
    The Hardin-Wyandot Lighting Co. v. The Village of Upper Sandusky.
    
      Public utilities — Electric light and power companies — Occupation and use of streets — Power formerly derived from state — Consent and control now vested in municipalities — Sections 9192 and 9193, General Code — Removal and abandonment by com pany — Municipal consent necessary to return and repossess.
    
    
      1. The act of January 26, 1887 (84 O. L., 7), made applicable to electric light and power companies the provisions of the chapter relating to magnetic telegraph companies, so far as practicable, and while said act remained in force the power of such companies to occupy the streets ■ of a municipality was derived from the state.
    2. The act of April 21, 1896, Sections 9192 and 9193, General Code, subjected electric light and power companies to “municipal control alone” and provides that no such company shall occupy the streets, alleys, etc., of any city, town or village, with its equipment to conduct electricity for lighting, heating or power purposes without the “consent of such municipality.”
    3. When such a company which has occupied the streets and public places of a city or village with its poles, wires and equipment, voluntarily and without the consent of the municipality, removes and dismantles a portion of the same and renders itself wholly unable to furnish any electricity whatever for the purpose of public lighting, it cannot afterward return and repossess itself of those rights and erect another equipment in such streets and public places without the consent of the city or ■ village.
    (No. 14996
    Decided February 15, 1916.)
    
      Error to the Court of Appeals of Wyandot county.
    The village of Upper Sandusky brought suit in the common pleas of Wyandot county against the defendant, an Ohio corporation. In its petition it alleged that on the 4th of March, 1889, the council of the village passed an ordinance granting to The Citizens Electric Light & Power Company, its associates, successors and assigns, a franchise to use the streets, lanes, alleys, avenues and other public thoroughfares of the village i'or the. purpose of erecting, maintaining and operating an electric" light and power plant; that in 1912 defendant purchased the plant and fixtures, and is now operating the same, claiming all the rights and privileges in said franchise which were exercised by the original company; that said ordinance was and is silent as to the period of duration of the franchise, there being no limitation as to the length of time it was to remain in force, nor is there any stipulation as to when it shall terminate.
    It is alleged that the original company, when it built and completed the plant and installed a complete system for lighting the streets, lanes, alleys and other public thoroughfares of the village, did, under and by virtue of a contract, light said public thoroughfares during all the time it was the owner; that shortly after the defendant became the owner of the plant and system, and after the contract in force at the time of the purchase had expired, plaintiff made repeated efforts to make a new contract for the lighting of the thoroughfares, etc., but was unable to do so, for the reason that the prices asked by the defendant were exorbitant and unreasonable; that plaintiff prepared and submitted to the defendant a full, fair and complete schedule of prices which the village was willing to pay for the lighting of the streets, etc., which proposition was rejected by the defendant.
    It is averred that defendant claimed that plaintiff should take the matter up with the public service commission of Ohio if the rates proposed by the defendant were not satisfactory, and that thereupon the said- defendant failed and refused to make any further attempts to arrive at a fair and just settlement of the matters in controversy; that the defendant, within a short time thereafter, without the knowledge or consent of the plaintiff, removed all of its street lights from the streets, avenues and thoroughfares, removed all of its wires, cut down and removed all of the poles used for the support of said wires and completely dismantled its street-lighting system, thus rendering itself unable to furnish any electricity whatever for the purposes of public lighting, and placed itself in such position that it cannot light any of the public places of said village, and has rendered its plant absolutely worthless for that purpose.
    It is further alleged that the defendant has removed from its plant whatever valuable machinery was there at the time it purchased it from the original company, and has replaced the same with other machinery, secondhand in quality, and has by this means lowered the value of its plant and rendered itself less able to supply the commodity it purports to sell.
    ■ Plaintiff says it cannot and does not agree with the defendant as to the terms and conditions of said purported franchise; that by its act in demolishing and removing its street-lighting system it has forfeited every and all rights it may have had thereunder, and that its continuing use of the streets, lanes, alleys, etc., for the purpose of supplying private users for its own profit is a violation of said pretended franchise, both as to the letter and spirit of the same, and that the company has no right whatever to use any of the public ways of the said village for any of the purposes for which it is now using them.
    Plaintiff further says that the said defendant is about to erect along and upon the streets of said village a line of poles for the purpose of stringing additional wires to further advance its private interests ; that it is so preparing to do without the consent of the village and entirely ignoring the rights of the public; that said defendant, having forfeited its pretended franchise, has no right to use any of the public ways of the village.-
    It is alleged that the defendant, by reason of its failure to agree with plaintiff as to the rates to be charged private consumers for electric current, as well as for street lighting, and its removal of its system for the lighting of the public highways of the village, has forfeited any rights it had under the franchise.
    The plaintiff prays that the defendant may be enjoined from erecting said additional poles, that the said franchise may be forfeited and that the defendant be required to remove from the public highways of the village all of its equipment now located therein, and for all proper relief.
    There was attached to the petition a copy of the ordinance granting the franchise.
    In its answer the defendant admits the passage of the ordinance granting the franchise, as stated in the petition, and that it purchased the plant and fixtures of the original grantee and is now operating the same and claiming all of the rights and privileges in the said franchise contained.
    It admits that the ordinance was and is silent as to the period of duration of the franchise; admits that there is no limitation as to the length of time it was to remain in force, nor any stipulation as to when it should terminate; admits that the original company installed a system for lighting the public thoroughfares in the village and did, under contract with the village, light the same during all the time it was the owner of the plant. Defendant denies the allegations of the petition with reference to the making of a new contract for the lighting of the streets and thoroughfares of the village, except as to the submitting of a schedule of prices which the village was willing to pay and that the same was rejected by the defendant. It admits that it shortly thereafter removed all of its street lights from the streets, avenues and thoroughfares, and alleges that the same were in a bad state of repair; that it had repeatedly given notice to the village thereof; that it had made repeated efforts to enter into a contract with the village upon terms and under conditions which would be fair and reasonable and which would warrant defendant in making the necessary expenditures to put the same in proper repair so that it could perform any contract into which it might enter and to afford it fair and reasonable remuneration, but that the village refused to treat with the defendant on any terms of fairness; that prior to the removal of said street-lighting system defendant had furnished street lighting to the village upon an understanding that the same should be paid for at the rate paid under the contract with the predecessor company; that said village refused to pay certain amounts due thereunder, as aforesaid, and arbitrarily deducted certain sums on alleged claim of outage, which claim was without foundation in fact; that defendant was unable to maintain its street-lighting system under these conditions and removed the same, as aforesaid; that said defendant at all times has been, and now is, able, ready and willing to furnish the village with street lighting on fair and reasonable terms. It denies that it has replaced the original machinery with secondhand machinery of lower value, and avers that the machinery now in the plant is of a better grade than formerly installed in the plant. It admits that until restrained by the order of the court it was about to erect on the streets a line of poles for the purpose of stringing additional lines to further its interests, and denies all the other allegations of the petition.
    
