author: Donahue, J. Wanamaker, J.,

text:
    The Cleveland Telephone Co. v. The City of Cleveland.

      Police power — State and municipal — Regulation of telephone rates — Jurisdiction•—Public utilities commission or home-rule city — Constitutional lorn.

    1. The regulation, of rates for services rendered or commodity furnished by a public utility is an exercise of police power.

      2, Section 3 of Article XVIII of the Constitution of Ohio, as amended September 3, 1912, confers upon the municipalities of this state, authority to adopt and enforce within their limits such local police regulations as are not in conflict with general laws.
    3. An ordinance fixing the rate that may be charged for telephone services by a telephone company within the limits of a municipality, is a local police regulation, within the meaning of that term as used in Section 3 of Article XVIII of the Constitution of Ohio.
    4, The statutes of this state creating the public utilities commission of Ohio, and conferring authority upon it to regulate public utilities and to fix the rate that such utilities may charge for commodity 'furnished or service rendered to municipalities and citizens of this state, are a valid and constitutional exercise of the police power toy the general assembfy of Ohio.
    (No. 15988
    Decided June 21, 1918.)
    Error to the Court of Appeals of Cuyahoga county.
    On November 30; 1917, The Cleveland Telephone Company, operating partly within and partly without the city of Cleveland, Ohio, filed with the public utilities commission of Ohio two schedules of rates to be effective January 1, 1918.
    On December 17, 1917, the council of the city of Cleveland, passed an ordinance “fixing the maximum rate which may be charged for telephone service within the city of Cleveland.”
    The city of Cleveland brought an action in the common pleas court of Cuyahoga county, averring that the rates fixed by ordinance are reasonable, will yield a fair return to the company, and are the only lawful rates which may be charged, and asked the court to enjoin the telephone company from putting into effect any other or different rates than those named in the ordinance.
    To the amended petition the telephone company filed a general demurrer, which was overruled, and the company then filed an answer. It was stipulated, however, that the reasonableness or unreasonableness of the rates fixed by the city council would not be gone into at that time, but that the only question that would be submitted would be the authority of the city of Cleveland, under its home-rule charter, to prescribe rates for telephone service within the limits of that city.
    Final judgment was entered in favor of the city, granting a permanent injunction restraining the telephone company from putting into effect the increased rates or any rates other than those in effect on December 31, 1917.
    The cause was appealed to the court of appeals of the eighth district. The telephone company filed an amendment to its answer, to which the city demurred. The court of appeals overruled the company’s demurrer to the city’s amended petition, sustained the city’s demurrer to the company’s amended answer, and entered a like judgment to that entered in the common pleas court.

      The telephone company filed a petition in error in this court to reverse the judgment of the court of appeals of Cuyahoga county.

      Messrs. Tolies, Hogsett, Ginn & Morley, for plaintiff in error.

      Mr. Joseph McGhee, attorney general, and Mr. C. A, Radcliffe, for the Public Utilities Commission.

      Mr. W. S. FitzGerald, director of law, and Mr. John D. Marshall, assistant director of law, for defendant in error.
   Donahue, J.

The disposition of this case involves a construction of Section 3 of Article XVIII of the Constitution of Ohio, as amended September 3, 1912, which section confers upon municipalities authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.

It is not only conceded, but insisted by counsel for the city of Cleveland, that the authority to fix rates that may be. charged for service rendered or commodity furnished by a public utility, is an exercise of police power.

This is necessarily true. If it were not, then neither the city nor the state would have authority to fix such rates. On the contrary, the amount to be charged would be the subject of private contract.

It is contended, however, that police power, in the narrow sense of the term, means power to prescribe regulations for health, safety, and morals, and that the term “police regulations,” as used in Section 3 of Article XVIII of the Constitution, relates only to this narrow definition of police power; that the authority conferred by the constitution upon municipalities, to exercise all powers of local self-government, necessarily includes as incident 'thereto police power in the broader sense of that term, which authorizes the fixing of rates that may be charged by public utilities.

If it were conceded that police power may be restricted to this narrow meaning in one instance and given a broader meaning in another, it must follow that police power in the larger sense of the term would include the narrower or restricted meaning. In other words, the whole necessarily includes all its parts. This construction would make the further provisions of Section 3 of Article XVIII meaningless.

However that may be, there is no apparent reason whatever why the constitution should delegate to municipalities full authority to exercise police power in the broader sense of the term and then limit and restrict them in the exercise of local police power.

The exercise of local police power is of vital importance to large centers of population. If police powers may be divided along the lines suggested, it is of far more importance to municipalities that they should have authority to exercise local police power untrammelled by the general laws of the state, than that they should have absolute right to exercise the police powers included in the broader definition suggested by counsel for the city of Cleveland, yet Section 3, Article XVIII of the Constitution, does limit and restrict municipalities to the exercise of local police power in conformity with the general laws of the state.

Police power, however, cannot be divided along these lines or any other lines. There is no such, thing as municipal police power as distinguished from state police power. Such a proposition is too absurd to require argument to the contrary. Counsel make no such claim. Every court in Christendom since the establishment of civilized jurisprudence, without a single dissenting voice, has held that police power is a power that inheres only in the sovereign. Municipalities are not independent sovereignties, and therefore can exercise only such police power as the sovereign people of this state have in the constitution of Ohio delegated to them, and these powers must be exercised in the manner and form the constitution provides. If they were independent sovereignties, there might be some force in the contention that they possess inherent police powers incident to sovereignty, especially if the constitution imposed no limitations upon the exercise of that power, but even the most ardent supporters of independent sovereignty in the constitutional convention were obliged to abandon that idea. (2 Constitutional Debates, page 1456, column 2.) That question, however, is fully settled in the case of Billings v. Cleveland Ry. Co., 92 Ohio St., 478, 485, in this language:

“There is no imperium in imperio, except in the sense that by the approval of the state the city exercises part of the sovereign power under the limitations imposed.”

While in this state, to meet the needs of urban districts, local police powers have uniformly been delegated to local authorities to be exercised in conformity with general laws, nevertheless, police power is an attribute of sovereignty, and the exercise of that power largely within the discretion of the sovereign state. •

This discretion, however, is fraught with danger to the personal and property rights of private individuals, and courts have uniformly interfered to restrain the arbitrary and unreasonable exercise of that power to the prejudice of private rights guaranteed by the constitution of the state. Mirick v. Gims, Treas., 79 Ohio St., 174, and Interurban Ry. & Terminal Co. v. Public Utilities Commission, ante, 287.

It is hardly within the range of possibility, much less probability, that the people of this state intended to vest in the many municipalities of Ohio discretion to exercise unlimited and unrestricted police power. The fact that the constitution does not confer such power in express words, is in and of itself sufficient to show that it was not the intent or purpose to do so. Especially is this true, in view of the fundamental doctrine announced in paragraph 3 of the syllabus in the case of State, ex rel. City of Toledo, v. Cooper, Auditor, 97 Ohio St., 86; but if this were not sufficient, the fact that the constitution itself expressly limits municipalities in the exercise of police power, certainly ought to end all controversy on that subject.

In the case of State, ex rel. City of Toledo, v. Cooper, Auditor, supra, this court held that under the express provisions of Section 6, Article XIII, and Section 13, Article XVIII, of the Constitution of Ohio, the power of municipalities to levy taxes may be limited or restricted by general laws.

Paragraph 3 of the syllabus in that case reads as follows:

“Taxation is a sovereign function. The rules of liberal construction will not apply in cases where it is claimed a part of the state sovereignty is yielded to a community therein. It must appear-that the people of the state have parted therewith by the adoption of a constitutional provision that is clear and unambiguous.”

The exercise of police power is also a sovereign function, and therefore the .same rule of construction must apply.

It was strenuously urged by counsel for the city of Toledo that the right to levy taxes is vital to government and that the grant to municipalities, in Section 3 of Article XVIII, of authority “to exercise all powers of local self-government,” necessarily includes authority to levy taxes without interference upon the part of the state; notwithstanding Section 13 of Article XVIII specifically authorizes the general assembly of Ohio to limit by law the power of municipalities to levy taxes and incur debts for local purposes, and to require reports from municipalities as to their financial condition and transactions, and provides for the examination of the vouchers, books and accounts of all municipal authorities, or of public undertakings conducted by such authorities. In this case exactly the same contention is made with reference to the right of municipalities to exercise police power independent of state control. The limitation in the constitution of the exercise of this power, however, is just as plain'and positive as the limitation upon its power to levy taxes. ■

The case of Interurban Ry. & Term. Co. v. Public Utilities Commission, supra, also involved the question of the jurisdiction of the utilities commission over public utilities within municipalities. In that case the court held that the state cannot be deprived of its right to the proper exercise of 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; but that 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, and as long as the company retains the franchise and operates its road thereunder its terms must control.

In the opinion in that case it is said:

-“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 police power. Its elastic and undefined nature is everywhere recognized, as well as the limitation upon its exercise as against rights guaranteed and protected by the constitution.”

In view of these authorities, and particularly in view of the provisions of the bill of rights as written into Article I of the Constitution of Ohio, no mere presumption that the people of Ohio intended to divest the sovereign state of its control of the exercise of police power by the municipalities of this state can obtain. Certainly not where the constitution in terms provides that municipalities must exercise local police power in conformity with the general laws.

To hold that Section 3 of Article XVIII of the Constitution confers upon municipalities authority to exercise police power by local police regulations in conflict with the general laws of this state, notwithstanding the express provision of this section to the contrary, would be not only in disregard of every rule of construction heretofore established or recognized by this court, but the court, under the pretense of construction, would in fact be writing a new and different constitution of Ohio. This court has no desire or intention to assume such responsibility or usurp such power.

