No. 15852
    —Decided June 21, 1918.)
    Error to the Public Utilities Commission.
    Plaintiff in error filed its complaint with the public utilities commission, praying that the commission enter into an investigation of rates of fare then in existence on the road of plaintiff in error, and praying for an increase thereof.

      It appears from- the complaint that certain grants have been made by different subdivisions of the state through which the complainant’s line runs, which have been accepted by the company. These grants provide for certain rates of fare over the line.
    The city of Cincinnati, one of the parties mentioned in the complaint, filed its demurrer to the complaint on the following grounds:
    ‘T. That the complaint does not state facts sufficient to constitute a cause of action.

      “2. That the Public Utilities Commission of Ohio has no jurisdiction over the subject-matter of said complaint.
    “3. That said commission has no jurisdiction over the city of Cincinnati.”
    , This demurrer was sustained and the complaint dismissed. To that order of the commission error is prosecuted to this court.

      Messrs. Dinsmore & Shohl, for plaintiff in error.

      Mr. Joseph McGhee, attorney general, and Mr. C. A. Radcliffe, for defendant in error.

      Mr. Saul Zielonka, city solicitor, and Mr. Wm. Jerome Kuertz and Mr. Charles E. Weber, assistant city solicitors, for the city of Cincinnati.
   Johnson, J.

The grant involved in this case, in so far as it relates to the city of Cincinnati and Pleasant Ridge, was under investigation by this court in Interurban Railway & Terminal Co. v. City of Cincinnati, 93 Ohio St., 108. The syllabus of that case is as follows: “An ordinance passed by a village council, granting a franchise to an interurban railway company to construct its line through the village, contained the following provision: ‘Should the village of Pleasant Ridge be annexed to the city of Cincinnati, the rate of fare charged for a ride in either direction between any point in said village and the Cincinnati terminus shall not exceed five cents.’' The company thereafter duly accepted the franchise and constructed, maintained and operated its line thereunder. Subsequently the village was annexed to the city. Held: The acceptance of the grant by the company constituted a binding contract between the parties. As long as the company retains the franchise and operates its road thereunder its terms must control.”

The other portions of the plaintiff in error’s line were constructed, maintained and operated under similar grants of franchises, which were accepted by the company.

The provisions of the General Code with reference to the power to fix the terms and conditions of such grants apply both to councils of municipalities and the commissioners of counties through which the lines run.

Section 3443, Revised Statutes, which was in effect at the- time of the making of these grants (and which is now Section 9113, General Code), provides that the “Council, or the commissioners, as the case may be, shall have the power to fix the terms and conditions upon which such railways may be constructed, operated, extended, and consolidated.”

In the case above referred to it is said at page 122: “It is familiar law that when the terms of a valid ordinance are accepted by a grantee, such action constitutes a contract, and the rights of the parties are to be determined by the terms of the contract itself. City of Columbus v. Street Rd. Co., 45 Ohio St., 98; The Cincinnati & Springfield Ry. Co. v. Village of Carthage, 36 Ohio St., 631; The East Ohio Gas Co. v. City of Akron, 81 Ohio St., 33; City of Cleveland v. Cleveland City Ry. Co., 194 U. S., 517.”

In Cleveland v. Cleveland City Railway Co., 194 U. S., 517, the court says, at page 533:

“The statutes show that there was lodged by the legislature of Ohio in the municipal council of Cleveland comprehensive power to contract with street railway companies in respect to the terms and conditions upon which such roads might be constructed, operated, extended and consolidated, the only limitation upon the power being that in case of an extension or consolidation no increase in the rate of fare should be allowed.

“That in passing ordinances, based upon the grant of power referred to, the municipal council of Cleveland was exercising a portion of the authority of the State, as an agency of the State, cannot in reason be disputed. If, therefore, the ordinances passed after August, 1879, and referred to previously, which ordinances were accepted by the predecessors of the complainant, with whom it is in privity, constituted contracts in respect to the rates of fare to be thereafter charged upon the consolidated and extended lines (affected by the ordinances) as an entirety, it necessarily follows that the ordinance of October, 1898, impaired these contracts.

“The question for decision then is Did the consolidated ordinance of February, 1885, and the ordinances thereafter passed and accepted, already referred to, constitute binding contracts in respect to the rates of fare to be thereafter exacted upon the consolidated and extended lines of the complainant ?

“That in the courts of Ohio the acceptance of an ordinance of the character of those just referred to is deemed to create a binding contract is settled. Railway Co. v. Village of Carthage, 36 Ohio St., 631, 634; City of Columbus v. Street Railroad Co., 45 Ohio St., 98. But let us consider the question without treating the Ohio decisions as conclusive.”

The federal supreme court then proceeds, in keeping with its rule, to determine for itself the existence or nonexistence of the asserted contract, and whether its obligation had been impaired. After this independent inquiry, the court arrived at the conclusion that there was a binding contract.

In this proceeding the public utilities commission is a party. Plaintiff in error rests on the proposition that authority has been conferred upon the commission to fix the rates to be charged by the complainant, notwithstanding, and in disregard of, the contract. It is contended that this may be done in the exercise of the police power of the state.

Many authorities are cited in support of the proposition, which is familiar and well settled, that the state itself cannot, by contract, deprive itself of the proper exercise of the police power. Its elastic and undefined nature is everywhere recognized, as well as the limitations upon its exercise as against rights guaranteed and protected by the constitution.

In Walla Walla City v. Walla Walla Water Co., 172 U. S., 1, the grant of the right to supply water to a municipality and its inhabitants through pipes and mains laid in the streets upon the conditions named in the grant was held to be a contract protected by the federal constitution against state legislation to impair it. In the opinion it is said, at page 15:

“The argument that the contract is void as an attempt to barter away the legislative power of the city council rests upon the assumption that contracts for supplying a city with water are within the police power of the city, and may be controlled, managed or abrogated at the pleasure of the council. This court has doubtless held that the police power is one which remains constantly under the control of the legislative authority, and that a city council can neither bind itself, nor its successors, to contracts prejudicial to the peace, good order, health or morals of its inhabitants; but it is to cases of this class that these rulings have been confined.

“If a contract be objectionable in itself upon these grounds, or if it become so in its execution, the municipality may, in the exercise of its police power, regulate the manner in which it may be carried out, or may abrogate it entirely, upon the principle that it cannot bind itself to any course of action which shall prove deleterious to the health or morals of its inhabitants. In such case an appeal to the contract clause of the Constitution is ineffectual. Thus in Fertilizing Co. v. Hyde Park, 97 U. S., 659, an act of the General Assembly of Illinois authorized the Fertilizing Company to establish and maintain for fifty years certain chemical works for the purpose of converting dead animals into agricultural fertilizers, and tó maintain depots in Chicago for the purpose of receiving and carrying out of the city dead animals and other animal matter which it might buy or own. Subsequently, the charter of the village of Flyde Park was revised, and power given it to define or abate nuisances injurious to the public health. It was held that under this power the village had the right to prohibit the carrying of dead animals, or offensive matter, through the streets; that the charter of the company was a sufficient license until revoked, but was not a contract guaranteeing that the company might continue to carry on a business which had become a nuisance by the growth of population around its works, or that it should be exempt for fifty years from an exercise of the police power of the State, citing Coates v. Mayor &c. of New York, 7 Cowen, 585.

“Substantially, the same ruling was made in Butchers’ Union Co. v. Crescent City &c. Co., 111 U. S. 746, wherein an act of the legislature of Louisiana, granting exclusive privileges for maintaining slaughter houses, was held to be subject to subsequent ordinances of the city of New Orleans opening to general competition the right to build slaughter houses.

“The same principle has been applied to charters for the maintenance of lotteries which, upon grounds of public policy, have been held to be mere licenses and subject to abrogation in the exercise of the police power of the government; Boyd v. Alabama, 94 U. S., 645; Stone v. Mississippi, 101 U. S., 814; Douglas v. Kentucky, 168 U. S., 488; as well as to laws regulating the liquor traffic, Beer Co. v. Massachusetts, 97 U. S., 25; Metropolitan Board of Excise v. Barrie, 34 N. Y., 657; and even laws regulating the inspection of coal oil; United States v. DeWitt, 9 Wall., 41; Patterson v. Kentucky, 97 U. S., 501. In the latter case it was held that a person holding a patent under the laws of the United States for an invention was not protected by such patent in selling oil condemned by a state inspector as unsafe for illuminating purposes.

