
    The City of Zanesville v. The Zanesville Telephone & Telegraph Co.
    
      Powers of government — Co-ordinate branches essential feature Probate courts belong to judicial department — Not legislative or administrative — Section 8J/S1, Revised Statutes— Requiring probate court to direct mode of telephone companies in cities — Constitutional law.
    
    1. The distribution of the powers of government into three coordinate branches, executive, legislative and judicial, is an essential feature of our system of constitutional government; and prohibits the confusion of these powers by conferring upon one branch powers that belong to another, un■less necessarily incidental to the powers conferred by the constitution.
    2. The probate courts of the several counties of the state be long to its judicial department and can not be authorized to exercise powers that are legislative or administrative in character, except as the same may be incident to their judicial powers.
    
      3. Section 3461, Revised Statutes, requiring probate courts to direct the mode in which a telegraph or telephone company-may use the streets and alleys of a city or village, when the municipal authorities and the company are unable to agree, is legislative, and not judicial, in character, and is therefore unconstitutional.
    (Decided October 16, 1900.)
    Error to the Circuit Court of Muskingum county.
    
      Charles G. Griffiths, city solicitor, and Dwrbcm & McDermott, for plaintiff in error.
    First. Did the legislature intend by section 3461, Rev. Stat., to take away from the municipalities, the control of their streets, so far as their use by telegraph and telephone companies is concerned, and give that control to the probate court?
    The intention of the legislature will be gathered from all the sections of the statutes relating to this subject, together with a due reference to what it was proposed to accomplish by the legislation.
    Our contention is that the legislature had in mind the mere passing through a city by a telegraph or telephone company, and did not have in mind the occupation by a telephone or telegraph company of all the streets and alleys of a city. The telephone company, in this case, seeks to have the probate court fix the mode in which it shall use all the streets, alleys, and public ways of the city of Zanesville, and it claims the right to have the court do that, because it has failed to agree with the city as to how it shall use the streets; or, in other words, it has refused to use the streets in the way in which the municipal authorities think would best subserve the public interests.
    The municipality is charged by law with the duty ■of keeping the streets in repair and free from nuisanee, and it is liable to one injured by reason of its: failure so to do. Therefore, is it not unreasonable to. suppose the legislature intended to take the control of the streets of a city from the municipality and give' it over, to any extent whatever, to another department or branch of the state government?
    In other words, if the legislature had intended that a telegraph or telephone company, failing to agree-with the municipality on the way in which it should occupy the streets, should have the right to apply to. the probate court and secure the privilege, it would have provided by statute, that a telegraph or telephone company might use the streets, alleys and public ways of any city upon such terms as it and the-municipal authorities might agree, and in case they failed to agree, upon such terms as the probate court, might fix, in a proceeding instituted for that purpose. The legislature not having so spoken, but having used the language of section 3461, that statute, will have-to be construed so as to give effect to all parts of the-section, and when this is done, we submit that it cannot be held to mean one sweep-net application for the-right to use all the streets and alleys of a city. Suburban L. & Power Co. v. Boston, 26 N. E. Rep., 447 Keasby on Electric Wires, p. 38.
    Second. If the legislature, by section '3461, Rev. Stat., intended what the defendant in error contends, is the meaning of that section, is it not unconstitutional, because, to the extent of the use of the streets-by a telegraph and telephone company, it deprives the-inhabitants of local self-government. State v. County Commissioners, 54 Ohio St., 333.
    Section 3461, Rev. Stat., is unconstitutional because it seeks to impose on the judiciary of the state, duties which are clearly legislative.
    