If there were any doubt, however, as to the correct interpretation of Section 3 of Article XVIII, that doubt is wholly removed by Section 4 of the same article, which expressly authorizes municipalities to contract with public utilities for the product or service which is or is to be supplied to the municipality or its inhabitants. If Section 3 grants to municipalities authority to exercise police power in conflict with the general laws of this state, and in the exercise of that power municipalities can fix an arbitrary rate that public utilities may charge for product or service supplied to the municipality or its inhabitants, then of course there would be no necessity for contract; and there never would be any such contract, for the municipality would arbitrarily fix the price, and the utility would be compelled to accept the same. Therefore, this constitutional grant of power to municipalities to contract with utilities precludes the idea that the municipality has the power to fix such arbitrary price, regardless of the consent of the utility.

Certainly it was not the intention of the members of the constitutional convention, or of the electors of this state, to perpetrate such a monumental folly as to “authorize municipalities in one section of the constitution to fix arbitrarily a price that utilities might charge for a product or service and in another section authorize municipalities to contract with utilities, for in such case the entering into a contract would be a wholly useless performance on the part of a municipality.

It is clear from the constitutional debates that the members of the constitutional convention that framed the home-rule provision did not so understand it. The chairman of the committee that-drafted and presented to the convention these amendments to the constitution, speaking in reference to these amendments (2 Constitutional Debates, page 1456), said:

“If you will read this proposal carefully you will see that the state is dominant. The great powers of taxation, the great police power, and the great powers of education and of health, all are held with a firm hand by the state. You may liken the power of the state to a bank note, through which the silken threads run strong and firm giving pliability but not permitting disintegration. That is the fundamental underlying principle of the proposal which you have to consider. The state is dominant in those principles in which, in the judgment of the committee, it should be dominant. Municipalities are given the greatest possible freedom, all of course protected and hedged in by these general fundamental principles.” In view of this plain, unchallenged statement <of the chairman of the committee, it is difficult to understand how it- can now be claimed that the constitutional convention intended to confer unrestricted" police power upon the municipalities of this state, or that the electors of Ohio so understood this amendment whep it was adopted as a part of the state constitution.

However, we must determine the intent of the electors of the state from the language used in the amendment itself. It was the right and privilege of each elector to read and determine for himself, from the language used therein, the meaning of the proposed amendment.

It is not the province of a court to write constitutions or to give to the language used such forced construction as would warp the meaning to coincide with the court’s notion of what should have been written therein. On the contrary, the language used must be given its usual and ordinary meaning.

In the case of Slingluff v. Weaver, 66 Ohio St., 621, it was held by" this court, in the second paragraph of the syllabus, that:

“The intent of the law-makers is to be sought first of all in the language employed, and if the words be free .rom ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction.”

This applies with equal force to the construction of a constitutional provision. If the result reached by the observance of this first and most important canon of construction falls short of the purpose and intent of the electors, the remedy is by amendment.

The language of Section 3 of Article XVIII, which confers upon municipalities of the state authority “to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with the general laws,” is plain, clear and unequivocal. The words “local police * * * regulations” require no construc-

tion. It would be idle to attempt to explain the meaning of this language in other words, for there are no other words that can better express their meaning.

It is said, however, that the phrase “local police regulations” does not mean “local police power.” It must be conceded, however, that “local police regulations” are the only means or methods for the exercise of “local police power;” so that the same result is reached regardless of any attempt to distinguish between the meaning of these two terms.

If the exercise of power is restricted, it amounts to a limitation of the power itself. If, however, it were possible to distinguish between the terms “local police power” and “local police regulations,” the ordinance of the city of Cleveland, upon which this action for injunction is based, is beyond all question a local police regulation. It comes not only within the spirit, but the letter of the constitution.

Section 3 of Article XVIII must necessarily be construed with the other provisions of the constitution. Section 2 of Article XIII expressly grants to the general assembly of Ohio authority to pass general laws under which corporations may be formed, to classify such corporations and to confer upon proper boards, commissions or officers, such supervisory and regulatory powers over their organization, business and issue and sale 'of stocks and securities, and over the business and sale of the stocks and securities of foreign corporations and joint stock companies in this state, as may be prescribed by law.

This section of the constitution was adopted at the same time that Article XVIII was adopted. There is therefore no theory upon which it can be claimed that Article XVIII repeals by implication any provisions of Section 2 of Article XIII. On the contrary, the presumption obtains that both of these provisions should be given full force and effect; yet if Section 3 of Article XVIII is to be given the construction contended for by counsel for defendant in error, it would practically destroy the provisions of Section 2 of Article XIII, Clearly no such result was intended either by the constitutional convention or the electors of the state.

For several years following the adoption of this amendment to the constitution, municipalities, the public utilities commission of Ohio, the public utilities of Ohio, and all others vitally interested, concurred in interpreting this provision to mean that the exercise of police power by municipalities must be subject to the general laws of the state. Municipalities, public utilities and private citizens invoked the jurisdiction of the public utilities commission, not only to fix rates but to ascertain the value of the property of public utilities used and useful for the service and convenience of the public. In fact, the city of Cleveland, the defendant in error in this case, by resolution of its council, adopted February 2, 1914, long after it had adopted a charter, requested the public utilities commission of Ohio to appraise the value of the property of The Cleveland Electric Illuminating Company, under authority, conferred upon that commission by Section 499-8, General Code, and the utilities commission proceeded to make such valuation. While that proceeding was pending, the council of the city of Cleveland fixed a rate to be charged by The Cleveland Electric Illuminating Company for power and light furnished by it to the citizens of Cleveland, and that company appealed to the utilities commission. Both the questions of valuation and rate were pending before the commission at the same time, without objection on the part of the city. The commission fixed the valuation, but did not fix the rate. To this order of the commission fixing the valúation, the -city of Cleveland prosecuted error in this court. City of Cleveland v. Public Utilities Commission, post, 462.

The city of Cleveland not only conceded the jurisdiction of the utilities commission, but complained of its failure to hear and determine the question of rates at the same time it fixed the valuation.

In the case of The Lima Telephone & Telegraph Co. v. Public Utilities Commission, ante, 110, the city of Lima invoked the jurisdiction of the public utilities commission, challenging the rates, charges and classification in the schedule filed by The Lima Telephone & Telegraph Co. The utilities commission made an appraisement of the value of the company’s property and fixed rates that might be charged by that company. In that -case neither the city nor the utility questioned the jurisdiction of the commission. This court, all members concurring in the judgment, approved the order of the commission, both as to value and rates.

In the case of The Kent Water & Light Co. v. Public Utilities Commission, 97 Ohio St., 321, the utilities commission upon the request of the village of Kent appraised the property of the water and light company. After this valuation was settled, the water and light company appealed to the utilities commission from an ordinance of the village of Kent fixing the rates that the company might charge consumers. The commission fixed a different rate. The company prosecuted error in this court to this rate order. The village interposed, insisting that the order made by the commission was reasonable and lawful. The cause was remanded to the utilities commission for a review of the appraisement.

In the case of the City of Cincinnati v. Public Utilities Commission, 96 Ohio St., 544, the council of the city of Cincinnati by resolution requested the public utilities commission to ascertain the value of the property of The Cincinnati Gas & Electric Company and The Union Gas & Electric Company, used and useful for the service and convenience of the public. The city prosecuted error in this court to the order of the commission fixing this valuation, but it did not question the jurisdiction of the utilities commission. This court, all members concurring, modified the order and affirmed the same as modified.

In the case of the City of Cincinnati v. Public Utilities Commission, Id., 270, it appeared from the record that on the 13th day of October, 1916, the council passed an ordinance fixing the rate to be charged for natural gas for five years; that the gas company accepted the ordinance, and agreed to abide and be bound thereby; that a referendum petition was filed October 30, 1916, which suspended the operation of the ordinance, so that no rate for natural gas was then in effect in that city; that the gas company filed a schedule with the public utilities commission; that the city of Cincinnati, through its solicitor, filed an application to strike this schedule from the files, and asked the public utilities commission to fix and put in force an emergency rate to be charged for natural gas in the city of Cincinnati, pending the referendum vote on the ordinance, and that the utilities commission. refused to fix such emergency rate. The city thereupon prosecuted error to this court, and this court held that there was no such emergency contemplated by the provisions of Section 614-32, General Code, that would authorize action by the public utilities commission, and affirmed its order.

The question of the jurisdiction of the public utilities commission over public utilities operating within municipalities of this state was fully considered and determined in the case of City of Cincinnati v. Public Utilities Commission, 91 Ohio St., 331. That case did not involve the question of the authority of the utilities commission to fix rates, but it did involve the question of the authority of a municipality to exercise police power in the regulation of a local public utility, independent of the general laws of the state, and it did involve the jurisdiction of the public utilities commission of Ohio to regulate public utilities within the municipalities of the state. The city of Cincinnati passed an ordinance directing The Cincinnati Street Railway Company and The Cincinnati Traction Company to construct a double-track extension over a certain route within seventy days after the passage of the ordinance. The companies filed their complaint with the utilities commission, under the provisions of Sections 614-44 and 614-46, General Code, averring among other things that the requirements of the ordinance were unjust and unreasonable. The city of Cincinnati denied these averments. The utilities commission found that the additions and extensions required by the ordinance were not practical, and entered an order relieving the street railway and the traction company from the obligations imposed thereby. The city of Cincinnati filed a petition in this court to review the order of the utilities commission. This court, all members concurring, held that the public utilities commission of Ohio is authorized to determine whether the requirements of such an ordinance are just and reasonable, and that the commission has authority to determine the practicability of additions and extensions of street railway lines required by city ordinance. Charter cities were not exempted from the operation of this decree.