      The plaintiff for reply denies all the allegations in the answer except the admission of facts set forth in the petition.
    On the trial in the common pleas court the defendant objected to the introduction of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action nor sufficient to entitle the plaintiff to the relief prayed for, and that the court, as a court of equity, had no jurisdiction of the subject of the action. This objection was overruled and the cause was heard upon the pleadings and evidence. The trial court entered judgment in favor of the defendant.
    The cause was appealed to the court of appeals. In the court of appeals the defendant filed a supplemental answer and cross-petition, in which it incorporated the averments contained in its original answer, and alleged that, subsequent to the decree of the common pleas court, the village had passed a certain pretended ordinance which purported to repeal the original ordinance of the 4th of March, 1889. It alleged that the village was without authority to pass said pretended ordinance, and that the same is illegal and void for the reason that the village was without power to withdraw the consent given in March, 1889; that this consent can only be withdrawn by the state of Ohio; that the enforcement of said pretended ordinance would be in violation of certain provisions of the constitution of the United States and of the state, which are specifically referred to.
    
      Defendant prayed that the village be enjoined from doing any acts to interfere with or destroy any of the property of the defendant.
    The cause was heard in the court of appeals, the entry in the case reciting that it was “heard on the pleadings and agreed statement of facts.” The court found that injunction was not the proper remedy to determine the'rights of the defendant company under the franchise granted to the predecessor of the defendant, but that quo warranto was the appropriate and only remedy for determining that question, and further found that the defendant was not entitled to make use of the streets, alleys and public ways of said village for the purpose o.f maintaining .poles or other structures thereon without the consent of the-village, and decreed that the defendant be enjoined from erecting poles, wires, lamps or other structures in, upon or over the streets, alleys and public places within the corporate limits of said village until the consent of said village shall have been obtained.
    This proceeding is brought by the plaintiff in error to reverse this judgment.
    
