
    The Queen City Telephone Company v. The City of Cincinnati.
    
      Action in probate court by telephone company — Concerning mode of constructing its telephone lines — Telephone company must prove, incorporation, etc. — Petition defective as to differences between corporation and city — Does not state facts justifying order of judgment, when — Power of probate court to grant rights to telephone company — Municipal law — Pleadings.
    1. In an action brought in the probate court by a telephone company against a city asking that the court direct in what mode plaintiff may construct its telephone line along the streets of such city, it is incumbent upon the company, as an incident to action by the court in its favor, to prove its incorporation according to law, including the due and legal election of directors; and, upon a plea of the general issue by the defendant, the burden is upon the company to establish such claim.
    2. A petition in such case which shows no specific questions of difference between the corporation and the municipal authorities, but alleges only in that behalf that they have failed to agree on the mode of use of the streets, and prays for a general judgment directing in what mode the plaintiff may construct its telephone lines along the streets, does not state facts justifying any order or judgment in its favor.
    3. The statutes of Ohio do not confer power on the probate court 'to grant to a telephone company the right to put its wires and apparatus in conduits under the streets of a city in the absence of consent by the municipal authorities.
    (No. 9334
    Decided November 28, 1905.)
    Error to the Circuit Court of Hamilton county.
    The controversy out of which the present error proceeding arises originated in the probate court of Hamilton, by the filing, January 26, 1904, of a petition by the Telephone Company against the City, averring in substance that the plaintiff is a corporation organized under the laws of the state of Ohio, for the purpose of constructing, operating and maintaining lines of telephone and telegraph, with the necessary poles, conduits, wires and appurtenances, in the city of Cincinnati; that on the twelfth day of October, 1903, the plaintiff made application to the council of the City of Cincinnati, to prescribe the manner of use by it of the streets, alleys, public ways, and other public property of the City, in constructing plaintiff’s lines of telephone and telegraph, and transmitting at the same time the form of an ordinance that the plaintiff was willing to accept and bind itself to perform and conform to; that on the twenty-fifth day of January, 1904, a committee to whom the application had been referred reported to the council that there was not room in the streets of the City for the accommodation of the lines asked for and that it was inexpedient to make any grant or agreement, which report was by the council on the date above named adopted, and thereupon the council finally rejected the application of plaintiff, and so the City and plaintiff have failed to agree on the mode of use of the streets, alleys, public ways, and other public property of the City in constructing plaintiff’s, lines of telephone and telegraph, although plaintiff has been and is willing to accept the permission upon any terms and conditions prescribed by the council that may be proper and lawful'for it to prescribe, or to accept any amendment which might be lawful and proper to the proposal presented by plaintiff. Then follows a prayer. that the court direct in what mode plaintiff may construct its telephone and telegraph lines along the streets, alleys, public ways and public property 'Of the City so as not to incommode the public in the use of the same.
    