The principle involved in that case is identical with the principle involved in this. True, Cincinnati had not then adopted a charter, but a charter is merely a vehicle for the exercise of municipal power and cannot confer authority upon a municipality in excess of the power conferred by the constitution itself. It is expressly provided in Section 7, of Article XVIII, that the exercise of powers of local self-government, under a charter adopted in pursuance of that section, shall be subject to the provisions of Section 3. However, the case of Stange v. Cleveland, 94 Ohio St., 377, cannot be distinguished from the case at bar upon any theory of charter or no charter, nor upon any theory of different charter provision. It is the same city, the same charter and the same question as to the authority of the city to exercise police power, and involves a construction of Section 3, Article XVIII of the Constitution of Ohio.

The city of Cleveland, on the 13th day of October, 1914, passed an ordinance which provided that, except in case of extraordinary emei-gency, not to exceed eight hours should constitute a day’s work. Stange was arrested for violation of this ordinance, and demurred to the affidavit, the contention being that the ordinance conflicted with the general laws of the state and was therefore not authorized by Section 3 of Article XVIII of the Constitution of Ohio.

On the 28th day of April, 1913, the general assembly passed an act providing that eight hours should constitute a day’s work, but it was provided that “this act shall be in force and applicable to all contracts let on or after July 1, 1915.”

The contract upon which Stange was working, was let April 30, 1914. This court, all members concurring, held that the effect of the provision in the eight-hour law, by which its operation was delayed until July 1, 1915, was the same as if the state had enacted no law on the subject, and that the city was free to make such local police regulations as it saw fit. But the court said, at page 381: “If, after the statute became effective, the ordinance should conflict in anywise with it, the ordinance of course must yiel<J.” The court further said, at page 379: “The ordinance is a local police regulation applying only to the municipality in which it was passed, but if this local regulation conflicts with the general law it is invalid.” This construction of Section 3, Article XVIII, concurred in by every member of this court, fully and finally disposes of this case.

Counsel for the city of Cleveland did not contend in that case that the city should exercise police power in conflict with the general laws of the state, but on the contrary contended in their printed brief . that “the framers of the constitution intended to delegate the primary control of police regulation to the general assembly. It was their manifest intention in the drafting of Section 3, to prescribe the limits of the police regulations municipalities could make and enforce. There must be no conflict with the state law.”

To the same effect is the holding of this court, all members concurring, in the case of City of Fremont v. Keating, 96 Ohio St., 468, that Section 3 of Article XVIII of the Constitution of Ohio authorizes municipalities to adopt and enforce within their limits police power not in conflict with the general law, and that Section 6307, General Code, which provides that local authorities shall not regulate the speed of motor vehicles by ordinance, by-law or resolution, is in direct conflict with this provision of the constitution, and void. The judgment in that case was approved in the cases of Greenburg v. Cleveland and Stein v. Cleveland, ante, 282.

Counsel for the city of Cleveland, in support of •the city’s position, cite the case of Billings v. Cleveland Ry. Co., supra. In that case it was held by this court that the city of Cleveland under its charter had. the authority to grant to street railways the permission to construct their railways on streets in the city, without the consent of a majority of the abutting property owners, as required by Sections 3777 and 9105, General Code. That case, however, did not involve any question of the exercise of police power. It was specifically stated in the opinion that the granting of a right to street railway companies is purely a governmental function; that in municipalities the fee of the streets is in the city or village in trust for street purposes; that the abutting lot. owners have no property rights in the street except the right of ingress and egress to their premises; that the use of streets for street railway purposes is not an additional burden on the rights of abutting property owners.

Police power is the power to impose restrictions upon the personal or property rights of private persons. If, therefore, abutting lot owners have neither a personal nor a property right in the streets, the grant to a street railway company of the right to lay its tracks in the streets, does not involve the exercise of police power, but is solely and only a governmental function. This is especially emphasized in the opinion, page 491, in this language:

“In considering the statute which requires the filing of consents of property owners prior to the granting of permission to erect a railroad in the street, it must be noted that there is no property right involved.”

And by the second paragraph of the syllabus care is taken to protect a property owner where the “public utility is of such a character that its construction and operation is an additional burden on his rights.” Both in the opinion and the syllabus in the case of Billings v. Railway Co., supra, the distinction between the question involved in that case and one involving the exercise of police power, is so clearly explained that no unprejudiced mind can read this opinion intelligently without understanding this difference.

Many other cases of the same character might be cited, but the foregoing are sufficient to show the uniform construction given to this provision of the constitution, not only by this court but also by those most vitally interested in its provisions.

Notwithstanding that for several years following the adoption of this amendment to the constitution this construction of Section 3 of Article XVIII universally obtained, it is now insisted that it absolutely deprives the home-rule amendment of all value, and that municipalities have no further authority of local self-government than they had under the conditions that obtained prior to the adoption of this amendment.

If this be true, it is strange that this thought did not occur to some of the officers of the municipalities of this state, when they were invoking the jurisdiction of the utilities commission and insisting upon the right to exercise police power concurrently with the state and in conformity with the general laws of the state. We cannot, however, concur in the proposition that the result will be disastrous to home rule.

Article XVIII of the Constitution of Ohio as amended September 3, 1912, does confer upon municipalities the right to exercise all powers of local self-government. Subject only to the limitations that local police, sanitary, and other similar regulations shall not conflict with general laws, as found in Section 3, and the further limitations of the power to levy taxes and incur debts for local purposes, and the authority of the state to require reports from municipalities as to financial conditions and transactions, and examine vouchers, books apd accounts, as provided in Section 13, a municipality has full authority under the home-rule amendment to meet every problem of municipal government. ,

These limitations have been written into the constitution by the people of Ohio. Whether wise, or unwise, it is not within the province of a court to eliminate them upon the theory that municipalities should have full authority to exercise police power, levy taxes or incur debts at will. It may be possible to urge many good reasons why the home-rule amendment should not have contained these limitations upon the governmental powers granted to municipalities. The answer, however, is that it does contain these limitations, and that courts must give them full force and effect. In other words, municipalities cannot take advantage of the benefits conferred by Article XVIII of the Constitution, and reject the limitations imposed thereby.

This article of the constitution grants to municipalities as full and complete authority to exercise all powers as it is possible to grant to them without erecting each municipality into an independent sovereignty, wholly separate and apart from the state. The people of this state refused to do this; certainly a court ought not to do so by a construction wholly at variance with and in defiance of the plain, positive and unambiguous language used in the constitution 'itself.

Not only does Article XVIII confer upon municipalities full authority to exercise all powers of local self-government, subject only to the limitations above mentioned, but it confers this authority direct. It meets and remedies every evil that obtained in legislative control of municipalities prior to the adoption of this amendment. The general assembly of Ohio can no longer play battledore and shuttlecock with the municipalities of this state. It can control them in the exercise of police power, in the levy of taxes and in the incurring of debts. Further than that, the governmental powers of municipalities are fixed, positive and certain, and can be changed only by amendment of the constitution itself.

Counsel for the city of Cleveland predicate the right of that municipality to fix telephone rates squarely upon the provisions of the charter of that city. It is conceded, of course, that this charter cannot confer a power upon a municipality in addition to the power conferred by the constitution itself. Section 4 of Article XVIII authorizes a municipality to acquire, own, lease and operate a public utility within or without its corporate limits, the product or service of which is or is to be supplied to the municipality or its inhabitants. The first section of the charter of the city of Cleveland authorizes the city to acquire, construct, own, lease, operate and regulate public utilities. Section 4, Article XVIII of the Constitution, does not authorize a municipality to regulate public utilities, and therefore Section 1 of the charter is in excess of the authority conferred upon municipalities by that section of the constitution. If this authority found in Section 1 of the charter of Cleveland, authorizing the city to regulate public utilities, is a valid constitutional provision, the authority for such charter provision must be found in Section 3 of Article XVIII. This is conceded by counsel for the city of Cleveland, but it is the claim of counsel that this section must be interpreted in connection with the other provisions of Article XVIII. This of course is the correct rule of construction, but there are no other provisions in Article XVIII that either add to or take from the grant of municipal powers in Section 3 thereof. That section is plain and positive in its terms.

The jurisdiction of the public utilities commission of Ohio, to fix rates of a public utility operating within a municipality of this state, was challenged for the first time in the case of The Marysville Water & Light Co. v. Public Utilities Commission, 93 Ohio St., 480. In that case the council of the village of Marysville passed an ordinance fixing the rates to be charged for light and power during the next five years. The light and water company filed a written acceptance of this ordinance. Later, thirty-five of the electors of Marysville, being more than three per cent, of the qualified electors of that village, filed a complaint with the public utilities commission, designated as a petition and appeal, asking the utilities commission to fix a proper rate, price, charge, toll or rental to be taken, exacted or collected by the company for light and power furnished to the consumers. The Marysville Water & Light Company brought an action in this court to restrain the utilities commission from acting upon this complaint, upon the theory that Section 614-44, General Code, is in conflict with Section l/'of Article II of the Constitution, which provides that the initiative and referendum powers are reserved to the people of each municipality in all questions which such municipalities may now or hereafter be authorized by law to control by legislative action. A demurrer to this petition was sustained upon the theory that this court has no original jurisdiction in an action in which an injunction is the sole relief sought.