“Under this power and the analogous power of taxation we should have no doubt that the city council might take such measures as were necessary or prudent to secure the purity of the water furnished under the contract of the company, the payment of its just contributions to the public burdens, and the observance of its own ordinances respecting the manner in which the pipes and mains of the company should be laid through the streets of the city. New York v. Squire, 145 U. S., 175; St. Louis v. Western Union Tel. Co., 148 U. S., 92; Laclede Gas Light Co. v. Murphy, 170 U. S., 78. But where a contract for a supply of water is innocuous in itself and is carried out with due regard to the good order of the city and the health of its inhabitants, the aid of the police power cannot be invoked to abrogate or impair it.”

And in Vicksburg v. Vicksburg Waterworks Co., 206 U. S., 496, it was held that a state may, in matters of proprietary rights, exclude itself and authorize its municipal corporations to exclude themselves, from the right of regulation of such matters as water rates. At .page 508 of the opinion, it is said: “That a State may, in matters of proprietary rights, exclude itself from the right to make regulations of this kind, or authorize municipal corporations to do so, when the power is clearly conferred, has been too frequently declared to admit of doubt.” (Citing authorities.)

In Home Telephone & Telegraph Co. v. City of Los Angeles, 211 U. S., 265, at page 273, it is said: “It has been settled by this court that the State may authorize one of its municipal corporations to establish by an inviolable contract the rates to be charged by a public service corporation (or natural person) for a definite term, not grossly unreasonable in point of time, and that the effect of such a contract is to suspend, during the life of the contract, the governmental power of fixing and regulating the rates. Detroit v. Detroit Citizens’ St. Ry. Co., 184 U. S., 368, 382; Vicksburg v. Vicksburg Water Works Co., 206 U. S., 496, 508. But for the very reason that such a contract has the effect of extinguishing pro tanto an undoubted power of government, both its existence and the authority to make it must clearly and unmistakably appear, and all doubts must be resolved in favor of the continuance of the power.”

Plaintiff in error cites State, ex rel. Webster, v. Superior Court, 67 Wash., 37, and Puget Sound Traction Co. v. Reynolds, 244 U. S., 574, in support of its view. Both cases arose in the state of Washington. In the Puget Sound Traction case the federal supreme court shows that the constitution of Washington specifically limits the powers of cities touching the subjects here involved. Mr. Justice Pitney says at page 579: “The Constitution of Washington, Art. XII, § 18, requires the legislature to pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight, and to correct abuses and prevent discrimination in rates by railroads and other common carriers, and provides that ‘A railroad and transportation commission may be established, and its powers and duties fully defined by law.’ By Art. XI, § 10, any city containing a population of twenty thousand inhabitants or more is permitted to frame a charter for its own government ‘consistent with and subject to the constitution and laws of this state.’ This constitution was adopted in 1889, long previous to the date of the earliest of plaintiff’s franchise ordinances. The Supreme Court of Washington has held that the provisions of municipal charters are subject to the legislative authority of the State; that the Public Utilities Act superseded any conflicting ordinance or charter provision of any city; and that contractual provisions in franchises conferred by

municipal corporations without express legislative authority are subject to be set aside by the exercise of the sovereign power of the State. Ewing v. Seattle, 55 Washington, 229; State ex rel. Webster v. Superior Court, 67 Washington, 37, 43-50.”

It will be observed that the Constitution of the State of Washington itself determined the question, and that the Ohio Constitution contains no such provisions.

The federal supreme court points out that the Washington cases are very clearly distinguishable from another recent case, Detroit United Ry. v. Michigan, 242 U. S., 238, 248. In that case franchises for city lines had been given by ordinances of Detroit. Franchises for suburban lines had been given by village and township ordinances which fixed the fares on a basis more favorable to grantees. Thereafter the limits of the city were extended so as to embrace parts of the outlying railways. The state courts held that the outlying lines, which were embraced within the extended limits, came also within the fares fixed by the city ordinances. At page 253, the federal supreme court says: “Because of the provision of § 10 of Article 1 of the Constitution of the United States, it was not within the power of the State of Michigan by any subsequent legislation to impair the obligations of those contracts, and since the judgments of the Supreme Court of that State gave such an effect to the annexation Acts of 1905 and 1907, in conjunction with the ordinances of 1889, as to impair those obligations, the judgments must be reversed.”

The two recent cases from the United States supreme court, just cited, fairly comprehend and dispose of the questions here suggested.

The contract in this case is of harmless character, “innocuous in itself,” and is entitled to the constitutional protection.

As we have seen, it has been conclusively determined that in Ohio full authority had been conferred for the making of the contract. In addition to this the people by an amendment to the constitution have invested the municipalities of the state with plenary power to deal with the subject by binding contracts. Section 4 of Article XVIII provides that “Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service.” Therefore, the municipality does not now get its authority from the legislature, but from the constitution. The legislature cannot deprive it of that power.

The constitutional provision referred to was not adopted until after the making of the contract involved in this case, and the validity of that contract is of course to be determined by the law in effect at the time it was made. But inasmuch as under the authorities already cited the contract was valid and binding when made, we see no reason to deny to the municipality authority to insist upon its rights under the contract, now that its power to deal with the subject is sanctioned by the organic law.

Moreover, we are not able to find that the legislature has attempted to confer upon the public utilities commission the authority to change rates fixed by contract between the company and local authorities.

It is contended that such authority has been conferred upon the commission by Section 524 et seq. of the General Code. Section 524 provides for the filing of a complaint before the commission of rates, fares, etc., that are alleged to be unreasonable or unjustly discriminatory. The succeeding sections provide that upon an investigation, if the rate or rates are found to be unreasonable or unjustly discriminatory, the commission may fix, and order substituted therefor, such rate or rates as it shall have determined to be just and reasonable. There is no provision in any of these sections which expressly authorizes the commission to change rates fixed by contract.

In the very recent case of Quinby et al. v. Public Service Commission, decided April 5, 1918, by the court of appeals of New York, 119 N. E., 433, the power of the public utilities commission of New York to change rates of a street railroad constructed under consent of the property owners and local authorities, where such consent was based upon a stipulated maximum fare, was attacked. Subdivision 1 of Section 49 of the Public Service Commission law of that state provides that whenever the commission shall be of opinion, after a hearing had upon its own motion or upon a complaint, that the rates, etc., charged for the transportation of persons or property by any common carrier, street railroad, etc., subject to its jurisdiction, are unjust, discriminatory or unduly preferential, it may determine the just and reasonable rates and fares thereafter to be observed. The constitution of New York, Article III, Section 18, provides that “no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained.” The section further provides that if consent cannot be obtained a proceeding may be conducted in court for'the determination of the subject.

The extent of the authority of the commission where a railroad was operated by the consent of the local authorities, as stated, was considered in that case, and it was held in paragraph 4 of the syllabus that “Under Const, art. 3, § 18, providing for consent of property owners and local authorities to the construction and operation of street railroads, where such consent was based upon a stipulated maximum fare, the public service commission is without jurisdiction over the subject-matter of changing such rate, and the law does not attempt to give it such authority.” It will be observed that the provisions of Subdivision 1, of Section 49, of the New York statute, are similar to those of the Ohio statute.

The court, at page 437 of the opinion, says:

“In the absence of clear and definite language conferring, without ambiguity, jurisdiction upon the public service commission to increase rates of fare agreed upon by the street railroad and the local authorities, we should not unnecessarily hold that the Legislature has intended to delegate any of its powers in the matter, whatever its powers may be. The Public Service Commissions Law (sections 26, 49, subd. 1) and the Railroad Law (section 181) deal with maximum rates of fare established by statute, but make no reference in terms to rates established by agreement with local authorities.