      The decision of this question depends upon the provisions of the constitution of Ohio, and the character of the duties sought to be imposed upon the probate court by section 3461. In passing, we desire to say that, the proceeding contemplated by section 3461 is not an appropriation or condemnation proceeding. That is provided for by other sections of the statutes, and in such a proceeding, the right to and in the property of another is secured; but by the proceeding in this case, simply the mode of use is to be fixed by the court. Article 1, section 2, of the constitution; Article 3, section 1; Article 4, section 1; Section 8,-6 Am. & Eng. Ency. Law, 2nd ed., p. 1006.
    That the powers of one department shall not be exercised or conferred upon either of the others, is universally held to be not only within the spirit, but substantially within the letter of the constitution. State v. Baughman, 38 Ohio St., 455; State ex rel. v. Peters, 43 Ohio St., 629.
    There is no positive and specific prohibition in the constitution of Ohio against conferring on any one branch of the government, the duty of another and coordinate branch. It is well settled, however, that the mere distribution of powers between the three departments is of itself such prohibition. Kilbourn v. Thompson, 103 U. S., 168; Cooley on Constitutional Limitations, p. 250; Appeal Norwalk St. Ry. Co., 37 Atlantic, 1085; Western Union Tel. Co. v. Myatt, 98 Fed. Rep., 335.
    The general rule, that the legislature cannot delegate its powers, and certainly not to another branch or department of the state government, will not be seriously controverted. We have, in Ohio, numerous decisions recognizing the rule that, one department of the state government must not encroach upon the functions and within the sphere of one of the other departments. State ex rel. v. Peters, 43 Ohio St., 629; State ex rel. v. Hawkins, 44 Ohio St., 98; DeCamp v. Archibald, 50 Ohio St., 618; Cooley on Constitutional Limitations, p. 250; Fleming v. Trowsdale, 85 Fed., 189; Cooley on Constitutional Limitations, p. 110; Dash v. Van Cleet, 7 Johnson, 498; Todd’s Case, 13 Howard, 51.
    Now in the case at bar, it is sought to compel the probate court to fix the mode of use by the telephone company, of all the streets, alleys, and public places of the city of Zanesville. In other words, the probate court is to lay down police regulations, for the government of the conduct of the telephone company in the streets, for all future time. If this duty can be imposed upon the probate court, upon mere failure of' the council to agree, then it could be imposed upon the probate court in the first instance, and if it could be thus imposed as to telephone and telegraph companies, it could be imposed as to street railroads,, steam railroads, and all other companies or corporations using or seeking to use the streets of a municipality; and then we have the spectacle of the probate court, practically laying down regulations governing the use of the public highways within the municipality by public corporations. It seems clear that this, would be a legislative act. Telegraph Co. v. New York, 38 Fed., 552; People v. Squire, 107 N. Y., 593;, Keasby on Electric Wires, p. 7; Hoboken Co. v. Hoboken, 35 N. J. L., 208; 27 Indiana, p. 394.
    On the proposition that prescribing the mode and manner in which public corporations may occupy the streets of a municipality is the exercise of a legislative power and in the nature' of a police regulation. Dillon on Municipal Corporations, Secs. 656, 698;, Tiedeman Mun. Cor., Secs. 289, 297; Western Union Tel. Co. v. Philadelphia, 12 Atlantic, 144.
    The case of the Norwalk Street Railway Co., 37 Atlantic, p. 1080, is very like the case at bar.
    
      S. M. Winn and A. J. Andrews, for defendant in error.
    We contend that this judgment of the probate court was clearly erroneous and consequently that the judgment of the common pleas court affirming was also clearly erroneous. Section 3461 has been on the statute books unchanged for more than thirty years, the benefits of its provisions claimed and enforced without challenge throughout the state. After this long-lapse of time the probate court of this county took it upon itself to hold this law unconstitutional. After this long acquiescence we say that it is too late for an inferior court to entertain this question. State ex rel. v. Bader, 7 Circ. Dec., 1, 4, 13 C. C., 15.
    The Supreme Court of the United States in the case of Stuart v. Laird, 5 U. S. (1 Cranch. ), 299, at page 309, speaking of a constitutional question raised in the case, say: “To this objection, which is of recent date, it is sufficient to observe that practice and acquiescence under it for a period of several years, affords an irresistible answer and has, indeed, fixed the construction..” Prigg v. Commonwealth, 41 U. S. (16 Pet.), 621; Sec. 1, Art. 2, Ohio constitution; Baker v. Cincinnati, 11 Ohio St., 534; Bloom v. Xenia, 32 Ohio St., 461; State ex rel. v. Evans, 1 Ohio St., 437; Cass v. Dillon, 2 Ohio St., 607; Lehman v. McBride, 15 Ohio St., 573; Cleveland v. Wick, 18 Ohio St., 303; State v. Frame, 39 Ohio St., 399; Ireland v. Palestine, 19 Ohio St., 369; Western Union Tel. Co. v. Mayer, 28 Ohio St., 521.
    