In the case of Cincinnati v. Public Utilities Commission, ante, 320, the city of Cincinnati passed an ordinance fixing the price to be charged for natural gas at thirty cents per thousand cubic feet. The gas and electric company filed with the public utilities commission of Ohio a complaint against the rate fixed in this ordinance. The city filed its application and motion to dismiss this complaint, for the same reasons stated in the petition in the case of The Marysville Water & Light Company v. Public Utilities Commission, supra. After the case now under consideration was filed in this court, a reply brief was filed on behalf of the city of Cincinnati, raising the same questions that are presented in this case. This court, however, did not agree with the contention of counsel for the city of Cincinnati, that the utilities commission has no jurisdiction to fix rates that may be charged by a public utility operating within the limits of a city having adopted a charter. On the contrary it held that the original franchise ordinance constituted a contract between the utility and the city of Cincinnati, and that “Statutes in force at the time a contract is made by a municipality enter into and become a part of the contract. Its obligation is to be measured, and performance is to be regulated, by the terms of the rules which they prescribe.”

Paragraph 7 of the syllabus of that case reads as follows:

“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.”

This language clearly contemplates that in the absence of such contract the provisions of Section 614-44, General Code, would apply.

In the case of State, ex rel. Zielonka, City Solicitor, v. Marshall et al., post, 467, a petition was filed in this court on the 23d day of April, 1918, asking that a writ of prohibition issue against the utilities commission of .Ohio, prohibiting and restraining that commission from hearing and determining a motion filed by The Union Gas & Electric Co. and The Cincinnati Gas & Electric Co., in Cause No. 564 pending before that commission, to modify an order made and entered by the utilities commission on January 26, 1917, for the reason that that order was entered in pursuance and furtherance of an agreement of settlement entered into between the utilities named and the city of Cincinnati, and that, therefore, the same is not only an order of the utilities commission, but a contract between the city of Cincinnati and The Union Gas & Electric Co. and The Cincinnati Gas & Electric Co., and for the further reason, that the city of Cincinnati, on the 17th day of April, 1917, adopted a charter in accordance with the provisions of Article XVIII of the Constitution of Ohio, under the provisions of which the council of the city of Cincinnati is authorized to fix the rate that may be charged by a public utility for commodity or service furnished to the municipality and its citizens. In that case, this court did not sustain the contention of the city of Cincinnati, that the utilities commission of Ohio is without jurisdiction because that city had adopted a charter authorizing its council to fix rates that may be charged by public utilities for commodity furnished or services rendered to the municipality and its inhabitants, but it did find that the contract of settlement between the city and the utilities named, in pursuance of which the order of the utilities commission was entered, was and is a binding and subsisting contract between the parties thereto, and for that reason the utilities commission has no authority to change the rate fixed by that contract during its term.

The determination of the question in this case involves the construction of the language used in our own constitution. For that reason, authorities from other states would not be helpful, except in so far as they discuss the principle here involved. It is sufficient to say that the authorities in other states are practically unanimous in holding that municipalities' may exercise police power in conformity with the general laws of the state. It is claimed that California is an exception to this rule, but Section 6 of Article XI of the Constitution of California expressly provides that “All charters * * * framed and adopted by authority of this constitution, except in municipal affairs, shall be subject to and controlled by general laws.”

This provision of the constitution of California would seem to except municipal affairs from the control of general laws, while in Ohio the constitution, in just as explicit terms, provides that municipalities may adopt and enforce police regulations not in conflict with the general laws.

Notwithstanding the provisions of Section 6 of Article XI of the Constitution of California, the supreme court of the United States held in the case of Home Telephone & Telegraph Co. v. Los Angeles, 211 U. S., 265, that “Only the legislature of a state, or a municipality specifically authorized thereto by the legislature, can surrender by contract a governmental power such as fixing rates,” and that the constitutional provisions above referred to conferred no such power upon the municipalities of that state.

It is further contended on behalf of the telephone company that it is not a local public utility, but that it is operating within and without the city of Cleveland and has established long-distance communication with other parts of the state, and that for this

reason it should be distinguished from public utilities of a purely local nature.

This question, however, is unimportant in the determination of this case.

Judgment reversed,

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

Wanamaker, J.,

dissenting.

The majority decision, boiled down, holds that the council of Cleveland, under the constitutional amendments of 1912 and under the new charter made pursuant thereto, has no legal right or power to fix telephone rates. for the city of Cleveland. That, hereafter, is to be done by a state commission, pursuant to a state statute.

CONSEQUENCES OF THIS JUDGMENT.

What, now, are the legal and logical consequences of the doctrine announced in this decision ?

The people are responsible for the consequences resulting from the plain provisions of their own state constitution; it is their act. The courts are responsible for the consequences of their construction of doubtful provisions of the constitution, because it is the court’s act.

If a state commission may regulate telephone rates for a municipality and its inhabitants, in the exercise of the state’s police power, it may regulate telephone companies in all respects in their municipal operation. This same doctrine must of course be carried and applied to water, heat, light, and transportation companies, indeed to all public utilities serving the necessities, comforts and conveniences for the municipalities of Ohio and their inhabitants.

Whenever and wherever the general assembly desires to exercise its police power over the municipalities of Ohio, it may hereafter do so to the full, without any municipal interference. The general assembly, in the exercise of the same state police power, may under its police power provide for a state police commission, a state fire commission, a state health commission, and every other variety of commission, using the city officers as mere cogs in the state governmental machine by commission.

AUTOCRACY IN OHIO.

This would make the governor of Ohio, who is the appointive power, an actual autocrat over all the cities and villages of Ohio. His power over all cities and villages would be equalled only by the Prussian of Potsdam. The commission, in any given case, could as well be one man as two, three, or more. This one man could control the utilities for the three million people of the cities against their will and without consulting their welfare.

The people would have no voice in the choice of the commission; they would have no control over its official orders, no right of referendum on its official action, and no right of review save to the supreme court, a body that necessarily cannot be as fully informed of local conditions in each separate city as the municipal authorities themselves.

When such action as the fixing of rates is done by the city council, it is done by the city’s own officers, elected by them, responsible to them, and removable by them, and in addition thereto, for the further protection of the people, the voters have the right of a referendum on any such ordinance of a city council.

This is pure, practical democracy, while the state commission plan. is pure, practical autocracy. Whatever else we may call it, it is not “government by the consent of the governedit is not “government of the people, by the people and for the people.’31

FUNDAMENTAL PRINCIPLES.

Our Ohio forefathers in 1802 wisely said in their Bill of Rights, Section 18, Article VIII:

“That a recurrence to the fundamental principles of- civil government, is absolutely necessary to preserve the blessings of liberty.”

Let us emulate and apply their wisdom.

A brief history of the constitutional changes by amendment will be not only interesting but illuminating on the question involved in this case.

The Ohio Constitution of 1851 announced the sacred doctrine that “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary.” Section 2, Article I, Bill of Rights.

Prior to 1910 there had been widespread and deep:seated protest by the people, to the effect that the political powers delegated in the Constitution of 1851 had been unjustly used and politically perverted, resulting in the growth and establishment of intolerable abuses, special privilege, inequality of right and burdens, and that the government of Ohio which was designed to be “government of the people, by the people and for the people” had failed in the accomplishment of its primary and paramount purpose.' Agitation for a new convention, to make a new distribution and delegation of powers, with efficient safeguards, for the protection of the people’s rights and the public welfare, had been going on for years.

It finally culminated in a decisive demand for such constitutional convention by express vote of the people at the regular election of 1910. At this election the question of a new constitutional convention was submitted and was overwhelmingly adopted by the voters of Ohio by the unprecedented vote of 693,263 for to 67,718 against, more than ten votes to one in favor of a new constitution, a new political will, a “new order.”

Every county in Ohio voted overwhelmingly for it, the ten counties containing the ten largest cities of Ohio showed a vote of 381,493 for to 16,812 against, a ratio of more than seventeen votes for to one against.

Forty-one separate proposals adopted by the constitutional convention were submitted to the voters, and thirty-three of them were adopted, most of them by very decisive majorities. For instance, in the ten counties containing the ten largest cities of Ohio, the vote in favor of the home-rule amendment, Article XVIII, showed a majority of more than 100,000.

All of the foregoing is offered merely for the purpose of showing that the people of Ohio were determined, so far as it lay in their power, to vitally and radically change the “old order,” as declared in the Constitution of 1851, by establishing a “new order,” a new political will of the date of 1912, to promote and protect government by the people.

Now let us make a general survey of these new amendments, in order to ascertain the general plan and purpose in making these changes, as shown by what was said and done.

GENERAL PURPORT AND PURPOSE OF CHIEF CHANGES.

The executive branch of the government had its appointive power radically limited and hedged about by the civil, service amendment.

The judicial branch of the government had its powers definitely and radically limited as to its jurisdiction, as to its right to set aside verdicts as against the weight of the evidence, as to its right to declare statutes unconstitutional, and in other particulars.

The legislative branch of the government was henceforth to be restrained and limited by the right of veto upon every legislative act, save emergency acts and a few other special exceptions, through the right of the popular referendum. The people also declared for themselves the right of the initiative. These two reservations of power, definitely expressed and safeguarded in the constitution, marked the most radical limitation upon the power of the general assembly that has ever been recorded in the history'of Ohio.

The general assembly was substantially deprived of the right to confer jurisdiction upon the court of appeals and the supreme court, the people having expressly prescribed that jurisdiction through constitutional grant made by themselves.