      To this petition the City interposed a motion to make more definite by setting out what streets, etc., plaintiff proposes to occupy with the poles, wires and underground conduits; by setting out also the exact location of its proposed poles, wires, conduits, and other structures, and by stating further specifically the character of the poles and wires to be erected and the conduits and other structures proposed to be put upon or under the streets, etc.
    This motion, and likewise a motion asking that the cause be consolidated with actions by three other companies then pending in the probate court for like relief, being overruled, the defendant answered and admitted that the plaintiff presented to the- council the ordinance set forth in the petition and asked council for the consideration and passage thereof. Admitting that the council adopted the report of the committee referred to, and refused to pass the ordinance, the answer further averred that at the time the ordinance was so presented three other companies, to-wit: The Cincinnati Telephone Company, The Interstate Telephone Company, and The Fitzsimmons Telephone Manufacturing Company, presented to council for passage ordinances fixing the mode of like use of the streets for each, which were all referred to the committee and in pursuance of its report, council refused to pass any of said ordinances, and thereupon plaintiff and each of the three other companies named filed applications in the probate court asking said court to fix the mode of use of the streets, etc., for telephone purposes, all of which actions are still pending. The answer further alleged that “all the streets in the City of Cincinnati, in the business portion thereof, and the majority of said streets in the residence portion and the outlying districts, have been permanently improved, either with granite, asphalt, brick, bowlder or macadam; that in the various streets and highways of said City there is now an underground network of telephone, telegraph, electric light conduits, gas, sewer and water pipes, with the various manholes and fire cisterns used in connection therewith ; that at the intersection of the principal streets such conduits, pipes, manholes and other structures now occupy so great a proportion of the streets that it is dangerous, if not impossible, to permit a further use of the streets for such purposes; that in said City it is the uniform custom to permit property owners to utilize the space underneath the sidewalk as far as the curb for the purposes of their buildings ; that in the continued growth of said city such space as is not now used for underground purposes will be necessary to be used in the extension of the system of underground purposes by the City and other persons now having a right to use the streets for such purposes.
    ‘ ‘ This defendant further says that The Cincinnati & Suburban Bell Telephone Company, a corporation under the laws of Ohio, now owns and operates a telephone exchange and system of wires for telephone purposes through conduits and upon poles in the streets and highways of the City of Cincinnati, under an agreement with said defendant for the maintenance and use of telephone conduits and poles; that said Company occupies all of the business portion and a large part of the residence portion with underground conduits, to-wit, all that portion between Freeman and Eggleston avenue, and the Ohio river and McMicken avenue, together with many other thoroughfares leading in the suburbs of tbe City, and that with these facilities and pole lines in outlying portions it is able to and it has supplied all the demands made or existing within the City for telephone service; that no further occupancy of the streets or highways is at all necessary for the purpose of such service, and that further occupancy for the same would incommode the public in the use of such streets and highways, and would cause additional expense to the residents and business concerns of the City; and if the plaintiff were permitted to occupy and should occupy the streets and highways of the City for telephone purposes, and much more if the other applicants aforesaid or any future applicants were permitted so to do, and should occupy said streets and highways, such occupancy would, in operation and effect, divert the said streets and highways, especially in the business portions of the City, from their original and legitimate purposes and uses, and prevent the further growth and extension of the uses to which the said City of Cincinnati ought to and will be compelled to apply them; and that under these circumstances and facts "it was impracticable, as in substance and effect-stated in the report above set out, for the city to formulate the terms of or to enter into an agreement with the plaintiff, of the other applicants above mentioned’, for the occupancy of its streets and highways for further telephone use and service, and that in consequence it did not unreasonably refuse to adopt the ordinance which plaintiff presented and sought to have passed either as the ordinance was written or as it could reasonably be amended. By reason thereof, said Cincinnati & Suburban Bell Telephone Company claims an interest in the streets and highways of said City superior to any right which plaintiff may acquire.
    “This defendant denies all other allegations in plaintiff’s petition not herein expressly admitted.
    “Wherefore this defendant prays that said-The Cincinnati Telephone Company, The Interstate Telephone Company, The Fitzsimmons Telephone Manufacturing Company and The Cincinnati & Suburban Bell Telephone Company he made parties herein, and he required to set up their several claims to rights in the streets- of the City of Cincinnati, and for all other and proper relief.”
    The reply admitted that the application of the three other companies named in the answer, accompanied by ordinances similar to that of plaintiff, were referred by council to the committee along with that of plaintiff; that the committee made the report alleged, and that council refused to pass any of the ordinances so presented, and denied all the other allegations of the answer.
    Upon trial the probate court found for the plaintiff ; further finding in substance that it was a corporation organized under the laws of the state for the purpose of building, owning, maintaining and operating a system of telephone and telegraph lines and conducting a telephone and telegraph business ' in the City of Cincinnati and elsewhere, and is authorized to bring this proceeding; that the plaintiff applied to the city, through its council^ for the purpose of coming to an agreement as to the mode of use- of the streets, alleys, public ways, and other public property of, and within the limits of the City, - but the City, on January 25, 1904, refused to agree with the plaintiff upon the mode of use of such streets, etc., for the purpose stated upon any terms, and that it is necessary for plaintiff to nse said streets, alleys and public ways. The court, then proceeding to direct a mode of such use, adjudged and decreed that upon certain designated streets, and in such other thickly settled portions of. the City as plaintiff may from time to time select, all its wires shall be placed in underground conduits or subways, and no poles should be erected in said district or other portions of the city where the wires are placed in conduits, except for distribution of wires or cables from conduits to buildings, and all such poles shall be, as far as possible, located in alleys; and further provided for the erection of the poles and wires therein in other portions of the City, with authority to the plaintiff to construct all conduits, etc., etc., in. such manner as to make its system a complete working system of telephonic communication. Then follow specific directions with respect to the character of the poles, wires, etc., the manner in which they are to be placed and maintained, for the method of procedure generally, and for change of the poles, wires, etc., as the future necessities of the streets and ways may require. The order further provides that before entering upon the construction of the contemplated work the plaintiff should file with the board of public service plans showing the location and character of the work designed to be constructed, and with power to the board to change and adjust the location and character of the work to meet conditions existing at particular localities at the time.
    Error being prosecuted by the defendant to the common pleas the judgment of the probate court was reversed. The Company then prosecuted error to the circuit court, by which court the judgment of the common pleas was affirmed. To reverse these latter judgments the Company brings error to this court.
    