      The defendant city is but the creature of the legislature (whose power it is contesting in this case). The legislature has full power to change, modify, restrict or take away entirely any and all powers conferred bn defendant — could even repeal its charter and invest other agents of the state therewith. Can the stream arise above its source? Is the creature greater than its creator? The constitution does not execute itself. Hendershot v. State, 44 Ohio St., 208.
    The constitutionality of an act depends upon its effect, not on its form. State v. Hipp, 38 Ohio St., 199; Hixson v. Burson, 54 Ohio St., 470.
    But it is said by counsel for defendant that inasmuch as the state government is divided into three co-ordinate departments — legislative, executive and judicial — that this law is unconstitutional because it pertains to the judiciary and the powers named in said section are legislative and not judicial.
    The control of the streets, alleys, highways, etc., is by section 2640 confided by the legislature to the •council of the municipality, but that council is by the same power (the legislative) by the express provisions ■of section 3461, etc., so limited and modified as to put said streets and public highways in certain contingencies named under the control of the probate judge, and to that extent take it away from the council. A law may be defined to be a controlling regulation — a rule of being or conduct, established by an authority able to enforce its will — the mode or order according to Which an agent or power acts.
    We affirm the powers Vested in the probate court by section 3461 are within the province of the judiciary. They are in fact strictly judicial. State v. Harmon. 31 Ohio St., 250; State ex rel. v. Hawkins, 44 Ohio St., 98; Musser v. Adair, 55 Ohio St., 466; Ohio ex rel. v. Covington, 29 Ohio St., 102; State ex rel. v. Guilbert, 56 Ohio St., 575; State v. Kendle, 52 Ohio St., 346; State ex rel. v. Peters, 43 Ohio St., 629; Doan v. Biteley, 49 Ohio St., 596; McLaughlin v. McLaughlin, 4 Ohio St., 511; State ex rel. v. Telephone Co., 36 Ohio St., 296; State ex rel. v. Railroad Co., 36 Ohio St., 434.
    That the legislature intended to, and understood it not only had the power, but had in the contingency named in section 3461, divested the city council of exclusive control of the streets and public ways and grounds of the city is perfectly apparent from the express provisions of section 3471a (92 O. L., 204-5) by which electric light companies are expressly made subject to municipal control alone.
    The legislature has given telegraph and telephone companies the right to use the streets and highways for certain purposes (it is indeed a public necessity essential to the transmission of intelligence) and for those purposes they have just as good right to the use thereof as any pedestrian.
    We claim that the duties enjoined upon the probate court under favor of section 3461 are within the purview of all the decisions of our Supreme Court clearly judicial when so enjoined by the legislature, and are sure that no case can be found in this state to the contrary. Here are two public corporations, both receiving their charters from the state of Ohio.
   Minshall, J.

The question presented in this case concerns the constitutional validity of section 3461, Revised Statutes. The section reads as follows:

“When any lands authorized to be appropriated to the use of a company are subject to the easement of a street, alley, public way, or other public use, within the limits of any city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they cannot agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley, or public way, so as not to incommode the public in the use of the same; but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness.”

The section as enacted related to telegraph companies, but was subsequently made applicable to telephone companies.

Under favor of the section just quoted, the Zanesville Telephone and Telegraph Company commenced a proceeding in the probate court of the county, averring its corporate capacity and right to use the streets and alleys of the city in locating its line therein, and averring that the city had unreasonably failed to agree with it in regard to the use of its streets and alleys, and asking the court to take action under this section and to fix the mode of use of all streets, etc., to be appropriated to the use of the company, subject to its easement therein. The matter was heard; but the court finally dismissed the petition on the ground that the power sought to be conferred on the court by this section- is not judicial. The matter was taken on error to the court of common pleas and the judgment was affirmed. It was then taken on error to the circuit court, where the judgment of the common pleas was reversed and the cause remanded to the probate court for further proceedings. Error is prosecuted here to reverse the judgment of the latter court.