The people withdrew, or tried to withdraw, municipalities from the guardianship of the general assembly of Ohio, and declared in substance that Ohio’s “municipalities are and of right ought to be free and independent in their municipal affairs.1”

Other radical changes along the line of limiting the legislative power of the general assembly might be enumerated, but sufficient has been shown of the general nature of the changes made in the political codicil of 1912 to clearly and unmistakably indicate that the people of Ohio proposed to make ,a new distribution of power, a new delegation of power, to safeguard government “by the people,” through a “new order,” the “new” amendments.

SURVEY OF HOME-RULE AMENDMENT.

Let us now take- a general view of the special home-rule amendment, known as Article XVIII, with particular reference to its restraints and limitations upon the general assembly of Ohio as to its further control and guardianship of Ohio’s municipalities.

This amendment is .composed of fourteen several sections, ninety-five per cent, of it is new matter, which in itself would strongly suggest a purpose to materially and radically change the “old” order. It was submitted to the people of Ohio under the title of “Municipal Home Rule.” Why “Municipal Home Rule ?”

For nearly a half century the cities and villages of Ohio had been in political bondage to the general assembly. Annually, or at least biennially, the political bosses and profiteers, high and low, had through the general assembly made political footballs of the municipalities of Ohio by various kinds of “ripper” legislation. The general assembly had assumed a political guardianship over the cities and villages, which the inhabitants of those municipalities had long and vigorously resented. The people presented their grievances to the constitutional convention, and that convention, by a vote of 99 for to 14 against, granted the people of Ohio home rule, which was overwhelmingly adopted at the September election of 1912.

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

What are the declarations in that home-rule amendment, Article XVIII?

I want to consider this amendment by sections, and I ask special attention to them.

GENERAL ASSEMBLY, “HANDS OFF MUNICIPALITIES.”

This amendment, in my judgment, might well have been styled “General assembly, hands off Ohio’s municipalities.”

An examination of the several sections will disclose and demonstrate this fact.

“Section 1. Municipal corporations are hereby classified into cities and villages. * * * The

method of transition from one class to the other shall be regulated by law.”

For almost a century the general assembly had exercised the right of classifying municipal corporations. Many corporate abuses had resulted from the flagrant manner in which this classification had from time to time been made. This section expressly withdraws this right from the general assembly by a constitutional classification put into express words.

Here surely is a warning to the general assembly, “hands off!”

The cities of Ohio were thereafter to have “immunity” from classification by the general assembly.

“Section 2 [part 1]. General laws shall be passed to provide for the incorporation and government of cities and villages.”

This provision is substantially the same as that of the old constitution. It is admitted by all, however, that it relates simply to the form and method of government, rather than to any grant of power. The enactment of general laws by the general assembly under this part of Section 2 would apply to a municipality*,of Ohio only until such time as a municipality would withdraw itself'from the general law, or exempt itself from the general law by the adoption of a charter under Section 7 of the home-rule amendment. (State, ex rel. Toledo, v. Lynch, 88 Ohio St., 71.) And when a municipality, by charter, withdrew itself from the general law, it would again be “Hands off!” to the general assembly. The city should then be free in'its municipal functions. Henceforth it was to be immune from general law, as decided in the Lynch case, supra.

Sections 4, 5 and 6 grant directly to the municipalities themselves all political power necessary to deal with public utilities. The broad circle of power herein granted is clearly comprehensive enough to include all kinds of regulation.

But even if it were not so, Section 3, which will be discussed later, is more than broad enough in the police power therein necessarily included to cover any phase or feature touching public utilities.

The remaining sections of Article XVIII are to the same effect, with the exception of Section 13.

Section 13 is strikingly significant. The part pertinent here reads as follows: “Laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes, and may require reports from municipalities as to their financial condition and transactionsf’ etc.

The whole of Article XVIII, known as the home-rule amendment, under the heading of “Municipal Corporations,” deals at great length with powers of municipal corporations.

But Section 13 is the only section permitting or allowing in any sense any limitation by the general assembly, upon the “municipal” powers of municipal corporations.

DIMENSIONS OF POWER APPEAR IN DEBATE.

The soundness of my position in this behalf clearly appears from the following debate in the Constitutional Convention, between Professor Knight, in charge of the home-rule amendment, and Judge Peck, one of the leading lawyers of the convention, both of whom rendered most distinguished and efficient service in that convention.

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

“Mr. Knight: All the powers of local self-government, subject to the limitations of section 12 [now Section 13].

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

“Mr. Knigpit: There is a specific limitation in section 12 [now Section 13].

“Mr. Peck: Point it out.

“Mr. Knight: Section 12 [now 13]: ‘The general assembly shall have authority to limit the power of municipalities to levy taxes and incur debts for local purposes.’ ”J 2 Constitutional Debates, 1451.

From the foregoing course of reasoning, as well as the debate, which only confirms it, it clearly appears that no other limitation than Section 13 upon “municipal” power in municipal affairs was to be given to the general assembly.

The rule universally and unexceptionally recognized and applied is that “the enumeration of particular limitations presumes the exclusion of all other limitations.”

If the constitutional convention had intended any other limitation in supervising municipal power, Section 13 was the natural and logical place to put it. The absence of any such further limitation is therefore an unanswerable argument that no further limitations were intended.

Remembering now the decided purpose of the people of Ohio to abolish the old order and establish a new, as shown by their ten to one vote in 1910, remembering the general tenor and purpose of their leading amendments curbing and limiting the executive branch of the government, the judicial branch of the government and especially the legislative branch of the government, all for the purpose of safeguarding for themselves the people’s power and the people’s rights in their government, remembering especially their restraints and checks put upon the general assembly in Article XVIII, amounting in substance to “Hands off, general assembly,” we are brought face to face with Section 3.

SURVEY OF DECISIVE SECTION 3.

For convenience sake, Section 3 will be divided as follows:

Part 1. “Municipalities shall have authority to exercise all powers of local self-government, and Part 2. “to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

It is admitted in the majority opinion that the answer to the one big question in this case is found in said Section 3. I accept the issue so made. What does this section mean — what rule shall we apply in ascertaining its meaning?

TECHNICAL RULES HAVE NO APPLICATION.

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

Counsel for the telephone company admit in their brief: “The constitution should be liberally construed in respect to all governmental matters of purely local and municipal concern, so that municipalities may be unhampered in the exercise of powers legitimately covered by very general constitutional provisions.”

This new constitutional provision being intended to remedy old abuses is of course a remedial provision and all remedial provisions of constitutions or statutes must be liberally construed so as to carry out the intention of the makers and furnish the new remedy for the old abuse.

It is apparent that part 1 of said Section 3 is in exceedingly general terms. Black on Interpretation of Laws, page 30 (citing cases), says: “Where the constitution grants a power in general terms the grant includes all such, particular and auxiliary power as may be necessary to make it effectual.” Applying these common sense rules of interpretation to Section 3, let us study its meaning and application.

The syllabus of the court in the present case entirely ignores the first half of Section 3. The majority opinion gives it mere passing notice; nowhere does it attempt to either define or describe it, much less to make any application of it. All it does is to make a mere declamation in the words of the section itself. This silence seems significant, equalled only by the silence of the Sphinx. Heretofore, it was presumed that the major part of the home-rule grant of power lay in this very part of Section 3 which is here so studiously avoided.

WHAT JUDGES SAID IN THE LYNCH CASE.

In the first home-rule case considered by this court, in 1913, State, ex rel. Toledo, v. Lynch, 88 Ohio St., 71, Judge Donahue in his concurring opinion said, at page 108:

“That part of Section 3 with which we are particularly concerned reads as follows: ‘Municipalities shall have authority to exercise all powers of local self-government.’ Certainly there is nothing obscure or uncertain in this language. It is so plain, concise and unambiguous that it affords no ground for controversy and suggests no doubt as to its meaning.”

Judge Donahue, at page 112, continues:

“The fact remains that at the time of the adoption of this amendment municipalities were recognized as creatures of the state, possessing only such powers as the general assembly of the state chose to confer upon them; and it has been uniformly held, in Ohio at least, that municipalities had no power beyond the express powers granted to them by statute. It was this condition of affairs that this provision of the constitution intended to change, and this, I think, these amendments have accomplished. It would therefore follow that the provision of Section 2, authorizing the enactment of general laws for the government of cities and villages, and additional laws for the government of municipalities adopting the same, does not authorize the legislature to grant any powers to municipalities, or to expand the powers already granted by the people, or to fix any date or any condition precedent to the exercise of these powers. The grant of powers found in Section 3 is full, absolute and complete within itself. Therein is granted authority to exercise all powers of local self-government.”

Judge Shauck in the opinion for the court says at page 97:

“They [all powers of local self-government] are such powers of government as, in view of their nature and the field of their operation, are local and municipal in character.”

Judge Wilkin in his concurring opinion says at page 100:

“The very purpose of the home-rule amendment is to lodge directly with the people of the municipality the authority to govern their local domestic affairs within the territorial limits of the city as they may choose.”

This clear, comprehensive grant of general power in part 1 of Section 3 has, strange to say, suddenly become very confusing and exceedingly restricted. If the first part of Section 3 was clear when the Lynch case was decided in 1913, what has happened to make it cloudy and confusing now ? If it was then the broad, general grant of governmental power indicated in those opinions, why should it be narrowed now to a mere shred of power? Why ignored in the syllabus and opinion? Why should part 2 of Section 3 in effect be permitted to destroy part 1 ? Why should the tail wag the dog?

Now it would seem self-evident that “all” powers means all powers. It surely does not mean “some” power nor “part” power. The constitution-makers are presumed to have used such simple words in their usual and ordinary meaning. They not only meant all powers in degree but all powers in kind. They evidently meant all powers included within the circle of governmental powers to successfully govern municipalities as such, to successfully conduct municipal affairs in the 20th century.