“In regulating rates three courses were open to the Legislature: (1) To prescribe rates itself; (2) to delegate the power to the commission; (3) to leave the matter to agreement between the street railroad company and the local authorities. It has constitutionally conferred on the public service commission certain functions [Citing authorities], which plainly include the power to regulate rates fixed by statute; and while it may be said that it has undertaken to delegate to the public service commission ‘the same power’ that it has to regulate rates of fare (Railroad Law, § 181), it is impossible to find a word in the statutes which discloses the legislative intent to deal with the matter of rates fixed by agreement with local authorities. As it has often been held in connections other than that of legislative power over them that such agreements are valid, it may well be inferred that the Legislature excluded them from consideration by failure to mention them, and that it has made no attempt to turn' them over to the public service commission for revision.”

This reasoning applies with singular force to the situation in Ohio and to the question we have here.

The public utilities commission of Ohio is created, and its duties defined, by statute. In the recent case of City of Cincinnati v. Public Utilities Commission, 96 Ohio St., 270, it is declared in the syllabus: “The powers of the public utilities commission are conferred by statute and it possesses no authority other than that thus vested in it.” The general assembly not having provided that the commission may interfere with valid and binding contracts, we may well conclude that it excluded them from consideration.

In cases such as we have here it is a prerequisite of the grant to the company that a certain proportion of the abutting property owners shall first consent. And the statute requires that a municipality shall award the franchise to the bidder who proposes to carry passengers on the route for the lowest rate of fare, after public advertisement. The presumption is that such consents are given in consideration of the terms of the grant to be complied with by the company, including the rate of fare agreed on. It would not only be a vain and empty arrangement, but a deceptive one, if these provisions could be disregarded and the company nevertheless, retain and exercise all of the valuable rights and privileges granted to it in consideration thereof.

The order of the commission will be affirmed.

Order affirmed.

Nichols, C. J., Wanamaker, Newman, Matthias and Donahue, JJ., concur.


text:
    Mahoning & Shenango Railway & Light Co. v. The Public Utilities Commission.

      Public utilities commission — Jurisdiction — Interurban railways — Application for increased passenger fares — Before existing franchise-contract expires.

    (No. 15849
    Decided June 21, 1918.)
    Error to the Public Utilities Commission.
    Facts are stated in the opinion.

      Mr. William M. Coleman; Messrs. Harrington, DeFord, Heim & Osborne and Mr. T. H. Hogsett, for plaintiff in error.

      Mr. M. S. Webster and Mr. D. Curtis Reed, amici curiae.

      Mr. Joseph McGhee, attorney general, and Mr. C. A. Radcliffe, for defendant in error.

      Mr. Max E. Brunszvick, solicitor of Youngstown, and Mr. W. F. MacQueen, solicitor of Niles, submitted brief.
   Johnson, J.

Plaintiff in error filed its complaint before the public utilities commission, praying for an order authorizing it to increase its passenger fares on its interurban railroad. The plaintiff in error is a consolidated corporation and as such owns and operates lines of interurban railroad. The rates of fare for passengers on the road are fixed by franchise contracts entered into by the predecessors of plaintiff in error and certain municipalities and boards of county commissioners of counties through which the lines extend.

The .complaint alleges that by reason’ of inadequate, insufficient and unreasonable rates of fare complainant is unable to properly and adequately maintain said lines of road and equipment and is unable to perform its duties as a common carrier between said points. The commission filed a general demurrer to the complaint, which was sustained, and the complaint dismissed.

This case was argued and submitted on the same day as The Interurban Railway & Terminal Co. v. The Public Utilities Commission, ante, 287, the same questions were presented, and, for the reasons given in the written opinion rendered in deciding that case, the order of the public utilities commission in the present case will be affirmed.

Order affirmed.

Nichols, C. J., Wanamaker, Newman, Matthias and Donahue, JJ., concur.


text:
    The Toledo, Bowling Green & Southern Traction Co. v. The Public Utilities Commission.

      Public utilities commission — Jurisdiction —Interurbmi railways — Application for increased passenger fares — Before existing franchise-contract expires.

    (No. 15922
    —Decided June 21, 1918.)
    Error to the Public Utilities Commission. •
    Facts are stated in the opinion.

      Mr. J. W. Heintzman, for plaintiff in error.

      Mr. Joseph McGhee, attorney general, and Mr. C. A. Radcliffe, for defendant in error.
   Johnson, J.

Plaintiff in error is a corporation organized and operated as an interurban railroad company between the cities of Toledo and Findlay, Ohio, passing through various municipalities and counties between those points. The plaintiff company consists of consolidations, and parts of roads acquired during a period of years, which roads were operated under grants by municipal councils and county commissioners.

Plaintiff in error filed its complaint with the public utilities commission, praying for an increase of rates fixed by the grants, upon the ground of their inadequacy. The city of Bowling Green filed a demurrer to the petition, which was sustained by the commission, and the complaint dismissed.

This cause was argued and submitted at the same time as the two cases immediately preceding

it in this volume, the same questions were presented, and, for the reasons given in the written opinion upon which The Interurban Railway & Terminal Co. v. The Public Utilities Commission, ante, 287, was this day decided, the order of the commission in this case will be affirmed.

Order affirmed.

Nichols, C. J., Wanamaker, Newman, Matthias and Donahue, JJ., concur.


author: Jones, J.

text:
    Ziehm, by etc., v. Vale.

      Negligence — Automobile owner — Warns away 'intruding child — Duty to exercise reasonable care continues, when — Liability — Attractive nuisance — Statical condition made perilous— • Charge to jury.

    1. Where the owner of an automobile, upon returning to his car, finds an infant four and one-half years of age thereon, and twice drives the infant from the car, the owner is not thereby absolved from further duty towards such infant. Under such circumstances, when the child still remains in close proximity to the car, the driver is required to exercise reasonable care to avoid injury to the child. (W. & L. E. Rd. Co. v Harvey, 77 Ohio St., 235, distinguished.)
    2. The principle of non-liability applied in the Harvey case, supra, does not apply where the statical condition of the premises is made perilous by the active and negligent operation thereof by the owner.
    (No. 15789
    Decided June 21, 1918.)
    Error to the Court of Appeals of Cuyahoga county.

      At the time of the accident the plaintiff was an infant about four and one-half years of age. The defendant was driving an open, fore-door, seven-passenger automobile. On the morning of June 15, 1913, the defendant had driven his car to his father-in-law’s house on East 64th street in Cleveland. He left his automobile standing at the curb on the right-hand side of the street in front of his father-in-law’s house, which he entered, remaining there about twenty minutes. Returning to his car he found the plaintiff and two or three other small boys upon the right-hand running board of his car near the curb. The children asked to be given a ride. This the defendant refused and drove them away from the car. The defendant proceeded in front of his car, cranked his engine, and, upon getting into the car on the left-hand side, noticed the plaintiff upon the left-hand running board of his car. The car was one with a right-hand drive.
    At this instant point of time, there is considerable conflict in the testimony as to what occurred. The plaintiff gave testimony tending to show that the little fellow remained on the left-hand running board of the car when the defendant started it. In the defendant’s own testimony, while he concedes that the child appeared upon the left-hand running board after he had cranked his engine, he says that he “shooed him away with his cap,” and that the child left the car for a short distance, and that he did not know the child was on the running board when the car started.

      Upon this.phase of the defendant’s testimony the requests asked by the defendant below were proffered, and refused by the trial court, and in lieu thereof the court charged generally on the subject of ordinary care, as hereafter shown.
    The special requests asked by the defendant and refused were as follows:
    “First: Unless you find from a preponderance of the evidence that the defendant, at the time he started his automobile or while he was running it forward, knew that the plaintiff was then upon the running board of his automobile, then you should return a verdict for the defendant.
    “Second: If you find that the defendant, before starting his automobile forward, had driven the plaintiff away from his automobile, then I say to you that the defendant was under no other or further duty towards the plaintiff, and under such circumstances he was under no duty or obligation to see that the plaintiff remained away from the automobile; and if he then started his automobile forward, not knowing that plaintiff was upon its step or running board, then he would not be liable to the plaintiff in this case, and your verdict should be for defendant.
    “Third: The defendant can only be liable to the plaintiff in case he actually knew that plaintiff was upon the running board or step of his auto at the time he started or while running the same forward. The defendant cannot be held liable merely for neglecting to investigate and find out that plaintiff was upon said running board or step.”