      Messrs. Squire, Sanders & Dempsey; Messrs. Carey & Hall and Mr. T. M. Kirby, for plaintiff in error.
    
      Mr. Clyde Merchant; Mr. W. R. Hare, village solicitor, and Mr. D. C. Parker, for defendant in error.
   Johnson, J.

Although the entry of the decree in the court of appeals recites that the cause was heard on the pleadings and an agreed statement of facts, the record here does not show that any bill of exceptions was taken in that court and no agreed statement of facts was given judicial sanction by any authentication of the court. Therefore, the only question left which this court is authorized to consider is whether the petition states facts sufficient to justify the decree complained of.

It is averred in that pleading that in March, 1889, the village passed the ordinance granting the franchise to The Citizens Electric Light & Power Company.

The plaintiff in error rests its case here on the broad proposition that the right to distribute electricity over the streets of the village emanates from the state and not from the municipality. It is contended that the plaintiff in error and its predecessor were organized under the laws of Ohio, with all the powers and privileges granted to telegraph and telephone companies by Section 9170 et seq., General Code, and that therefore no village ordinance was necessary to make its rights effective, except such as related to the mode of use.

Section 9170 provides that “A magnetic telegraph company may construct telegraph lines, from point to point, along and upon any public road,” etc., and Section 9178 enacts that when lands authorized to be appropriated for the use of such company are subject to the easement of a street, alley, public way or other public use, within the limits of a city or village, the mode of use shall be such as agreed upon between the municipal authorities and the company. If they cannot agree, or if the municipal authorities unreasonably delay to enter into an agreement, the probate court of the county shall direct in what mode the line shall be constructed along such street, etc.

Section 9191 provides that the provisions of this chapter shall apply also to a company organized to construct a line or lines of telephone.

In City of Zanesville v. The Zanesville Telegraph & Telephone Co., 64 Ohio St., 67, it was said, at pages 80 and 81: “It will be noticed that it is not the right to use the streets that is made the subject of agreement between the company and the municipal authorities, or of determination by the court. That right, as has been seen, is granted to the company directly by the legislature, and it is not made to depend upon any consent or agreement on the part of the municipality. It is only the mode of such use that becomes the subject of agreement .or judicial determination.”

In Farmer et al. v. The Columbiana County Telephone Co., 72 Ohio St., 526, it is held: “Telephone companies organized in this state obtain power to construct their lines along the streets and public ways of municipal corporations from the state .by virtue of sections of the Revised Statutes, 3454 to 3471-8, inclusive, and not from the municipal authorities.” And in The Queen City Telephone Co. v. City of Cincinnati, 73 Ohio St., 64, it is said, at page 81: “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.”

It is contended by the plaintiff in error that Sections 9192 and 9193, General Code, confer upon electric light and power companies all of the powers conferred upon telegraph and telephone companies in the sections above referred to.

In the consideration of this contention it is necessary to briefly review the history of legislation on the subject. The sections of the General Code above mentioned are included in Section 3454 et seq., Revised Statutes. Those sections were in effect at the time the transactions involved in the cases above mentioned occurred, and were in effect long before the granting of the franchise described in the petition in this case.

The first enactment touching the power of companies organized for the purpose of supplying electricity for lighting streets, etc., was passed May 12, 1886 (83 O. L., 143), and authorized such companies to construct lines for conducting electricity for power and light purposes through alleys, etc., “with the consent of the municipal authorities of the city, village or town, and under such reasonable regulations as they may prescribe.” Prior to 1886 there was no statute conferring power on the municipality to grant to an electric light company the right to erect poles. In the following year the act of January 26, 1887 (84 O. L., 7), was passed as a supplementary section to Sections 3454 to 3471, being numbered Section 3471a. It provided that the provisions of the chapter (telegraphs and telephones), so far as the same may be applicable, shall apply also to any company organized for the purpose of supplying the public and private buildings, manufacturing establishments, streets, alleys, squares and public places with electric light and power. This act did not repeal the act of May 12, 1886, supra, in express terms, but when the two acts are construed together it is clear that it was the intention of the legislature to confer upon electric light companies “the same powers and be subject to the same restrictions as are herein prescribed for magnetic telegraph companies.” This was the state of the law at the time of the granting of the franchise (March 4, 1889) which is involved in this case. Therefore, under the holdings in the cases cited, the grantee company derived its general power to occupy the streets from the state.