Therefore the grant of power in part 1 of Section 3, “municipalities shall have authority to exercise all powers of local self-government,” includes all municipal powers .from A to Z, sufficient for efficient municipal government in all municipal affairs — all local self-government.

After making this grant of power to municipalities they evidently intended to add something by the use of the word “and,” by which they joined part 2 on to part 1 of said Section 3. “And,” is used to add, not subtract. It means more 'not less.

Now, what additional power did they give to cities by virtue of part 2 of Section 3 ?

Let us remember that there are three kinds of governmental power exercised in every municipality, (1) municipal, (2) state, and (3) national. We have already demonstrated, if it be possible to demonstrate it, that all municipal power, subject of course to Section 13, was granted directly to municipalities in their municipal affairs in part 1 of said Section 3. All municipal power having therefore been granted, part 2 cannot refer to municipal power because there was none left to grant, part 1 having already made the complete grant of municipal power. Part 2 therefore must relate to state or federal power. It is agreed it cannot relate to the latter, hence it must relate to the former — state power.

Now, what state power did they grant in part 2 ?

In the old Harvey and Holbrook grammars we were frequently told that in order to analyze or diagram a sentence we had to supply some missing words which, however, were clearly implied.

Let' us get back to some of those first principles and see how part 2 of this section will read when such words are supplied.

First, part 1: “Municipalities shall have authority to exercise all powers of local self-government” and

Second, part 2: Municipalities shall have authority to exercise certain state power in local self-government, to-wit, “to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

I maintain that this preserves the full meaning of part 2 and only accentuates the distinction between part 2 and part 1 so as to give reasonable force and effect to each part of Section 3.

Naturally, when the municipality should exercise a state power, touching a subject-matter of the state upon which the state had legislated, it would seem sane and salutary that such local police, sanitary or other regulation should not be in conflict with the general law of the state touching that same subject-matter; that is to say, in the exercise of a state power the municipality should not say that a thing was lawful which the state at large through its general assembly had said was unlawful, neither should it say that a thing was unlawful which the state through its general assembly had said was lawful.

Being a function of state government it must have uniformity of operation, and in order to have such uniformity municipal regulation must not be in conflict with state regulation.

After ignoring the major grant of home-rule power to municipalities in part 1 of Section 3, after ignoring the definition and dimensions of this grant of power, as shown by the opinions of various judges heretofore quoted, in accord with the plain purpose of the constitution-makers and adopters, the majority in this case take refuge in the tail end of Section 3 and use this minor grant of state power in part 2 to strangle and bleed to death the major grant of municipal power in part 1 of Section 3.

COURT IS CONFUSED.

The fatal error into which the court has fallen in this case comes from a confused conception of what police power actually is. The fatal fallacy is in the presumption that police power in Ohio is a state power.

Police power is a sovereign power of government. Centuries ago Louis XIV said: “I am the state.” The Kaiser to-day says: “I am the state — all the states.” But the people of Ohio have said in their constitution of 1851, and it is still in force: “We are the state.” —r- “All political power is inherent in the people.”

Now, when the people through their delegates met in constitutional convention they had the undoubted and • conceded right to delegate and distribute their sovereign power to whomsoever they pleased. They had the right to’delegate to the state such governmental powers as they pleased and they had a right to delegate to the municipalities such governmental power as they pleased, and to say that they did not intend to grant to the municipalities any police power is the veriest rot.

Everybody knows that if there is one place in the state and in the nation where police power is more needed than any other place it is in the municipalities. It is hard to be patient or polite in exposing such a foolish fallacy as this proposition.

Probably we will understand it better if we undertake to define police power.

What is police power?

POLICE POWER DEFINED.

“Police power is the name given to that inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy in a broad sense demands, for the benefit of society at large, regulations to guard its morals, safety, health, order, or to insure in any respect such economic conditions as an advancing civilization of a highly complex character requires.” 8 Cyc., 863.

The police power, in effect, sums up the whole power of government. All other powers are only incidental and ancillary to the execution of the police power. Justice Day has discussed police power at length in Sligh v. Kirkwood, 237 U. S., 52, which case is often quoted by the federal supreme court as the best attempted definition of police power. He says at page 58:

“The limitations upon the police power are hard to define, and its far-reaching scope has been recognized in many decisions of this court. At an early day it ivas held to embrace every law or statute which concerns the whole or any part of the people, whether it related to their rights or duties, whether it respected them as men or citizens of the State, whether in their public or private relations, whether it related to the rights of persons or property of the public or any individual within the State. New York v. Miln, 11 Pet. 102, 139. The police' power, in its broadest sense, includes all legislation and almost every function of civil government. Barbier v. Connolly, 113 U. S. 27. It is not subject to definite limitations, but is coextensive with the necessities of the case and the safeguards of public interest. Camfield v. United States, 167 U. S. 518, 524. It embraces regulations designed to promote public convenience or the general prosperity or welfare, as well as those specifically intended to promote the public safety or the public health. Chicago, &c., Railway v. Drainage Commissioners, 200 U. S. 561, 592. In one of the latest utterances of this court upon the subject, it was said: ‘Whether it is a valid exercise of the police power is a question in the case, and that power we have defined, as far as it is capable of. being defined by general words, a number of times. It is not susceptible of circumstantial precision. It extends, we have said, not only to regulations which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity * * * And further, “It is the most essential of powers, at times the most insistent, and always one of' the least limitable of the powers of government.” ’ ”

Presuming that the delegates who formulated Section 3 understood something of the meaning of police power — understood something of the needs of municipalities — it is sheerest nonsense to say that they did not intend by the general grant of power in part 1 of Section 3 to delegate the police power, without which municipal government would have about as much vitality as a graveyard. Such a thing is impossible to conceive.

COURT CONFUSED AGAIN.

Another trouble at the bottom of the majority opinion lies in their confusion as to part 2 of Section 3 in treating “police regulation” as synonymous with “police power.” All men are animals, but all animals are not men. All police regulations are included within the , police power, but all police power is not included within police regulation. They never were. They never should be.

Such confusion is almost incredible when we stop to think that the first half of Section 3 uses the word “powers” in its broadest, unlimited sense, while the same section in its last half uses the word not “powers” but “regulations.”

.How can this court say that these two terms are synonymous? If so, why didn’t the constitutional convention use the same word to express the same meaning in the second half of Section 3 that was used in the first half of Section 3 ?

The words “police regulation” instead of “police power,” as used in our Ohio statute law, relate entirely to a restricted or limited “state” power, while the word “powers” as used in the first half of Section 3 relates clearly and unquestionably to an unlimited and unrestricted “municipal” power, save as it is modified as to taxes and debts in Section 13. Indeed, the court’s construction resulting from this confused idea touching “all powers” and “police regulations” is a surprise to itself, as appears from the following language of the opinion:

“If it were conceded that police power may be restricted to this narrow meaning in one instance and given a broader meaning in another, it must follow that police power in the larger sense of the term would include the narrower or restricted meaning.”

The opinion later continues:

“However that may be, there is no apparent reason whatever why the constitution should delegate to municipalities full authority to exercise police power in the broader sense of the term and then limit and restrict them in the exercise of local police power.”

Every reason in the world why. When the municipality ■ comes to exercise a “state” police power, as it does in part 2 of Section 3, it should be restricted by or conform with the general law. When it exercises “municipal” police power it should be absolute, unlimited and unrestricted. They are two entirely different kinds of power, the one relating to the municipality as a municipality and the other to the municipality as a political subdivision of the state.

Still apologizing for the unreasonable consequences of this construction, the opinion reads: “The exercise of local police power is of vital importance to large centers of population. If police powers may be divided along the lines suggested, it is of far more importance to municipalities that they should have authority to exercise local police power untrammelled by the general laws of the state, than that they should have absolute right to exercise the police powers included in the broader definition suggested by counsel for the city of Cleveland, yet Section 3, Article XVIII of the Constitution, does limit and restrict municipalities to the exercise of local police power in conformity with the general laws of the state.”

This language is somewhat hazy and lacks the clear definition and distinction noted above between municipal police power that is inherently and essentially local to the municipality and the state police power within the municipality when it is regarded merely as a political subdivision of the state, in essentially state affairs.

The opinion later continues, still regretting:

“These limitations have been written into the constitution by the people of Ohio. Whether wise, or unwise, it is not within the province of a court to eliminate them upon the theory that municipalities shall have full authority to exercise police power, * * * . It may be possible to urge many good reasons why the home-rule amendment should not have contained these limitations upon the governmental powers granted to municipalities. The answer, however, is that it does contain these limitations,, and that courts must give them full force and effect.”

The opinion is strikingly silent upon another proposition emphatically essential to a correct understanding of the question; it nowhere undertakes to discuss or define “municipal affairs” or “local self-government,” which are, in substance, equivalent. Neither does it claim that the fixing of rates of a public utility for a municipality and its inhabitants within the municipal limits is not a municipal affair.

If the court would have clearly defined a municipal function, or distinguished a municipal affair from a state function or state affair, it would not have been led into this indefensible error.

The word “municipality” has a history and etymology with which all students of government are reasonably familiar. It comes from the old Latin word “municipium ” which meant a free city, having the sovereign right to local self-government. However, in that city was exercised not merely the government of the municipality as a municipality, but the government within the municipality as a part of or a political subdivision of the state. This fact is in no wise even considered in the opinion of this case.