      Under the facts stated the trial court charged the jury as follows:
    “The defendant when he came from the house of his father-in-law if he saw children there in his automobile or upon some portion of it; that is, if he did see them, was under the circumstances surrounding him at the time bound to use ordinary care to determine from the size- and appearance of the children, their age and their discretion, and" to exercise care commensurate with the perils of the situation, if any perils then existed.
    “If you find, however, that the defendant was exercising the degree of care the circumstances required and demanded before he put his automobile in motion, and that after the automobile was in motion the plaintiff jumped upon some portion of it without knowledge on the part of the defendant that the plaintiff was about to do so or had done so, then the defendant would not be liable for any injuries sustained by the plaintiff under such circumstances. If, however, the defendant had reason to believe that children, including the plaintiff, from their conduct and their actions would follow the car or automobile, or come from the side and attempt to climb or jump upon it, or some portion of it, he was bound to use ordinary care in the use of his eyes and senses to avoid injuring them, or any one of them. If he chased these children away and warned them to keep away from his vehicle or car, what did ordinary care require or demand of him at the time he put the automobile in motion? Was he bound to anticipate that the plaintiff would return or that he would not return, or would return and place himself in a position of danger? What would a man of ordinary prudence have done under the circumstances?”
    And further: “I say to you this defendant was bound to know that a child under the age of five years might act upon a childish impulse and if the plaintiff was so close to the car as the defendant got into the car and started it, or put it in motion, and his conduct was such as to lead a prudent man to believe that he was about to jump upon the car, you have a right to inquire what ordinary care and prudence required of the defendant under such circumstances.”
    In the trial court the plaintiff recovered a judgment. This judgment was reversed by the court of appeals, for error in refusing the requests noted, and in submitting to the jury the question of ordinary care, as disclosed in the general charge. This reversal was based chiefly upon the authority of W. & L. E. Rd. Co. v. Harvey, 77 Ohio St., 235. Error is now prosecuted to this court.

      Messrs. Payer, Winch, Rogers & Minshall, for plaintiff in error.

      Messrs. Boyd, Cannon & Brooks, for defendant in error.
   Jones, J.

If there was a violation of legal duty owing by the defendant to the infant child under the circumstances detailed, it would be actionable negligence. In the present case the feature of invitation or license is not involved, for it is conceded that the child was on the car against the express command of the defendant. As disclosed by the first and second special requests, the defendant conceived that he was not liable unless he actually knew that the child was on the running board of the car at the time he started his car or while he was running the same forward. The second request was predicated upon the principle claimed, that after driving the child away from the car there devolved no further duty upon the defendant, and that no obligation rested upon him to see that the child remained away.

The trial court refused to apply the principle of nonliability as requested, but imposed upon the defendant the obligation to use ordinary care, if the circumstances would apprise the defendant, as an ordinarily prudent man, that a child of four and one-half years, acting under childish impulses, would renew his attempt to get upon the running board of the automobile. The court of appeals reversed the judgment on the authority of W. & L. E. Rd. Co. v. Harvey, 77 Ohio St., 235, and in its opinion says: “We think that when the plaintiff left the street for the purposes of travel and got upon the defendant’s automobile without invitation, he was not rightfully there and brought himself fairly within the reason of the rule in the Harvey case and is to be governed by its principles.”

This case is clearly distinguishable from the reported case cited. In that case there was neither knowledge of the presence of the infant nor any active force employed which caused its injury. Under the facts disclosed in the Harvey case, the rule there stated .in the syllabus applies to the condition of the premises, its construction or maintenance, and does not embrace a situation where a statical condition of the premises is made perilous by the active, negligent operation thereof by the owner. If a servant of the company at the time of the injury had failed to exercise ordinary care toward the Harvey child, by operating the turntable under circumstances where an ordinarily prudent person would have known that the life of the child might be imperiled, that case would have assumed an entirely different aspect. This is the situation presented by the nisi prius court in the instant case. It may be conceded that the duty of exercising ordinary care does not inure to the benefit of a bare licensee who commits a trespass, and that a child of plaintiff’s age is incapable of committing a conscious trespass. The Harvey rule is based on the principle that no legal duty devolves upon the landowner to so construct his property as not to injure a child who approaches it without the knowledge or invitation of the occupier. If the driver of this automobile when he approached the car had no knowledge that the child was on the car or in its immediate vicinity, obviously there would be no liability. But when he concedes that he drove the child, first from the right running board, and again from the left running board of his car, would not these and other attending circumstances apprise the defendant that a child of that age, acting under childish instinct, and unaware of its peril, would make still another attempt to board the car? This actually did occur. The trial court was therefore not in error when it charged the jury upon the subject of the defendant using ordinary care under the facts disclosed.

The distinction between the legal duty due uninvited persons, in cases arising from the construction of the premises and in those arising from their negligent operation, is clearly made and discussed in C., H. & D. Rd. Co. v. Aller, 64 Ohio St., 183. On page 193, Shauck, J., in discussing the case of Harriman v. Railway Co., 45 Ohio St., 11, said of that case: “The injury was not occasioned by any real or alleged defect in the construction of the road. The injury there resulted from the operation of the road.”

The petition sufficiently pleaded facts imposing the duty of ordinary care covered by the general charge. It contained an allegation of negligence, charging that the defendant saw and knew that the child was on the running board, or “by the exercise of ordinary care, would have seen that said plaintiff was on the running board of said car.”

For the reasons stated, the judgment of the court of appeals is reversed, and that. of the common pleas affirmed.

Judgment reversed.

Nichols, C. J., Newman, Matthias, Johnson and Donahue, JJ., concur.

Wanamaker, J., concurring. I heartily concur in the judgment in this case.

In the syllabus and the opinion an effort is made to distinguish this ease from the Harvey case, upon which the court of appeals based its judgment.

Whenever a court undertakes to distinguish or differentiate one case from another, a strong presumption arises that the court approves such other case, the judgment, and the course of reasoning through which such judgment was reached.

I desire here and now to register my protest against the judgment of that case. It was an astonisher to the profession and the public at the time it was rendered, in 1907, and indicates the high-water mark of the supreme court of that time in its effort to magnify property right and minimize personal right — the right to life, limb, health and safety — especially when applied to a child four and a half years of age.

The opinion notes more than a hundred cases pro and con, and reviews many of them touching the subject-matter of that case. Concurring in the judgment were Judges Shauck, Crew, Davis and Summers. Judges Spear and Price did not concur.

The supreme court of the United States in Sioux City & Pac. Rd. Co. v. Stout, 17 Wall., 657, decided in 1873, laid down the doctrine that entitled Harvey to a verdict in that case.

The opinion in the Harvey case laments the fact that: “The multitude of circumstances under which the owner of property would be liable for injuries to children, and the very serious burden that was, in consequence, being placed upon the owners of property, were very probably not foreseen in the Stout case.”

Throughout the opinion much consideration is given to the conservation of property, but substantially no regard to the conservation of child life, limb and safety.

Many cases no doubt sustain the Harvey case, but an equal number of cases may be found in the books sustaining witchcraft, slavery, and other inhumanities and infamies, in the light of present-day civilization and jurisprudence.

I desire to especially commend the late lamented Judges Price and Spear for their refusal to concur in the doctrine announced in the Harvey case.


author: By the Court.

text:
    Rogers et al. v. Rea, Trustee, et al.

      Wills■ — Personal trust created, when — Death of trustee — Section 10596, General Code, inapplicable, when.

    (No. 15742
    Decided June 21, 1918).
    Error to the Court of Appeals of Madison county.

      Mr. James F. Bell; Messrs. Owen, Ware & Ozven; Mr. E. E. Cheney and Messrs. Johnson & Miller, for plaintiffs in error.

      Mr. R. H. McCloud; Mr. J. E. Bowman and Mr. C. C. Crabbe, prosecuting attorney, for defendants in error.
   By the Court.