      Mr. C. B. Matthews, attorney for plaintiff in error,
    cited and commented upon the following authorities:
    
      Zanesville v. Telephone Co., 64 Ohio St., 67; Macklin v. Telephone Co., 24 O. C. C., 446; 1 C. C. R. (N. S.), 373; People v. Kerr, 27 N. Y., 188; Railroad Co. v. Savannah, 45 Ga., 602; Lewis on Eminent Domain, sec. 391-255; School Dist. v. Dorton, 125 Mo., 439; Cable Co. v. Mayor, 104 N. Y., 1; Railway v. Sullivant, 5 Ohio St., 276; Atkinson v. Railroad Co., 15 Ohio St., 21; Chamberlain v. Railroad Co., 15 Ohio St., 225; Glass Co. v. Carnegie, 204 Pa. St., 459; Railroad Co. v. Stroud, 132 N. C., 413; Zanesville v. Gas Light Co., 47 Ohio St., 1; Railroad Co. v. Miller, 56 Ind., 88; Niemeyer v. Railroad Co., 43 Ark., 111, 120; Clark & Marshall on Corporations, secs. 73, 74, 95, 509, 510, 510b., 511; Railroad v. Smith, 15 Ohio St., 328; State v. Relief Assn., 29 Ohio St., 399; State v. Taylor, 25 Ohio St., 279; Powers v. Railroad Co., 33 Ohio St., 432; Mining Co. v. Ruble, 8 Ore., 284; Hammond v. Straus, 53 Md., 1; Hotel v. Dickinson, 6 Gray (Mass.), 586; Manufacturing Co. v. Vanner, 12 R. I., 491; Mokelumme, Hill Co. v. Woodbury, 14 Cal., 424; Utley v. Tool Co., 11 Gray, 139; Amendment of April, 1880 (77 O. L., 266); State v. Insurance Co., 49 Ohio St., 440; Insurance Co. v. Wilson, 70 Ohio St., 354; Hessler v. Punch & Shear Co., 61 Ohio St., 625; Ex parte Littledale, L. R. 6 Cr., 257; Thos. Haven Co. v. Rose, 4 Man. & G., 552; Henry v. Railroad Co., 17 Ohio, 191; 1 S. & C., p. 276, see. 6; Navigation Co. v. Eagle, 29 Ohio St., 238; Peter v. Manufacturing Co., 56 Ohio St., 181; Railroad Co. v. Commissioners, 36 Kan., 121; Mitchell v. Railroad 
      