There would be no confusion at all if the court would treat the municipality as a merely incorporated community, directly and expressly con- • trolled and governed by the first half of Section 3, and the municipality as a political subdivision of the state controlled and governed by the last half of Section 3. That gives immunity to the municipality as a municipality, and uniformity or conformity to the general laws of the state when considered as a political subdivision of the state. This gives reasonable force and effect to the whole of Section 3 and in full accord with the intention of the constitution-makers and the constitution adopters.

POLICE REGULATIONS DEFINED.

In order to not merely declare but to demonstrate that the words “police regulations” as used in the laws of Ohio had a well-defined meaning and use in connection with the statute law of Ohio, I want to adopt the language of Judge Johnson in the case of Fitzgerald v. City of Cleveland, 88 Ohio St., 359:

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

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

“It is a well-settled rule1 that the body adopting amendments, such as are here involved, will be presumed to have had in mind the course of legisla-

tion and existing statutes touching the subjects dealt with. People, ex rel. Jackson, v. Potter, 47 N. Y., 380, and cases cited. The legislature of Ohio in the codifications adopted by it, covering many years, including the last one adopted, has included a separate title, designated by it Police RegulationsJ in which it has included the general laws of the character we have above described. If it had been intended that the limitation should comprise the wide and elastic scope contended for, it would have been so expressed.”

I desire to supplement and reinforce this definition of “police regulations” appearing in the opinion of Judge Johnson, by calling attention to the fact that in 3 Page & Adams’ Annotated Ohio General Code, page 209, a schedule of “Police Regulations” appears as a part of the Ohio statutes, properly and particularly classified and scheduled, which statutes were in general use and circulation among the members of the Constitutional Convention, the profession and the public. In that schedule of “Police Regulations” appears the words, adulterations, animals, auctions, butter and cheese factories, cigarettes, explosives, gaming, grist mills, innkeepers, inspection, intoxicating liquors, labor, mobs, motor vehicles, pawnbrokers, peddlers and itinerant vendors, shows, trading stamps, etc., in all some thirty-four different specifications of “Police Regulations.”

This was, and for many years had been, the meaning and use of “Police Regulations” at the time the constitutional convention met, and the members thereof plainly and pertinently realized that there was no essential difference in principle as to regulations touching these and similar subjects in the country districts or city districts. Pure food free from adulterations was quite as important to the country districts as the city districts. Cigarettes and explosives should be regulated and safeguarded as well within as without corporate limits. Labor and motor vehicles likewise.

The words “Police Regulations” not only appear in the Page & Adams’ General Code, but also appear as early as 1880 in the so-called Williams’ statutes, and later in Bates’ Revised Statutes, Vol. 2, Title V, published in 1897, fifteen years before the constitutional convention met.

It would seem that this long use and understanding of “police regulations,” as used in the statute law of Ohio, would remove all doubt as to the meaning and use of these identical words by the constitutional convention.

Dealing with subjects of such great variety and of such vital importance to all the people of Ohio, the constitution-makers naturally and wisely provided that these state-wide “police regulations,” embracing the general laws of Ohio from Section 5774 to Section 6441, General Code, should be saved to the state for operation within, as well as without, municipalities.

That this was the limited and restricted use of the words “police regulations” further appears from the insertion of the word “sanitary.” If the contention in the majority opinion is sound (that “police regulations” is here synonymous with “police powers” as embraced in the first half of Section 3, part 1), then it was wholly unnecessary to use the word “sanitary,” for the most superficial student of law and government knows that police power always has included sanitary or health regulations.

Again, the use of the words “other similar regulations” corroborates this limited and restricted view of the words “police regulations” because these words were wholly unnecessary if the word “police” was here used in its general and familiar sense.

Now, if I am right that the use of the words “police, sanitary and other similar regulations,” in part 2 of Section 3 of the home-rule amendment, is a limited and restricted one, following their statutory schedule and scope as found in Page & Adams’ Code, supra, and that this was the only use of these words known in either constitution or statute of Ohio, then surely the scope of that schedule “Police Regulations,” the word “sanitary” and the words “other similar regulations,” neither one nor altogether, is broad enough to include a rate-fixing power. It is preposterous. Rate-fixing has been frequently said by courts to be the exercise of a police power. It is more properly the exercise of a proprietary power, the same as every proprietor exercises over his own property. He may use it himself, or he may fix the terms upon which anybody else may use it, or fix the price which third persons may receive for using it.

Bared to the bone, the distinction between these two parts is as follows: part 1 provided for immunity of municipalities from general law in their own municipal affairs in local self-government, while part 2 provided for uniformity of general law throughout the state in all the political subdivisions thereof, towns, townships, cities, villages and the like. It was imperatively necessary that there should be this uniformity of operation of general laws because the constitution expressly required it.

These two doctrines, immunity in part 1 from general law and uniformity of general law in part 2, are entirely consistent, and the only consistent interpretation of the whole of Section 3.

That this is the natural and clearly intended meaning of this Section 3 appears from the address of the constitutional convention, issued to the voters at the time the amendment was adopted, September 3, 1912:

“Cities and villages under the proposed amendment are given the right to frame their own charters, own and regulate their own public utilities and to adopt by ordinances such local police, sanitary and other similar' regulations, not in conflict with general laws, as they may deem necessary. To the general assembly is specifically reserved the authority to limit the power of cities to levy taxes and incur debts for local purposes, to control elections, to examine into the financial condition and transactions of all municipalities, and, by general laws, to make such provisions for police and sanitary regulations and other similar matters as may be for the general welfare of the state.”

Not “the general welfare of a city,” but the whole state.

The majority opinion contains this language:

“It is hardly within the range of possibility, much less probability, that the people of this state intended to vest in the many municipalities of Ohio discretion to exercise unlimited and unrestricted police power.”

Here again you have an absolute failure to realize that police power may be municipal as well as state. Municipal power is unlimited in the first half of Section 3, (see Judge Donahue’s opinion, supra), except by Section 13.

The state police power is exceedingly limited by the last part of Section 3. The absence of limitation in the first half and the presence of limitations in the second half are entirely consistent. Why should not the people of a city know much more about running their own local affairs than some board or commission in Columbus? It was in the community life of the nation where democracy had its birth. Local government is constantly in touch with its people. Why should not" the people have the power to govern themselves ? For, be it remembered, we will never get government for the people until we get government by the people.

The case of State, ex rel. Toledo, v. Cooper, 97 Ohio St., 86, is cited in support of the majority opinion. It has no application, since it is limited not by Section 3 but by Section 13 of Article XVIII. This is too apparent for argument.

The other cases cited in the majority opinion fall into one of three classes:

1. Either the right of home rule was not raised in the case, or

2. The city had no charter, or

3. The police regulation in question was inherently and essentially such as was contemplated in the statutes referred to as “police regulations” in the General Code of Ohio.

In any event, they have no pertinency in this case.

Inasmuch as it has been admitted throughout the majority opinion that the case must stand or fall upon Section 3 of the home-rule amendment, it is unnecessary to consider Sections 4, 5 and 6, dealing with municipalities, except to say that these various sections taken together clearly recognize the right of municipalities to own and operate their own public utilities, and inasmuch as the greater must include the less they clearly would have the right to regulate any privately owned utility, or at least fix the terms and conditions upon which it should operate within the city.

The matter quoted from the constitutional debates purporting to be a statement by Mr. Harris, of Hamilton county, chairman of the committee, has nothing in it inconsistent with the debates quoted herein between members Peck and Knight.

The application in the majority opinion sought to be made of Section 2, Article XVIII, as to the creation of boards and commissions, being in general terms, cannot be held to nullify a more specific provision under Article XVIII applying to municipal governmental power. The more specific provision controls as against the more general.

The argument as to the understanding and construction given the utility commission act by the cities of Ohio for some three or four years hardly deserves notice. That sort of argument, in favor of the bogus classification of cities, was invoked in this state for over half a century until finally after a long and vigorous fight it was overruled by this court in the Cleveland and Toledo cases in 1902.

The fact of the matter is that now is the first time this question of rate-fixing has been directly and squarely before this court.

The case of Stange v. Cleveland, 94 Ohio St., 377, relates to a labor regulation clearly within the schedule of police regulations and there itemized as such.

Likewise the case of City of Fremont v. Keating, 96 Ohio St., 468. The subject-matter there was a motor vehicle, and that too is expressly itemized in the schedule of police regulations.

The majority opinion states that the city is not • an illustration of imperium in imperio and cites the case Billings v. Cleveland Ry. Co., 92 Ohio St., 478. Strictly and technically speaking the opinion is correct. Metaphorically and politically speaking the opinion is wrong.

We have used this phrase in regard to the state government within the federal government and it was once a part of the great seal of Ohio, and exactly as the state government is sovereign in state affairs, though a part of the nation, so the municipal government is sovereign in municipal affairs, though a part of the state, save as it is limited by Section 13 of Article XVIII.

The parent case under the home-rule amendment is State, ex rel. Toledo, v. Lynch, 88 Ohio St., 71, where it was presumed this court had decided something.

That case was very thoroughly briefed by a large number of able and distinguished counsel, was very thoroughly argued, and long and carefully considered by the supreme court.

Judge Shauck, after the most thorough and painstaking consideration of the question involved, and he will not be regarded as excessive in his zeal for the amendment, used this language touching the home-rule amendment:

“This article provides two modes of securing the permitted immunity from the operation of the uniform laws which the legislature is required to pass. One of them is defined in the second section, and manifestly it is not self-executing, for it expressly authorizes the legislature to pass 'additional laws,’ that is, laws additional to the general laws which the legislature is required to pass, such additional laws to become operative in a municipality only after their submission to the electors thereof and affirmance by a majority of those voting thereon. The other mode is defined in the provisions of the later sections relating to the adoption of charters.”