Section 10596, General Code, reads: “If a testamentary trustee dies, declines to accept, resigns, becomes incapacitated, or is removed, and such will has not provided for the contingency of the death, incapacity or refusal of such trustee or trustees to accept or execute the trust, or such will names no trustees, the court having probate of the will may appoint some suitable person or persons to execute the trust, according to the will, who must give bond with security as provided herein.”

We hold that the language of this statute is ■ sufficiently clear and comprehensive to prevent the failure of any valid trust merely because there has been a failure of a trustee; that is, if a valid trust has been created the probate court is authorized to appoint a trustee to administer it “according to the will.”

The contention is made that the testatrix in effect adopted this statute in the will, and that the statute, therefore, is absolutely controlling, unless, as contended in defendant in error’s brief, “the contrary appears, and according to the decisions in this state the contrary can only appear in one of two ways, either by the express provisions of the will, or because the nature of the duty is such that it cannot be performed by another.”

The intention of the testator must prevail, and the question, therefore, is, what was that intention ?

The will is of unusual length and composed of thirteen several items: It evidences the most painstaking care in specific provisions in great detail as to each devise and legacy.

This is particularly noticeable on an examination and analysis of each of the several items, particularly Items 5, 6, 7, 8, 9. and 10. In each of these several items the devises and legacies are so definitely and completely provided for as to prevent any lapse or failure; all of which indicates the testatrix’s knowledge and understanding of the nature of those legacies and devises — that they might fail or lapse — and that, in order to avoid it, special provision was made touching the contingency of death of legatee or devisee.

Again, in Item 12 the testatrix evidences the most thoughtful and painstaking care touching the executors of her will. In the last paragraph of said Item 12 the testatrix says: “It is my will and I do hereby further direct, that in case either one of the persons named as executors of this my last will and testament shall for any reason refuse, neglect or fail to qualify or act as such co-executor as aforesaid, or if he does so qualify and act and then resign or be removed, that thén and in either case the other one is to act alone and have and carry out any and all of the powers and exercise any and all the privileges and discretions herein given to both of them as perfectly and fully and completely as though he had been so named and given such •privileges, discretions and powers alone.”

It will be noted that this applies only to O. P. Converse, of London, and M. L. Rea, of Madison county, Ohio, “as executors.”

In the light of these several items let us now carefully note and critically examine .Item 12,-which is the item purporting to create the trust in question: “After all of the balance of the lands of which I may die seized are sold and converted into money as hereinafter provided, then I do hereby give, devise and bequeath unto O. P. Converse, of London. Madison county, Ohio, all of the balance and residue of my estate, whether it be money or uncollected notes and securities, in trust for the following purposes, to-wit, to collect any uncollected notes that he can reasonably collect, and then to use all the remainder of such notes and the balance of the money belonging to my estate including any that may be so realized from any of said notes and securities for any such charitable purposes that he may deem proper and designate in such amounts as he may designate and think best, for permanent -or temporary charities, and no bond shall be required of him in so doing.”

The language of this item clearly and conclusively exhibits the full and abiding trust and confidence in the judgment and discretion of the trustee, O. P. Converse, in the selection of the beneficiaries, the amounts to be paid and the time and manner of the payment. In short, it makes the judgment and discretion of said Converse absolutely essential to the creation of the trust. Without the trustee, Converse, there could be no trust as contemplated by the testatrix.

This is self-evident when it is noted that she makes no provision whatsoever for any failure by death or otherwise of the trustee to act. This omission by the testatrix is still more significant in view of the fact that that omission does not appear in the other items already referred to.

Manifestly, when she provided that in the event of the death of Converse as executor Rea should act fully and completely as the survivor, she likewise must have had before her the effect of such death as trustee upon the trust that she had created through said Converse.

It is self-evident, therefore, that this was peculiarly a personal trust, a trust that she expected Converse to personally create and ¿xecute, and it is the common experience in such matters that the trustee had an intimate and confidential knowledge of such charities as the testatrix desired to be benefited by her estate.

Therefore, as the trust is clearly dependent for its creation and execution upon the personality of the trustee, from the language of the item of the will purporting to create such trust, as well as from the four corners of the will itself, when such trustee fails, the trust must likewise fail.

One more suggestion will not be amiss to show the impossibility of anyone else than Converse administering the trust. The statute itself uses the language, “the court having probate of the will may appoint some suitable person or persons to execute the trust, according to the will ”

But the will is silent as to how it shall be executed save and except that it be according to the judgment and discretion, not of a trustee, but of Converse the trustee. How could any other person than Converse execute this trust “according to the will?”

Judgment of the court of appeals reversed and judgment for plaintiffs in error.

Nichols, C. J., Wanamaker, Jones, Matthias and Donahue, JJ., concur.

Johnson, J., not participating.


author: Johnson, J. Jones, J.,

text:
    The City of Cincinnati v. The Public Utilities Commission.

      Municipal corporations — • Franchise-ordinance a contract, when — Regulation of price of gas — What statutes a part of contract — Sections 3982 and 3983, General Code, construed — Rights of city upon refusal by company to accept rates — ■Divisible and indivisible contracts — Jurisdiction of public utilities commission— Section '614-44, General Code, inapplicable — Constitutional law — Impairment of existing contracts.

    1. Where an ordinance is passed by a municipal corporation granting to a gas company the right for the term of twenty-five years to furnish natural gas for heating, lighting and power purposes through its mains and appliances in the streets and public places, on terms and conditions contained in the ordinance, which include a provision that the grant is subject to the right of the city to regulate the price of natural gas from time to time as provided by law, the acceptance of the ordinance by the company constitutes a valid contract, and the rights of the parties are to be determined by the contract itself.