      Co., 17 Ga., 574; Elevator Co. v. Towboat Co., 152 Mass., 428; McDermott v. Donegan, 44 Mo., 85; Commonwealth v. Railroad Co., 3 Gr., 6a, 200; Bank v. Investment Co., 74 Tex., 421; Blair v. Rutherford, 31 Tex., 465; Jones v. Davis, 35 Ohio St., 474; Hartt v. Harvey, 32 Barb., 55; Commissioners v. Woodward, 4 Phil., 124; In re Chenango Co. Mut. Ins. Co., 19 Wend., 635; Wiltz v. Peters, 4 La. An., 339; In re Leslie, 58 N. J. Law, 609; Plank Road Co. v. Thatcher, 11 N. Y., 102; State v. Lehre, 7 Rich. (S. C.), 234; Society of Gal. v. Smithers, 12 Ohio St., 248; Hullman v. Honcomp, 5 Ohio St., 237; Ehrman v. Insurance Co., 35 Ohio St., 324; Ryder v. Railway Co., 13 Ill., 516; Grayble v. Y. & G. Turn. Co., 10 Serg. & R., 269; Beach v. Smith, 28 Barb., 254; Beach v. Smith, 30 N. Y., 116; Baldwin on American Railroad Law, 64; Nellis on Street Surface Railroads, 252; Telephone Co. v. Turnpike & Railroad Co., 135 N, Y., 403; Rochester v. Telephone Co., 52 N. Y. App. Div., 6; Teachout v. Railway Co., 75 Ia., 732; Railway Co. v. Mills, 85 Mich., 634; Taggart v. Railway Co., 16 R. I., 668; Fulton v. Transfer Co., 85 Ky., 640; Railway Co. v. Grundy, 51 N. J. Eq., 231; Dand v. Kingscote, 6 M. & W., 173, 197; Bishop v. Worth, 11 M. & W., 417, 426; Bridge Proprs. v. Hoboken Co., 1 Wall., 116; Corporation Act of 1853 (N. Y.), chap. 471; Keasbey on Electric Wires, p. 85, sec. 67; Harrison v. Cable Co., 9 Dec. Re., 805; 17 W. L. B., 265; Attorney General v. Telegraph Co., L. R. 6, Q. B. Div., 244; Cincinnati v. Cameron, 33 Ohio St., 336; Telegraph Co. v. Benton Harbor, 121 Mich., 512; Electro Mag. & Dev. Co. v. Van Auken, 9 Col., 204; Gas Co. v. Wheeling, 8 W. Va., 320; Attorney General v. Plank Road Co., 2 Mich., 139; Thompson v. Bulson, 78 Ill., 277; Nichols v. Wells, 2 
      Ky., 255; Carpenter v. State, 12 Ohio St., 457; Monahan v. Telephone Co., 9 Dec., 532; 7 N. P., 95; Tulare Irrigation Dist. v. Shepard, 185 U. S., 1; Wells Co. v. Manufacturing Co., U. S. S. C., May 8, 1905; Minor v. Bank, 1 Pet., 47; Telephone Co. v. St. Joseph, 121 Mich., 502; In re Janvrin, 174 Mass., 514; Telegraph Co. v. Myatt, 98 Fed., 335; State v. Johnson, 61 Kan., 803 ; Express Cases, 117 U. S., 1; Railway Co. v. Telegraph Assn., 48 Ohio St., 390; Telephone Co. v. Chagrin Falls, 14 Dec., 449; O. L. R., March 28, 1904; Prentiss v. Telephone Co., 1 Dec., 97; 32 W. L. B., 13; State v. Murphy, 134 Mo., 548; Edison Co. v. Cincinnati, Goeb., 304; State v. Commissioners, 54 Ohio St., 333; Morawetz on Corporations, secs. 2, 27, 33, 638, 639, 640, 654, 672, 3168; Clement v. Cincinnati, 9 Dec, Re., 688; 16 W. L. B., 355; Cincinnati v. Railway Co., 4 Dec., 507; 30 W. L. B., 321; Simmons v. Toledo, 3 Circ. Dec., 64; 5 C. C. R., 124; Pelton v. Railway Co., 10 Dec. Re., 545; 22 W. L. B., 67; Lancy v. Boston, 71 N. E. Rep., 302; People v. Canal Co., 52 N. Y. S., 850; Bank v. Greenburgh, 173 N. Y., 215; Young v. Salt Lake City, 67 Pac. Rep., 1066; Eskridge v. Emporia, 65 Pac. Rep., 694; McCrea v. Roberts, 43 Atl. Rep., 39; Moore v. Vance, 1 Ohio, 1; Brown v. Farran, 3 Ohio, 140; Chestnut v. Shane, 16 Ohio, 599; Craig v. Fox, 16 Ohio, 563; Dutoit v. Doyle, 16 Ohio St., 400; Railway Co. v. Lynde, 55 Ohio St., 23; State v. Akins, 10 Circ. Dec., 121; 18 C. C. R., 349; Campbell v. Campbell, 2 Circ. Dec., 256; 3 C. C. R., 449; secs. 3236, 3238, 3239, 3242, 3243, 3244, 3245, 3266, 3283, 3454, 3455, 3461, 3471, 3588, 3589, 3590, 3591, 3631-25, 3631-35, 3632, 3633, 3634, 3635, 3636, 3641, 3670, 3686, 3687, 3691-1 to -8, 3691-14, 3691-21, 6414 and 6420, Rev. Stat.
    