It is significant that neither in the syllabus nor in the majority opinion in the instant case is any reference whatsoever made to this “immunity,” as discussed and decided in the Lynch case, but all cities and villages are regarded as subject to all police power generally, whenever the legislature sees fit to exercise it in the shape of a general law.

Cleveland adopted a charter and therefore claims as a matter of right, under the Lynch case, its “immunity” from legislative interference by the state in its own municipal affairs. The absolute silence of the majority opinion as to the Lynch case shows its studied effort to plow around this holding of the supreme court of Ohio, in which judgment there concurred Judges Shauck, Newman, Wilkin, Johnson and Donahue, some for one reason, some for another.

Judge Donahue further laments the doctrine in Judge Shauck’s opinion in Lynch case, supra, and declares his fidelity to home rule in the following language, at page 111 of his concurring opinion:

“This is in line with the former proposition as to general laws, and I do not care to discuss it further, except to say that if either this or the former construction is to obtain, then the municipalities are still dependent upon the general assembly of the state to measure out to them their power and authority to control their own local affairs, and Section 3 of Article XVIII might just as well never have been written. Undoubtedly it was the intention of this article to change the existing condition of affairs and grant to municipalities directly the authority to. exercise all powers of local self-government”

When did telephone rates within the city of Cleveland, and for the people of Cleveland, cease to be embraced within the words “local affairs ?”

And when, pray, did the “intention of this article to change the existing condition of affairs and grant to the municipalities directly the authority to exercise all powers of local self-government” change so as to vest in the state all the police power needed for the municipality ? It was a state power before the amendment; the municipality had only such as the general assembly saw fit to delegate to it. But clearly it was the intention of the amendment, as indicated in the quotation above, to make the grant direct to the people of the city as to all police power in any and every degree necessary for “local self-government.”

The Lynch case is fundamental upon the proposition of the “immunity” of municipalities from general laws, which proposition is wholly disregarded in the case at bar.

The next important case construing the same Section 3, Article XVIII, is that of Billings v. Cleveland Ry. Co., 92 Ohio St., 478. This case, to my mind, is controlling and decisive of the principle involved here. The city of Cleveland by virtue of its charter granted the right to a street railway company to construct its tracks in Euclid Avenue, without the consents of the majority of the property owners, as provided in Sections 3777 and 9105, General Code. An abutting property owner upon this street, objecting to the railway company locating its tracks in Euclid avenue, sought to enjoin the company from the construction of such track, by reason of the fact that it had not complied with these sections. In the Billings case this court held that these statutes were of no effect in a city that had adopted a charter, where the charter had provided expressly that no such consents were necessary.

In short, the court held that the city of Cleveland was entitled to “immunity” from the general law, by reason of the home-rule article and the charter adopted pursuant thereto.

The first paragraph of the syllabus in that case reads as follows:

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

Manifestly if the charter may provide for it, then such charter may conflict with the statute touching the same matter. Both cannot control. But the Billings case holds that the charter controls. Why ? Because the power of the city is being exercised with reference to “municipal affairs,” or to matters of “local self-government.” The members of this court concurring in that judgment were Chief Justice Nichols and Judges Johnson, Donahue, Wanamaker and Matthias.

Now, the same doctrine that applies to street railroads in the use of the streets and public highways of a municipality must of necessity apply to a telephone company in the use of the streets and public highways of the city. They are both transportation agencies, they both must obtain a franchise from the city, they both are public utilities, they both are essential to an indispensable public service, and in all substantial respects are analogous in their relation to the city.

The lines of both extend beyond the city. A part of the business of both is extra-territorial, including Cuyahoga county, including the main thoroughfares of the state; indeed it may be interstate.

I am frank to confess that I cannot understand the difference in principle between a steel rail within the city that may extend without the city and a steel wire within the city that may extend without the city, both used for transportation services.

If the city may regulate the steel rail within the city as to the price for transportation of men, I cannot understand why it may not regulate the steel wire within the city and the price for the transportation of messages. It is too- much like tweedledee and tweedledum.

The majority -opinion undertakes to avoid the controlling effect of this decision by claiming that “The grant to a street railway company of a right to lay its tracks in the streets, does not involve the exercise of police power, but is solely and only a governmental function.”

This is a distinction without a difference. All police power is a governmental function and 95 per cent, of governmental functions is in the exercise of the police power, which according to the definition of Judge Day in the Sligh case, supra, is as broad and long, as deep and high, as the public welfare.

To say the least the language quoted is exceedingly loose. If the regulation of streets and highways, or any other public or private property, as to its uses and abuses, is not police power, in the name of common sense what is it?

It is of course impossible to note all of the errors of fact and judgment, so apparent in.the majority opinion, but one more is so characteristic of its recklessness in reason that I shall give more than passing attention to it. This language appears in the opinion:

“This section [Section 2, Article XIII] was adopted at the same time that Article XVIII was adopted. There is therefore no theory upon which it can be claimed that Article XVIII repeals by implication any provisions of Section 2 of Article XIII. On the contrary, the presumption obtains that both of these provisions should be given full force and effect; yet if Section 3 of Article XVIII is to be given the construction contended for by counsel for defendant in error, it would practically destroy the provisions of Section 2 of Article XIII.”

I concede that such constitutional construction should be adopted that “both of these provisions [Section 3, Article XVIII and Section 2, Article XIII] should be given full force and effect.” But I hold this doctrine applies not only to these provisions of the constitution, but to all provisions of the constitution.

If the majority had applied this rule to both parts of Section 3, they would not have held that the minor grant of “state” power, with the limitation “not in conflict with general law,” as found in the last half of Section 3, defeated or bled to death the major grant of “municipal” power absolute and unlimited in part 1..

The majority view in effect destroys the general grant of sovereign power in municipal affairs by unreasonably and unnaturally expanding the limited grant of state power in part 2. Under the doctrine last quoted from the majority opinion, it is another case of Hainan’s scaffold.

But does the construction I contend for destroy Section 2, Article XIII ? A reading of the section discloses exactly the contrary. The pertinent part is as follows:

“Corporations may be classified and there may be conferred upon proper boards, commissions or officers, such supervisory and regulatory powers over their organization, business and issue of stocks and securities, * * * as may be prescribed by law.”

The word “corporations’* is the broad generic term and includes all private corporations, those for profit and those not for profit. The corporations referred to are as broad, numerous and varied as our industrial, business and commercial life. Included therein are, of necessity, all steam and interurban railroads, telegraphs, telephones, manufacturing corporations of every kind and variety, as well as public utilities.

Now, what is withdrawn from the state’s broad control under Section 2, Article XIII? Merely the public utilities that are wholly within a municipal corporation, and, therefore, within the home-rule powers embraced within “local self-government.”

The major part of the “supervisory and regulatory” power over the “organization, business, issue of stocks, securities,” etc., of all corporations is still saved to Article XIII. So that instead of Section 2, Article XIII, being destroyed by this section, it is obvious that but a small percentage of its jurisdiction would be withdrawn in behalf of municipal home rule and regulation.

A little more of the acid test. The legislature cannot delegate to the commission a governmental power it did not possess. Therefore, suppose the legislature had passed an act fixing the telephone rates or the street car rates, water rates, or the rates of any other public utility, for the city of Cleveland, would anybody be absurd enough to say that such act would become operative upon the city of Cleveland merely because the legislature had passed it ?

No, it would be an “additional law” needing a favorable referendum before operation.

VIOLATION OF RIGHT. OF REFERENDUM.

One thing the constitution-makers sought to safeguard above all others in the field of legislation, whether for the state at large or the municipalities, was the right of referendum. This they expressly and specifically wrote into the amendments of 1912. In the most insidious way and by the most effective indirection the general policy of “commission” government invoked in this case is, by its special and local operation in the municipal affairs of the cities of Ohio, the clearest violation of the people’s right of referendum as to matters pertaining directly to their own government. What the legislature could not do directly it accomplishes indirectly by the creation of a commission. The legislative act is subject to the referendum. The commission act is wholly free from it.

Abroad we are fighting for democracy, to defend it for the nation and the world. At home we are fighting against democracy, to defeat it for the cities and villages of Ohio. I shall leave it for others to show the consistency between our position at home and abroad. If home rule be a good thing for Belgium, for Servia, for Bulgaria, Poland, Roumania and Ireland, it would seem by parity of principle that it ought to be a good thing under our constitution for Ohio’s cities and villages, and it was so intended.

Democracy should not only be a good thing for the dictionary, the encyclopedia and the text book, not only good for the Fourth of July, but should be a good thing for practical government 365 days in the year.

The battle of Bull Run for democracy in Ohio cities and villages has been fought and lost, as it was fifty-seven years ago. But the war for democracy in Ohio’s cities for home rule, for government by the people, has just begun.

I have gone into this subject at so great length in order to gather together the various views and arguments supporting the home-rule position, having been for many years an advocate of this . first principle of democracy, community democracy, democracy where it was first born.

I submit these views to a candid people, indulging the hope that the majority opinion shall not become the settled law of Ohio, but that a reconsideration upon the part of the public, as well as the bench and bar, shall lead to a reversal of the undemocratic, un-American, unconstitutional doctrine announced in this opinion.

Unless this be done, there is nothing left but the shell of home rule in Ohio. The soul and spirit of it has been by this court transferred by a process' of legal legerdemain back into the hands of the general assembly, from whom the constitution-makers believed they had entirely and eternally divorced it.