      2. In such case the grant to the company is subject to and dependent on the right reserved to the city to fix the price of gas from time to time as provided by law.
    3. Statutes in force at the time a contract is made by a municipality enter into and become part of the contract. Its obligation is to be measured, and performance is to be regulated, by the terms and rules which they prescribe.
    4. By the provisions of Sections 3982 and 3983, General Code (Sections 2478 and 2479, Revised Statutes), two entirely different situations are contemplated and provided for: (a) By Section 3982 the city is given power 10¶ regulate the price of gas from time to time; (b) By Section 3983 it is provided that if the city fixes the price for a period not exceeding ten years, and the gas company assents thereto, the city shall not require it to furnish gas at a less rate during the period agreed on, not exceeding such ten years.
    5. In such case if the company does not assent to the rate fixed by the city for the period not exceeding ten years, the power of the city to regulate the price is as ample as if the ordinance contained no such provision. (State, ex rel., v. Ironton Gas Co., 37 Ohio St., 45, approved and followed.)
    6. The fixing of a rate for the first ten years of a franchise granted for twenty-five years by a city, which reserves to the city the right to regulate rates from time to time as provided by law, does not change the franchise contract nor exhaust the power of the city thereunder. The original agreement constitutes one entire contract and such action conforms to and carries out its provisions.
    7. The provisions of Section 614-44, General Code, were not intended to and do not apply to a contract made prior to the passage of that section and which, by its terms, does not expire for more than one year.
    8. A contract, .such as above described, which is passed in full compliance with authority expressly conferred, is protected by the provisions of Section 10, Article I of the Federal Constitution, that no state shall pass any law impairing the obligation of contracts.
    (No. 15798
    —Decided June 21, 1918.)
    Error to. the Public Utilities Commission.
    The Union Gas & Electric Company and The Cincinnati Gas & Electric Company in September, 1917, filed their complaint with the Public Utilities Commission, in which it is set forth that the council of the city of Cincinnati on August 20, 1917, passed an ordinance regulating the price to be charged for natural gas consumed. A copy of the ordinance was attached to the complaint. The companies complained that the price fixed by the ordinance for natural gas to be furnished for a period of ten years from and after the date thereof to the city of Cincinnati for street lighting and all other purposes and to private consumers at the rate of thirty-five cents per thousand cubic feet, with a discount of five cents per thousand cubic feet, making a net rate of thirty cents per thousand cubic feet, if paid at the office of the company within five days after the delivery of bill, is unreasonable and insufficient to yield reasonable compensation for the service, having due regard to the value thereof and of all the property of complainants actually used and useful for the convenience of the public. They state that they have not accepted the ordinance, but do consent to continue to furnish gas to the city and its inhabitants and to devote their property to such public use during the term fixed by said ordinance, or by the provisions of law. They práyed that the rate fixed by the ordinance be suspended; and the complainants, electing to charge the rate in force immediately prior to the taking effect of the ordinance and offering.to give an undertaking in such an amount as the commission may determine, prayed further that the commission proceed to fix and determine the just and reasonable rate to be charged and collected by the complainants.
    In 1905 the city of Cincinnati passed an ordinance granting a franchise to The Cincinnati Gas & Electric Company to furnish natural gas for heat, light and power purposes to public and private consumers through its s}''stem of gas mains, pipes, fixtures and appliances in the streets and public ways of the city and to occupy such streets and public places for the purposes stated.
    Paragraph 6 of the franchise ordinance contained the provision: “The grant herein made shall continue for twenty-five (25) years from and after the passage and acceptance of this ordinance, subject, however, to the right of the city to regulate the price of natural gas from time to time, as provided by law, and to purchase the plant and works of the gas company as reserved in its contract with said city in that behalf.”'
    The company duly accepted the franchise ordinance, and thereafter leased its .plant, pipes, contracts and franchise to The Union Gas & Electric Company, which has since been operating the same. On the 20th of August, 1917, the council of the city passed the ordinance referred to in the complaint, regulating the price to be charged for natural gas by the companies for ten years, and said ordinance was approved by the mayor on the 29th of August, 1917. Thereafter the companies filed the complaint as above stated with the Commission.
    The City on the 5th of October filed its motion with the Commission to dismiss the complaint on the ground that the Commission was without jurisdiction, for the reasons stated in the motion.
    This motion was overruled by the Commission, and on the application of the Company it made its order directing the Company to give an undertaking in the sum of .$250,000, without additional surety, upon their election to charge the rate in force immediately preceding the effective date of the ordinance. Motions for rehearing having been overruled, this proceeding in error was brought to reverse the orders of the Commission.
    Plaintiff in error contends that the Commission is without jurisdiction, for the reason that Sections 614-44 to and including 614-47, General Code, are unconstitutional and void, in violation of Section If of Article II of the Constitution, and have been repealed by the adoption of that section and of Sections 4227-1 to and including 4227-13, General Code; that its order permitting an undertaking without surety is unreasonable and unlawful, and that its refusal to dismiss the petition is unlawful because Sections 614-44 et seq., General Code, referred to, are in violation of Sections 4 and 5, Article XVIII of the Constitution, and impair the obligation of a contract, in violation of Section 10, Article I of the Constitution of the United States.

      Mr. Charles A. Groom, city solicitor; Mr. Saul Zielonka, city solicitor; Mr. Wm. Jerome Kuertz and Mr. Charles E. Weber, assistant city solicitors, and Mr. Powel Crosley, for plaintiff in error.

      Mr. Joseph McGhee, attorney general; Mr. C. A. Radcliffe; Mr. Lazvrence Maxzvell; Mr. Miller Outcalt and Mr. Lazvrence K. Langdon, for defendant in error.
   Johnson, J.

It is familiar law, not questioned, that when a municipal corporation by ordinance gives its consent that a natural gas company may enter the municipality, lay down its pipes therein and furnish gas to consumers upon terms and conditions imposed by the. ordinance, which are accepted in writing by the company, such action by both parties constitutes a contract and the rights of the parties thereunder are to be determined by the contract itself. East Ohio Gas Co. v. City of Akron, 81 Ohio St., 33; State, ex rel., v. Cincinnati Gas Light & Coke Co., 18 Ohio St., 263, 7th Syl.; Circleville Light & Power Co. v. Buckeye Gas Co., 69 Ohio St., 259; City of Columbus v. Columbus Gas Co., 76 Ohio St., 309; Interurban Ry. & Term. Co. v. City of Cincinnati, 93 Ohio St., 108, and City of Cleveland v. Cleveland City Ry. Co., 194 U. S., 517.

The passage of the ordinance in December, 1905, granting the right, for the term of twenty-five years, to the company to furnish gas for heating, lighting and power purposes to public and private consumers, through its mains and appliances in the streets, with the right to occupy the streets and public places with such appliances, and the acceptance of that ordinance by the company, constituted a valid and binding contract between the parties. The power of the city to make the grant, and its validity, are amply shown by the above cited authorities. That contract will, by its terms, expire in 1930.

The rights of the parties “are to be determined by the contract itself.” As shown in the foregoing statement, Section 6 of the contract provides that “the grant herein made shall continue for twenty-five (25) years from and after the passage and acceptance of this ordinance, subject, however, to the right of the city to regulate the price of natural gas from time to time, as provided by law.” The parties themselves stipulated that the grant to the company was dependent on and subject to that right of the city. The law then in force provided that the city might regulate the price of gas from time to time. At the time of the making of the contract in 1905, Sections 2478 and 2479, Revised Statutes, which are now Sections 3982 and 3983, General Code, were in effect. The pertinent por-' tions of those sections are as follows:

Section 3982: “The council of a municipality in which * * * natural or artifical gas companies * * * are established * * * may regulate from time to time the price which such companies may charge for * * * gas for lighting or fuel purposes, * * * for public or private consumption, furnished by such companies * * *. Such cornpanies shall in no event charge more for * * * natural or artificial gas * * * than the price specified by ordinance of council.”

Section 3983: “If council fixes the price at which it shall require a company to furnish * * * either natural or artificial gas to the citizens, or public buildings, or for the purpose of lighting the streets, * * * or for other purposes, for a period not exceeding ten years, and the company or person so to furnish such * * * gas assents thereto, by written acceptance, * * * the council shall not require such company to furnish * * * gas * * * at a less price during the period of time agreed on, not exceeding such ten years.”

These statutory provisions by operation of law entered into and became part of the contract. (Insurance Co. v. Leslie, 47 Ohio St., 409; Milwaukee Mechanics’ Insurance Co. v. Russell, 65 Ohio St., 230, 255, and 19 Cyc., 659.) The obligation of a contract is measured by the standard of the laws in force at the time it was entered into, and its performance is to be regulated by the terms and rules which they prescribe. 6 Ruling Case Law, 325.

It will be observed that by the sections quoted, two entirely different situations are contemplated and provided for, viz.:

First: By Section 3982 the city is given power to regulate the price of gas from time to time.

Second: By Section 3983 it is provided that if the city fixes the price of gas for a period of ten years, and the company assents thereto, the city shall not require it to furnish gas at a less price during the period agreed on, not exceeding such ten years.

In this case the parties themselves provided that the grant of the franchises and privileges to the gas company was dependent on the right of the city to regulate the price of gas from time to time, as provided by law. That is, the city could, under Section 3982, at any time during the twenty-five years, the life of the franchise, fix the price generally without fixing any definite period for which the rate should be in force; or it could, under Section 3983, at any time during the twenty-five years, fix a rate for a definite period not exceeding ten years, and, if the company assented thereto, the city could not reduce the price during that ten-year period. That procedure was followed in the.present case. After the contract was made in 1905, the city fixed a rate for a ten-year' period. This was assented to by the company, and after the expiration of that period, the city, pursuant to the terms of the franchise contract, fixed a price for another ten-year period. Thereupon the gas company filed its complaint with the public utilities commission. The fixing of the first ten-year rate, and its acceptance by the company, did not annul or change the franchise contract by which the grant of privileges was made to the company, nor did it exhaust the power reserved to the city to fix rates. Such action was in conformity to that contract and carried out its express terms. To give exclusive attention to the action of the parties in fixing the rate for the first ten years of the franchise period of twenty-five years is to disregard the provisions of the agreement upon which the grant of privileges to the company is made to depend.