      
      Mr. Poivel Crosley, also for plaintiff in error,
    submitted a supplemental brief as amicus curiae, citing and commenting upon the following authorities:
    History of Underground Wires: J. J. Fahie on History of Electric Telegraph; Keasbey on Electric Wires, p. 84, sec. 67; Robert Sabine on the History and Progress of the Electric Telegraph; Natural Philosophy; The Electric Telegraph; secs. 3454, 3461 and 3471, Rev. Stat. Construction of Statutes: Moore v. Vance, 1 Ohio, 1; Brown v. Farran, 3 Ohio, 140; Chestnut v. Shane, 16 Ohio, 599; Craig v. Fox, 16 Ohio, 563; Dutoit v. Doyle, 16 Ohio St., 400; Railway Co. v. Lynde, 55 Ohio St., 23; State v. Akins, 10 Circ. Dec., 121; 18 C. C. R., 349; Campbell v. Campbell, 2 Circ. Dec., 256; 3 C. C. R., 449; United States v. Healey, 160 U. S., 136; Detroit City Ry. v. Mills, 85 Mich., 634; Goshorn v. Purcell, 11 Ohio St., 641; Morris v. Williams, 39 Ohio St., 554; Corwin v. Benham, 2 Ohio St., 36; Stetson v. City Bank, 2 Ohio St., 167; Ives v. McNicoll, 59 Ohio St., 402; Railway Co. v. Telegraph Assn., 48 Ohio St., 390; Electric Co. v. Cincinnati, Goeb., 304; Telephone Co. v. Chagrin Falls, 14 Dec., 449; 1 N. P. (N. S.), 534; State v. McGregory, 44 Ohio St., 628; art. 12, sec. 1, Const.; Commonwealth v. Warwick, 185 Pa. St., 623.
    