If the power conferred on the probate court by section 3461 is legislative or administrative, and not judicial, in character, it'cannot be maintained that the section is a valid one. The distribution of the powers of government, legislative, executive and judicial, among three co-ordinate branches, separate and independent of each other, is a fundamental feature, of our system of constitutional government. In the preservation of these distinctions is seen, by many able jurists, the preservation of all the rights, civil and political, of the individual, secured by our free form of government; and it is held that any encroachment by one upon the other, is a step in the direction of arbitrary power. In Dash v. Van Kleeck, 7 John., 477, it is said by Kent, C. J.: “It is a well settled axiom that the union of these two powers (the legislative and judicial) is tyranny. Theorists and practical statesmen concur in this opinion.” See further, 1 Bl. Comm., 269; Spirit of Laws, bk. 11, c. 6; Kilbourn v. Thompson, 103 U. S., 191. And the very fact that the powers of government are so distributed by the constitution is regarded as, of itself, a prohibition against the power of one department being conferred on another, though such express language is not found in the instrument. The probate court belongs to the judicial department of our state government, so that the question at once arises, what is the nature of the power conferred by this section on the probate courts of the several counties of the state? Is it judicial power? If not, the section cannot be supported as a valid one.

The power conferred is invoked where any lands authorized to be appropriated to the use of a company are subject to the easement of a street, etc., within the limits of a city or village; and the mode of use cannot be agreed upon by the municipal authorities and the company, or the former unreasonably delays -to enter into an agreement. In such case the probate court, in a proceeding instituted for the purpose, is required to direct in what mode such telegraph (or telephone) line shall be constructed in the streets, etc., of the city. It must be manifest that this section does not confer the right upon a company to use the streets of the city. It recognizes the fact that the streets and alleys belong to the city and are primarily within its control; and provides a mode by which the company may acquire the right to use the same. First, by agreement with the city; and if this cannot be obtained, then the probate court is empowered, in a proceeding commenced by the company, to direct the mode in which the streets maybe used by the company. We fail to perceive that any judicial power is here conferred on the court. It is either legislative or administrative, most probably the former in so far as it prescribes the mode of use; but neither of these powers is judicial in character. It is true that courts do exercise certain administrative powers. They may appoint receivers and master commissioners and some of their other officers; but these powers are only such as are properly incidental to their powers as a court. They have also at times been authorized to make appointments in other departments; and when they act, their appointments have, in some instances, been sustained; but it has never been held that they could be compelled to make such appointments; for the reason that such appointments are not judicial in character. In this case the court is not required to hear and determine a disputed right upon issues joined between the parties and to apply the law to the facts as they are found. This is the essential and distinctive feature of judicial power. We quote in this connection the appropriate language of Judge Cooley: “That which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of future cases falling under its provisions.” Constitutional Limitations, 108. Further on he says: “An-ordinance regulating a street is a legislative1 act beyond the control of the judicial power of the state.” The Supreme Court of Connecticut, in The Norwalk Street Railway Company’s Appeal, 69 Conn., 576, has recently passed on the question presented in this case. A statute of the state gave to a street railway company the right to appeal to the superior court of the state, when the municipal authorities failed for a limited time to exercise their powers'to regulate the location and construction of street railways within their limits. The court held, in an elaborate and well reasoned opinion, that, “The power of regulating the location and operation of street railways, given to the local municipal authorities by a statute of the state, clearly falls without the limits of the judicial department. Nor can the exercise of such power become a judicial, function, merely because a statute of the state gives to the railway company a right of appeal to the superior court or any judge thereof, when the municipal authorities fail to exercise their power within a limited time. Such ‘appeal’ is not a process to invoke judicial power, but is merely an application to tbe court or judge, acting in the place or stead of tbe municipal authorities, to exercise a legislative function.” See also the following cases: Hayburn's Case, 2 Dall., 409; U. S. v. Ferreira, 13 How., 40; 10 Minn., 78.

In the case before us tbe company presented an ordinance embodying a mode of use as it desired it, tbe city presented one on tbe same subject, but differing in its terms from that of tbe company; arid, not being-able to agree, tbe company filed its petition in tbe probate court. Consequently all tbe court could do would be to prescribe an ordinance for tbe city regulating tbe mode in which the company might use its streets. It seems then too clear for argument that tbe power invoked is none other than tbe power, by ordinance, to regulate tbe use of tbe city’s streets and alleys by tbe company. A power primarily in the city, legislative in character, but lost to it and conferred on tbe probate court by its failure to act in a reasonable time.

Tbe judgment of the circuit court will be reversed, and that of tbe common pleas and probate courts will be affirmed, except that tbe judgment for costs in the latter court will be reversed, Norton v. McLeary, 8 Ohio St., 205.

Judgment accordingly.

On rehearing tbe judgment was affirmed. See s. c. 64 Ohio St., 67.  