Section 3982, General Code, is the section which confers the regulatory powers on the city. The only place in the statute in which the words “regulate from time to time” are found is in Section 3982, General Code (2478 Revised Statutes). Section 3983, General' Code (2479 Revised Statutes), is not a regulatory statute. It simply limits the term for which the city can fix the rate with the assent of the company. As above shown, both sections entered into and became part of the franchise contract itself. And Sections 3982 and 3983 are entirely consistent with each other.

In State, ex rel., v. Ironton Gas Co., 37 Ohio St., 45, it was decided that a provision in an ordinance fixing the price of gas for a certain period, if accepted by the gas company, precludes the city from lowering the price for the period named, but “If not thus accepted, the power of the council to regulate the price is as ample as if the ordinance contained no such provision.”

Notwithstanding this, if the city at any time should fix a rate which is so unjust or unreasonable and beneath a proper compensatory return as to amount to a taking of the property of the company without just compensation, it would have recourse to the courts for the protection of its rights and property. Mo. Pac. Ry. Co. v. Tucker, 230 U. S., 340, 347; Newark Nat. Gas & Fuel Co. v. City of Newark, 92 Ohio St., 393, and Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234.

Suppose the company had not assented to the rate fixed by the city for the first ten-year period, in that event the power of the city would have been as ample as if no period had been fixed; and when the company did not assent to the rate fixed by the city for the second ten-year period, the power is equally ample. State v. Ironton Gas Co., supra.

In Freeport Water Co. v. Freeport City, 180 U. S., 587, the water company was given the exclusive right to supply the city with water for thirty years, subject to certain terms and conditions named in the ordinance, which also contained provisions for the payment of water rates by consumers. In discussing the power of the municipality to make regulations the court say at page 599:

“An example is afforded by the act of June 6, 1891. By that act the corporate authorities of any city which have authorized or shall authorize any individual, company or corporation to supply water, ‘be and are hereby empowered to prescribe'by ordinance maximum rates and charges for the supply of water furnished by such individual, company or ' corporation. . . . There is no explicit provision for repetitions of the power — none declaring the power conferred a continuing one. Who now doubts that it is ? If rights were claimed and were pleading for a different interpretation we might have to listen to them, but now undisturbed by them we yield without resistance to-that meaning which the subject-matter demands in the absence of negativing words.

“Our conclusion is that the powers conferred by the statutes of 1872 can, without straining, be construed as distributive. The city council was authorized to contract with any person or corporation to construct and maintain waterworks ‘at such rates as may be fixed by ordinance, and for a period not exceeding thirty years.’ The words ‘fixed by ordinance,’ may be construed to mean by ordinance once for all to endure during the whole period of thirty years; or by ordinance from time to time as . might be deemed necessary. Of the two constructions that must be adopted, which is most favorable to the public, not that one which would so tie the hands of the council that the rates could not be adjusted as justice to both parties might require at a particular time.”

Some years after the making of the contract, to-wit, in May, 1911, Sections 614-44 to and including 614-47, General Code, were enacted. These sections permit an appeal to the public utilities commission from ordinances of municipalities fixing rates for any commodity, utility or service.

It is contended that as this law was in effect in August, 1917, when the council passed the ordinance fixing the thirty-cent rate, the commission was authorized to entertain the complaint filed by the companies. The pertinent part of Section 614-44, General Code, is as follows: “Any municipal corporation in which any public utility is established, may, by ordinance, at any time zvithin one year before the expiration of any contract entered into under the provisions of sections 3644, 3982 and 3983 of the General Code between the municipality and such public utility with respect to the rate, * * * to be made * * * for any commodity * * * by such public utility, * * * proceed to fix the price * * * that such public utility may charge * * * for an ensuing period, as provided in sections 3644, 3982 and 3983 of the General Code.” Then follow the provisions for the filing of a complaint with the commission by dissatisfied parties.

The ordinance complained of in this case was not passed “at any time within one year before the expiration of any contract * * * between the municipality and such public utility with respect to the rate.”

We think it clear that a contract, made between a municipality and a public utility, in full compliance with express statutory provisions, before the passage of Section 614-44, General Code, is not affected by the provisions of that section, and that no steps can be taken under Section 614-44 et seq. until within one year of the expiration of the contract. A different construction would violate the express terms of the contract between the parties in 1905, in which the company agreed that the city should have the power to fix the rates. For by the provisions of Section 614-44 et seq. it is provided that the commission may fix the rates to be charged, on a hearing of the complaint permitted to be filed with it.

There is not only nothing in Section 614-44 et seq. to indicate that the legislature intended to interfere with or abrogate valid contracts already in existence, but there is the express language we have quoted which demonstrates that there was no such intention. The purpose was that the new law should be put into operation as to contracts about to expire and those thereafter made.

Section 614-44 not only confers-upon the public utility the right to invoke the jurisdiction of the public utilities commission, when not satisfied with the price fixed by the municipality, but it also enables electors of the municipality (even if the public utility accepts the rate) to invoke the same jurisdiction; and the commission on the hearing may lower the rate paid to the company.

The parties had the right to make the contract and to rely on the enforcement of it as they made it. Who can say that the city or the company would have entered into the contract if they had realized that a board or commission not then contemplated might without their consent be after-wards created, by which an essential element might be altered? ' As was said by Judge Spear in City of Wellston v. Morgan, 59 Ohio St., 147, 157: “The paper presented undertakes to stipulate for the furnishing of light and an agreed price therefor, for ninety-nine years. The proposition is that we now treat it as a contract for ten years; that is, that the court shall make a new contract for the parties for ten years, and then enforce it. How • can we say that the company would have incurred the great expense and outlay of money and labor, which the petition declares was incurred, for the period of ten years only ? And if the court were of opinion that probably the company would have been willing to so contract, where is there any authority in the court to now alter the terms that they did agree upon and then enforce them as changed ?” In that case the court say in the syllabus: “The only semblance of a contract between the City and the electric light company was in the form of an ordinance passed by the council, which undertook to grant to the company the exclusive use of the streets for the erection of its poles, et cetera, for the period of ninety-nine years, and to bind the City to purchase light of the company during that time at a stated sum per month.”

The contract of 1905, in the present case, having been entered into by the city in the exercise of contractual capacity and authority expressly conferred upon it, and having conferred upon the company valuable privileges and rights in the public streets and places of the city on the conditions named therein, is protected by the provisions of Section 10, Article I of the Federal Constitution, that no state shall pass any law impairing the obligation of contracts. A franchise is included within the broader term grant, and the same general principles are applicable to it in reference to the constitutional inhibition as to the impairment of the obligation of contracts. 6 Ruling Case Law, 340; 12 Corpus Juris, 1009, and Cleveland v. Cleveland City Rd. Co., 194 U. S., 534.

It is urged that the creation of the public utilities commission is expressly authorized by Section 2, Article XIII of the Constitution, as adopted in 1912.

This court, in the exercise of its revisory jurisdiction under Section 2, Article IV of the Constitution, has given full recognition to the power and jurisdiction of the public utilities commission, and to the efficient aid it has given as an administrative agency of the government, but it is neither advisable nor possible to confer upon it power in disregard of rights protected by the guaranties of the constitution.

In Gunn v. Barry, 15 Wall. (82 U. S.), 610, it was held that a state can no more impair an existing contract by a constitutional provision than by a legislative act. Both are within the prohibition of the national constitution.

Counsel also urge that the right to establish rates by compulsion is distinguished from the power to contract for a rate; that the power of a municipality to regulate is a police power, and rests upon legislative grant, which may be modified by the legislature at will.

We are mindful that the police power is an essential and vital attribute of government to be exercised in the interest of the public health, safety and welfare. Government cannot, even if it would, divest itself of this inherent incident of sovereignty. The duty of its watchful exercise is a continuing one. But here is a matter of contract. It expresses a meeting of minds on a subject which the parties were competent to contract about. The situation is one in which the city had been expressly given full power by the state to enter into an agreement touching all the matters covered by the terms of the contract, and, conceding that the grant of power to the city was subject to repeal or modification at the will of the legislature, no such modification had been made at the time the contract became binding on the parties.