      Mr. Charles J. Hunt, city solicitor; Mr. J. W. Warrington, Mr. H. D. Peck and Mr. Miller Outcalt, attorneys for defendant in error,
    cited and commented upon the following authorities:
    1 S. & C., 299; Zanesville v. Telegraph & Tel. Co., 64 Ohio St., 74; Macklin v. Telephone Co., 24 O. C. C., 446; 1 C. C. R. (N. S.), 373; sec. 47, General Corporation Act of May 1, 1852 (S. & C., 271); Brower v. Hunt, 18 Ohio St., 311; Commonwealth v. War
      
      wick, 185 Pa. St., 623; Light & Power Co. v. Gas Co., 69 Ohio St., 259; Electric Light Co. v. Electric Co.; 3 Circ. Dec., 168; 5 C. C. R., 344; 29 W. L. B., 72; State ex rel. v. Board of Public Works, 36 Ohio St., 409; State v. Railway Co., 37 Ohio St., 176; State ex rel. v. Chase, 5 Ohio St., 529; Currier v. Railroad Co., 11 Ohio St., 231; Coal Co. v. Wigton, 19 Ohio St., 566; Platt v. Pennsylvania Co., 43 Ohio St., 244; Telephone Co. v. Turnpike & Railroad Co., 135 N. Y., 393; State ex rel. v. McGregor, 44 Ohio St., 628; Cincinnati v. Holmes, Admr., 56 Ohio St., 104; Davis v. Davis, 11 Ohio St., 386; Powers v. Railroad Co., 33 Ohio St., 429; Atlantic Railroad v. Sullivant, 5 Ohio St., 276; Atkinson v. Marietta Railroad, 15 Ohio St., 21; Railway Co. v. Daniels, 16 Ohio St., 390; Markley v. Vil. of Mineral City, 58 Ohio St., 430; Pelton v. Railroad Co., 10 Dec. Re., 545; 22 W. L. B., 67; Railway Co. v. Telegraph Assn., 48 Ohio St., 390; State ex rel. v. Murphy, 134 Mo., 548; State v. Insurance Co., 49 Ohio St., 440; Powers v. Railway Co., 33 Ohio St., 429; Zanesville v. Telephone & Tel. Co., 63 Ohio St., 442; State ex rel. v. Telephone Co., 72 Ohio St., 60; 3 O. L. R., 27; Dash v. Van Kleeck, 7 Johns., 477; 1 Bl. Com., 269; Spirit of Laws, bk. 11, chap. 6; Kilbourn v. Thompson, 103 U. S., 191; Moynihan’s Appeal, 75 Conn., 358; Wakeman’s Appeal, 74 Conn., 313; Street Railway Co.’s Appeal, 69 Conn., 576; Malmo’s Appeal, 72 Conn., 1; Bradley v. New Haven, 73 Conn., 646; Telephone Co. v. St. Joseph, 121 Mich., 502; Telephone Co. v. Benton Harbor, 121 Mich., 512; Toledo v. Telegraph Co., 12 O. F. D., 704; 107 Fed., 10; Telegraph Co. v. Toledo, 121 Fed., 734; Reagan v. Loan & Trust Co., 154 U. S., 362; Commerce Commission v. Railway Co., 10 O. F. D., 556; 167 U. S., 479; Telegraph Co. v. Myatt, 98 Fed., 335; Telephone Co. v. State, 55 Neb., 627; Shephard v. Wheeling, 30 W. Va., 479; State v. Young, 29 Minn., 474; State v. Field, 17 Mo., 529; State v. Railway, 43 N. J. Law, 339; Express Cases, 117 U. S., 1; 18 Harv. Law Rev. (June, 1905), 572; State v. Harmon, 31 Ohio St., 250; art. 4, sec. 1, Const.; Cooper’s Case, 22 N. Y., 84; Pennsylvania v. Bridge Co., 13 How., 518; In re Railway Co. v. Bridge Co., 7 Fed., 653; Cincinnati v. Taft, 63 Ohio St., 141; Shoemaker v. Cincinnati, 68 Ohio St., 603; act of March 31, 1865 (S. & S.), 153; Ash v. Ash, 9 Ohio St., 383; Tyler v. Winslow, 15 Ohio St., 364; Hamilton v. Steamboat Hamilton, 16 Ohio St., 428; Stannard v. Case, 40 Ohio St., 211; Collins v. Millen, 57 Ohio St., 295; Conger v. Barker, 11 Ohio St., 1; Boley v. Ohio Trust Co., 12 Ohio St., 139; Dutoit v. Doyle, 16 Ohio St., 400; secs. 1536-131, 1536-184, 3243, 3244, 3245, 3454 to 3471, inclusive, Rev. Stat.
   Spear, J.

