Statement of the Case.

ritory in the vicinity thereof, with lines extending to Sulphur Springs in Crawford county, under and by favor of a franchise granted or passed by the council of New Washington in September, 1912.

It was also alleged in the petition that the defendant company had failed to secure from the Public Utilities Commission (successor to the Public Service Commission) a certificate of convenience and necessity, required by Section 614-52, General Code, and an injunction was asked against further operations by the defendant company under the franchise.

The common pleas court gave judgment in favor of the plaintiff, which is plaintiff in error here. The case went to the court of appeals upon appeal, and that court reversed the judgment of the court of common pleas and entered certain conclusions of fact and law.

In paragraphs Nos 7 and 8 of its conclusions of fact, the court of appeals found the following:

"7. That said defendant was by ordinance, passed in 1912, granted a franchise by the village council of said village of New Washington, to construct therein a telephone exchange, and for that purpose to occupy the streets and highways of said municipality, and thereby to provide a telephone service to the inhabitants thereof; and that in the year 1912 and 1913 said defendant caused to be constructed therein, and since that time has been operating said telephone exchange and system, providing thereby a telephone service to the members of said corporation with one hundred and eightyfive telephones and lines, the lines extending from

Opinion, per HOUGH, J.

said exchange into the adjacent localities, * * * to connect there with the lines of another telephone company by means of which long distance service would be provided for those who used said defendant's telephone system.

"8. Said defendant did not at any time apply to the Public Service Commission of Ohio, for a permit, right, license, grant or franchise to own or operate a plant for the furnishing of any telephone service thereunder in said village of New Washington or any other municipality or elsewhere, *

and does not now have any such permit, right, license, grant or franchise, as is required by Section 614-52, General Code of Ohio."

Applying the law to the facts above and other facts found, the court reversed the lower court by declaring Section 614-52, General Code, to be unconstitutional in that it was repugnant to Sections 1, 2 and 19, Article I of the Constitution of Ohio, and to Section 1, Article XIV of the Constitution of the United States.

Mr. D. J. Cable; Mr. H. J. Booth; Mr. Allan G. Aigler and Mr. G. W. Sheetz, for plaintiff in error. Mr. O. W. Kennedy and Mr. R. V. Sears, for defendant in error.

Mr. J. D. Johnson and Messrs. Myers & Myers, for Celina & Mercer County Telephone Company.

HOUGH, J. The record discloses that the franchise was passed in September, 1912. The day of the month of its passage does not appear. The 18th Amendment of the Constitution of Ohio be

Opinion, per HOUGH, J.

came operative on the 15th day of November, 1912. This case was set down for reargument, and upon reargument the claim was made that the ordinance became effective subsequent to the time the 18th Amendment became effective, and it was urged that the 18th Amendment, in so far as it applied, was of controlling force.

If it were not for this last question argued on resubmission of the case, the decision announced in Celina & Mercer County Telephone Co. v. UnionCenter Mutual Telephone Assn., ante, 487, would entirely determine the questions made in this record; and with the exception of this later claim all questions will be considered determined upon the authority of that case.

Assuming that the ordinance went into effect after the 18th Amendment to the Constitution of Ohio took effect, what force may be found in the claims of defendant:

1. That the applicable portion of the Home Rule Amendment is self-executing.

2. That the passage of the ordinance and its acceptance make a contract between the municipality and the defendant of the kind and character contemplated in the amendment.

3. That if these two contentions are resolved in the affirmative, then Section 614-52, General Code, is an abridgment of these rights, and for that reason is unconstitutional in that it is repugnant to the Home Rule Amendment.

Section 4 and a part of Section 5 are the pertinent portions of the Home Rule Amendment, and read as follows:

Opinion, per HOUGH, J.

"Section 4. Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility.

"Section 5. Any municipality proceeding to acquire, construct, own, lease or operate a public utility, or to contract with any person or company therefor, shall act by ordinance and no such ordinance shall take effect until after thirty days from its passage."

Transposing the above language to the exact matter in issue it would read:

Any municipality may contract with others for the product or service of any public utility, to be supplied to the municipality or its inhabitants.

And such a contract the municipality may make under this direct power granted in the constitution. That the power thus given is self-executing, this court has several times held. In Dravo-Doyle Co. v. Village of Orrville, 93 Ohio St., 236, the law is definitely stated in syllabus 1:

"Section 4, Article XVIII of the Constitution, confers plenary power on 'any municipality' to acquire, construct, own, lease and operate any public

Opinion, per HOUGH, J.

utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and to contract with others for any such product or service."

See also State, ex rel. City of Toledo, v. Lynch, Auditor, 88 Ohio St., 71, 94, and State, ex rel. Campbell, Pros. Atty., v. Cincinnati Street Ry. Co., 97 Ohio St., 283, 293.

We next come to the effect of the ordinance. Does an ordinance granting a franchise by a village, to construct therein a telephone exchange, and for that purpose to occupy the streets and highways of said municipality, thereby to provide telephone service to the inhabitants thereof (record, page 12, paragraph 7 conclusion of facts), assuming that the same is accepted in writing by the public utility company, constitute a contract for product or service? Because if it does constitute such a contract it is binding and controlling. Ohio River Power Co. v. City of Steubenville, 99 Ohio St., 421, and Interurban Ry. & Terminal Co. v. Public Utilities Commission, 98 Ohio St., 287.

In East Ohio Gas Co. v. City of Akron, 81 Ohio St., 33, syllabus 2, it is held:

"When a municipal corporation, by ordinance, gives its consent that a natural gas company may enter the municipality, lay down its pipes therein and furnish gas to consumers upon terms and conditions imposed by the ordinance, which are accepted in writing by said company, such action by both parties constitutes a contract and the rights of