As was said by the supreme court of the United States in Cleveland v. Cleveland City Railroad Company, supra, page 534:

“That in passing ordinances, based upon the grant of power referred to, the municipal council of Cleveland was exercising a portion of the authority of the State, as an agency of the State, cannot in reason be disputed. If, therefore, the ordinances passed after August, 1879, and referred to previously, which ordinances were accepted by the predecessors of the complainant, with whom it is in privity, constituted contracts in respect to the rates of fare to be thereafter charged upon the consolidated and extended lines (affected by the ordinances) as an entirety, it necessarily follows that the ordinance of October, 1898, impaired these contracts.

“The question for decision then is Did the consolidated ordinance of February, 1885, and the ordinances thereafter passed and accepted, already referred to, constitute binding contracts in respect to the rates of fare to be thereafter exacted upon the consolidated and extended lines of the complainant ?

“That in the courts of Ohio the acceptance of an ordinance of the character of those just referred to is deemed to create a binding contract is settled.”

It was held in the above case that a consolidated ordinance of February, 1885, of the city, and ordinances thereafter passed by the municipality and accepted by the companies, constituted such binding contracts in respect to the rate of fare to be exacted on the lines of the company as to deprive the city of its right to exercise the reservations in the original ordinances as to changing rates of fare, and that the ordinance of October, 1898, reducing fare to be charged was void and unconstitutional within the impairment clause of the federal constitution. In the cases of Cincinnati v. Pub. Util. Comm., 96 Ohio St., 554, and 96 Ohio St., 270, the questions determined in this case were not presented to the court.

Counsel for defendant in error cite State, ex rel. Webster, v. Superior Court, 67 Wash., 37, in which case it was held that a city which granted a franchise to a telephone company, fixing rates, could not attack the constitutionality of a public utilities act passed thereafter, under which the rates were raised, on the ground that the contract in the franchise was impaired thereby. In that case, the case of Cleveland v. Cleveland City Rd. Co., supra, was relied on by counsel for the city. But the supreme court of Washington point out that in the Cleveland Railroad case express authority had been conferred on the city by the Ohio statute, while, in the

Washington case, the power to fix rates was a right reserved to the legislature of the state by the constitution of that state and so was not incident to a freehold charter. See also Woodburn v. Public Service Commission, 82 Ore., 114, which is likewise cited by the defendant in error, where it was also held that the right was reserved to the state.

As we have seen, the state and federal courts have held that in Ohio “express and unmistakable authority” was conferred on the city to make a contract, such as is involved here, and during the life of the contract the parties operating under it are bound by its terms.

These views as to the contractual relations of the parties, whose interests are concerned in the proceeding, are conclusive of the case, and it is not necessary to decide the other questions suggested.

The order of the commission will be reversed.

Order reversed.

Nichols, C. J., Wanamaicer and Newman, JJ., concur.

Jones, J.,

dissenting.

I find it impossible to concur in the judgment. The municipality seeks to avoid the jurisdiction of the public utilities commission of the state because the original franchise ordinance contained a stipulation subjecting the utility “to the right of the city to regulate the price of natural gas from time to time, as provided by law.”

This ordinance was passed December 26, 1905, The legislative grant to the municipality limited the contractual period to ten years. After the ten-year period the city by ordinance attempted to impose a compulsory rate of service upon the grantee, ignoring the ad interim legislation, which had in the meantime placed the control of rate regulation in the hands of the public utilities commission.

1. The original ordinance of 1905, to which the grantee gave its statutory assent, reserved to the city the right to regulate the price of natural gas from time to time, as provided by law. This could only mean as provided by law in force at the time the regulation was to be made; otherwise this provision would be meaningless. Before the new reducing rate ordinance of August 20, 1917, was passed, the legislature had-in the meantime provided by law the method by which the price of natural gas should be established. When the city attempted to enforce its unilateral and compulsory rate provision in its new ordinance it violated its original contract made with the utility.

2. If it is assumed that this contract was for a longer period than ten years, the answer to that contention is that the municipality had no legislative authority to make it.

Sections 3982 and 3983, General Code, which were in force at the time the original ordinance was adopted, granted the only power the municipality had touching rate regulation. The first section delegates the power to city councils to regulate, and the second section provides for the contractual relation between the city and company, which shall not extend beyond a period of ten years. Under these sections neither the city nor the utility had any authority to contract as to the price of gas for a longer period.

In construing a similar section relating to price regulation this court held in the case of City of Wellston v. Morgan, 59 Ohio St., 147, as follows: “Where a statute gives power to a municipal corporation to contract for the lighting of its streets and other public grounds for a period not exceeding ten years, the conclusive implication is that such corporation is forbidden to contract for a longer period.”

In construing the grant of legislative power in the two code sections noted, in the case of Logan Nat. Gas & Fuel Co. v. City of Chillicothe, 65 Ohio St., 186, the following proposition is stated in the syllabus: “A city council has no power under Revised Statutes, Sections 2478 and 2479 [now Sections 3982 and 3983, General Code], to compel a gas company, without its assent to the ordinance, to furnish gas in a manner and at a rate entirely at the option of the consumer.” And on page 206 the court say: “It is also provided that if the gas company assent to such limitation in writing it then becomes a binding obligation on both the city and the company for ten years and no more. This is the extent of the authority granted to the council, and no other or different power is either expressed or implied. ' When, therefore, the council undertakes, even in the absence of a prior ordinance, to compel the gas company without its consent to furnish gas in a manner and at a rate entirely at the option of the consumer, it not only transcends the power conferred by the legislature, but it also undertakes to seize private property without due process of law.”

It must be remembered that the only power given to municipalities by Section 3983, General Code, was regulation by contract; and not a compulsory regulation. In this connection the statement of the Oregon supreme court in the case of Woodburn v. Public Service Commission, 82 Ore., 114, 127, L. R. A. (C. 1917), 98, 105, is peculiarly apt: “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 the 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.”

3. Since municipalities are political subdivisions of the state and mere agents of the latter, it is within the province of the state to change its rate regulation at will before the municipality has entered into a legal and effective contract with a public utility. Before the ten-year, period of limitation had expired, and before the city had assumed to renew its status with the utility, and prior to municipal action fixing the new rate, the legislature had created a public utilities commission and vested it with sole control over coercive rate regulation. That the legislature had ample power to do this is supported by overwhelming authority, especially in view of the provisions of Section 2, Article XIII of the Constitution, which reserved to the legislature the right to alter or repeal laws conferring corporate franchises. People, ex rel., v. Public Service Commission, 153 App. Div., 131; Richmond Co. Gas-Light Co. v. Middletown, 59 N. Y., 228; Stanislaus County v. San Joaquin C. & I. Co., 192 U. S., 201, and Home Tel. Co. v. Los Angeles, 211 U. S., 265.

4. The new rate ordinance was passed by the council of the city of Cincinnati on August 20, 1917. The city is now assuming an attitude wholly inconsistent with its former action. Prior to the passage of the new ordinance the city had expressly recognized the jurisdiction of the public utilities commission of the state to control the rate regulation of this public utility.

In the case of the City of Cincinnati v. Public Utilities Commission, 96 Ohio St., 554, the city itself invoked the jurisdiction of the commission by adopting a resolution on February 10, 1914, requesting the commission to investigate and ascertain the value of this public utility for rate-making purposes. This proceeding was brought under Section 499-8 et seq., General Code, which authorized the commission to fix the valuation “for the purpose of ascertaining the reasonableness and justice of rates and charges for the service rendered by public utilities,” etc. In that case, at the instance of the city, this court rendered a judgment in its favor, modifying the order of the commission in the matter of valuation upon which rates are necessarily based.

Likewise, in the case of City of Cincinnati v. Public Utilities Commission, 96 Ohio St., 270, the city also recognized the authority of the commission to deal with rates of this utility during the non-contractual period, for, after the expiration of the ten-year gas-rate contract in controversy, the city applied to the commission asking it to fix an emergency rate for this utility. It may not be amiss to say that in the opinion in the above case it is suggested that the ordinance of December 26, 1905, was not a twenty-five-year but a ten-year contract, expiring October 26, 1916, by virtue of Section 3983, General Code, and that such rate contract becomes operative “upon its acceptance by the public utility.”