Séveral questions are presented by the record. 1. Was The Queen City Telephone Company so organized at the time it made application to the City, and later, as to give it a standing calling for action by the council and afterward by the probate court? 2. Even though the Company were legally organized, did the petition filed in the probate court itself state a case warranting affirmative action in favor of the Company by that court? 3. If the petition did state a case warranting such affirmative action, had that court power to grant a right to such company to place its wires and apparatus in conduits under ground?

1. It was the judgment of the circuit court that the Company- had not been so legally organized as to give it a standing to maintain its action. In this conclusion we concur. As held in Zanesville v. Tel. Co., 64 Ohio St., 67, the proceeding is practically for an appropriation; that is, it partakes of the character of an exercise of the right of eminent domain. In Powers v. Ry. Co., 33 Ohio St., 429, it is held that it is essential to a judgment of condemnation in an appropriation proceeding that the company should prove its corporate existence, and among other things show that it has been fully organized by the election of directors. Proof of the existence of the corporation and of its right to make the appropriation is also now required by section 6420, Revised Statutes, and the determination by the court of those questions favorable to the company is made jurisdictional. Sections 3243, 3244, and 3245, Revised Statutes, taken together, require that an installment of ten per cent on each share of stock shall be payable at the time of making the subscription; that as soon as ten per cent of the capital stock is subscribed notice for the election of directors may be given; that no person shall vote for directors for any share on which any installment is due and unpaid, and the votes of a majority of the number of shares shall be necessary for a choice. Tested by these requirements the record shows that there had been no legal election of directors, and that the corporation had not been organized in such manner as to entitle it to a decree under section 3461. As a predicate to any action by the probate court it must have been made to appear that the plaintiff and the municipal authorities could not agree, and since the plaintiff could act only through its legally constituted officers, the absence of such officers was fatal to its claim of a failure to agree.

It is urged that the pleadings do not raise the issue as to the organization of the corporation. We agree also with the conclusion of the circuit court that the issue is sufficiently made, the rule being that in such a case as this a general denial puts the burden on.the company to show that it has complied with the statute.

The foregoing disposes of the case, but inasmuch as the Telephone Company might, in a new uroceeding, correct this error, and especially as the other cases referred to in the statement are still pending in the probate court, we proceed to consider briefly other questions.

2. As to the petition. It was the judgment of the circuit court that the petition did not present to the probate court defined issues to invite judicial determination. In this conclusion we concur. There is no statutory warrant for the claim that the probate court is free to make any order or decree that may be demanded. The power of the probate court is judicial power, as held in the Zanesville case, and in order to invoke the exercise of that power defined issues must be presented, issues showing specific questions of difference between the parties, and in the absence of such showing it seems clear that the probate court has no power in the premises other than to dismiss the petition. The petition in this case does not show that any defined plan for occupancy of streets had been presented to council for its acceptance or refusal, nor that any such defined plan was even presented to the probate court. The defendant was entitled to have the issue made as to each street, and as to the question of incommoding the public by the proposed use, and if it appeared that for any cause the proposed use would incommode the public in the use of such street as a street then the demand should be refused on that ground. In such situation, also, it was manifestly the exercise of legislative, as contrasted with judicial power, for the court to go forward and make a general order giving the right to the use of the streets generally, and prescribing the mode of use not only for the present but directions for change of poles, wires, etc., as the future necessities of the streets and ways may require, and requiring the plaintiff before entering upon the construction of the work to file with the board of public service plans showing the location and character of the work, and authorizing the board to change the location, etc., thus delegating to an administrative body power to make necessary specifications as to mode of use, location, etc. To hold and direct a mode of use of a street at the present would be, upon issues joined, judicial; to direct its use under changed conditions in the future would be legislative. It was also error for the court to overrule the motion of defendant to make the petition more definite and certain.