On April 21, 1896 (92' O. L., 205), Section 3471a was amended. This act made the provisions of the chapter as to telegraphs and telephones applicable, except Section 3461, which conferred power upon the probate court to determine the matter in the respects stated if the company and the municipal authorities fail to agree. This amendment of 1896 provided that in order to subject the same to municipal control alone, no person or company shall place, construct or maintain any line for lighting through any street, alley, etc., without the consent of such municipality. These provisions substantially have been carried into the General Code in Sections 9192 and 9193.

The act of 1896 disclosed that the legislature was not content to clothe electric light companies in municipalities with the same powers with which it had invested telegraph and telephone companies. The change was made in the light of experience, and the sound and substantial reasons of public policy which dictated the change would seem to be manifest. There is a clear distinction between telegraph and 'telephone companies on the one hand and electric light companies on the other. The reasons why the state should desire to reserve to itself the right to grant franchises for the use of public highways to telegraph and telephone companies do not apply to electric light companies. Telegraph and telephone systems pervade the entire state. They pass in and out of cities and villages and through the rural districts, connecting the whole in a vast network. It might result in great public inconvenience if each municipality had the absolute right to arbitrarily grant or refuse permission to pass through its limits. It is easy to conceive that in many instances such an arbitrary right could be used to foster monopolies and combinations to the detriment of the general welfare. Generally speaking, these suggestions do not apply to an electric light company. As a general rule an electric light company is formed for the purpose of furnishing light to the municipality in which it is located and to its people. Its plant, its poles, wires and equipment are generally located there. But in addition to this, a more important consideration is that a system of telegraphs and telephones is comparatively harmless to life and property, while a system of electric lighting is highly dangerous to life and property. These are substantial reasons why the local authority should be vested with larger power to deal with a matter of such a nature and which comes in such close contact with its own peopie, than is necessary with reference to telegraphs and telephones. However, these are matters wholly within the power of the legislature, which, when exercised, must be judicially enforced.

The purpose of the act of 1896, now Sections 9192, 9193 and 9194, General Code, was to invest the municipality itself with power to make the grant. It specifically excepts the provision of Section 3461, Revised Statutes, and it expressly provides that in order to subject the same to municipal control alone, no company shall place electric wires for lighting, heating or power purposes in the streets of the city or village without the consent of such municipality. The elimination of Section 3461, Revised Statutes, and the use of the word “alone” abrogate the power of the probate court to act in such cases, and this is followed by the express provision requiring the consent of the municipality.

We are convinced, therefore, that the contention of the plaintiff in error that Section 9170 et seq., General Code, as now in force, clothe the electric light companies with all the powers of telegraph and telephone companies, is unsound.

None of the statutory provisions which were held, in the cases cited, to deny the power of the municipality to determine the right of the telegraph and telephone companies to occupy streets, etc., is included in the sections of the General Code relating to electric light and power companies. On the contrary, those sections contain a positive grant of such power to the municipality.

However, as pointed out, the ordinance in question here was passed in 1889, while the act of 1887 was still in force. As to the judgment here attacked, inasmuch as neither the agreed statement of facts referred to in the decree of the court of appeals nor any other evidence has been brought upon the record by bill of exceptions or entry of the court, we are not able to estimate the force of plaintiff in error’s argument with reference to it. We are compelled to assume that the allegations of the petition were sustained by the evidence, and that the defendant, without the knowledge or consent of the plaintiff, removed all of its street lights from the streets, avenues and other public thoroughfares in the village, removed all of its wires, cut down and removed all of the poles used for the support of said wires and lights, completely dismantled its street-lighting system and rendered itself wholly unable to furnish any electricity whatever for the purposes of public lighting. It is manifest from Section 3 of the ordinance that the parties contemplated public lighting as an essential consideration leading to the granting of the franchise which was accepted by the predecessor of the plaintiff in error.

In this posture of the case, while in view of the statutory provisions which were in force at the inception of the enterprise the village would not be entitled to annul the company’s rights, still, by reason of the facts stated above and the voluntary abandonment by the company of its rights and privileges to the extent set forth, it cannot now return and repossess itself of such rights as it abandoned without the consent of the village in accordance with existing law.

The judgment and decree of the court of appeals will, therefore, be affirmed.

Judgment affirmed.

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