3. In any event had the probate court power to grant a right to the Company to place its wires and apparatus in conduits under ground? It is believed that this point is satisfactorily answered by reference to the sections of the Revised Statutes relating to. the subject of the control of streets and the construction of conduits thereunder. Section 3454, enacted in 1852, is the foundation of the right of telephone companies to use the public roads of the state. This right is there given to telegraph companies, but by section 3471, this section, as also the entire chapter, is' made to apply to telephone companies also, but telephone companies are specifically made subject to all the restrictions imposed by the chapter upon telegraph companies. Then by section 3461, enacted in 1865, the manner of acquiring the right to use streets of a municipality is provided for. Where the lands sought to be appropriated to the use of a company are subject to the easement of a street the mode of use shall be such as shall be agreed upon between the municipal authorities and the company, and if they cannot agree then the probate court shall direct in what mode the line shall be constructed along such street so as not to incommode the public in the use of the street. But this use, as authorized by section 3454, is simply “by the erection of the necessary fixtures, including posts, piers and abutments necessary for the wires. ’ ’ Applying the rule of expressio unius exclusio alterius, this language by inference excludes the idea of conduits in subways. Looking for a specific provision on the subject, we find that the first which in terms covers the subject of conduits is section 3471-1, enacted in 1891. The title of the act is “To authorize telephone companies to place and maintain their wires under ground, when consent is had of cities where the same are situated,” and the body of the act provides that any company owning and. operating a telephone' exchange in any city “may construct and maintain underground wires and pipes or conduits and other fixtures for containing, protecting and operating such wires in the streets and public ways of said city, when the consent of such city has been obtained therefor,” etc. By the following section this consent is to be given by the board of street commissioners, of public improvements, of public works, and administration, or by the council in cities where no such board exists, and these are the only provisions of statute to which attention has been called which treat of the subject of conduits. They are special provisions enacted long after the general provisions of section 3461, and by the application of familiar rules of construction, must be regarded as exceptions to the general provisions of previous statutes. The consent of the city is thus made an essential condition.

It is of course conceded as now well settled that the general power to occupy the streets of a municipality by a'telephone company is derived from the state, as held in Zanesville v. Tel. Co., supra, and Farmer v. Tel. Co., 72 Ohio St., 526. (Referring to this last case, it may not be amiss here to remark that oh page 532 the types make the writer say that the probate court is a substitute in all respects for the municipal authorities. This was not intended. The words “as to rates,” which should precede the above statement have dropped out. Without them the statement is too broad.) But, taking the sections of the statute as a whole and considering the conditions imposed on the exercise of such right, it is not to be inferred that the municipal authorities are stripped of all power to finally determine any matter relating to the general subject. It will be remembered that by section 2640 those authorities are given the control of the streets and are required to keep them open, in repair, and free from nuisance. It is to be noted, also, that by no statute is power given any tribunal to authorize permanent structures upon or in, or the use of any street, which will incommode the public, the dominant purpose being to facilitate public travel and transportation. Railway Co. v. Tel. Assn., 48 Ohio St., 390; L. S. & M. S. Ry. Co. v. Elyria, 69 Ohio St., 414. It seems, therefore, clear that there is no power in the prohate court to authorize or direct the construction of conduits in subways under the streets of a city in the absence of consent by the municipal authorities.

The subject is a broad one, but we are not inclined to add unduly to the already copious literature by extended discussion. The case will be found fully and ably reported by the common pleas, opinion by Littleford, J., 2 O. N. P. R., N. S., 349, and by the circuit court, opinion by Swing, J., 5 O. C. C. R., N. S., 411.

The judgments of the circuit and common pleas courts will be affirmed and the cause remanded to the probate court with direction to dismiss the petition and to carry into effect the judgment of this court as to costs.

Judgment affirmed.

Davis, C. J., Shauck, Price and Crew, JJ., concur.  