The

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. 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, Bates' Ann. St., enacted in 1891 (Laws 1891, p. 296). 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, 74 N. E. 1078. (Referring to this last case, it may not be amiss here to remark that on page 532 of 72 Ohio St., page 1080 of 74 N. E., 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 condi. tions 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 nui. sance. 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. Ass'n, 48 Ohio St. 390, 27 N. E. 890; L. S. & M. S. Ry. Co. v. Elyria, 69 Ohio St. 414, 69 N. E. 738. It seems, therefore, clear that there is no power in the probate 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 Ohio N. P. [N. S.] 349), and by the circuit court, opinion by Swing, J. (5 Ohio Cir. Ct. 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., and SHAUCK, PRICE, and CREW, JJ., concur.

(73 Ohio St. 83)

FOREST CITY RY. CO. et. al. v. DAY. (Supreme Court of Ohio. Nov. 28, 1905.) STREET RAILROADS-GRANT OF FRANCHISECONSENT OF PROPERTY OWNERS-RATES OF FARES.

The requirements of section 30 of the new Municipal Code (section 1536-185, Rev. St. 1903) that the council of a city shall not grant a franchise for the construction of a street railroad excepting "to the corporation, individual or individuals, that will agree to carry passengers upon such proposed railroad at the lowest rates of fare, and shall have previously obtained the written consent of a majority of the property holders upon each street or part thereof, on the line of the proposed street railroad, represented by the feet front of the property abutting on the several streets along which such road is proposed to be constructed," confers upon such property holder the privilege of giving or withholding his consent to the construction of such road, but it does not give him the privilege of limiting his consent to a particular corporation or individual. His consent, so limited, is inconsistent with the requirement that the franchise be given to the corporation or individual that will carry passengers at the lowest rates of fare and would tend to defeat the purpose of the statute. The limitation, therefore, is void, and the consent good as a consent to the construction of the road by the lowest bidder.

(Syllabus by the Court.)

Error to Circuit Court, Cuyahoga County. Suit by one Day against the Forest City Railway Company and others. Judgment for plaintiff, and defendants bring error. Reversed.

September 9, 1903, the city of Cleveland granted a franchise to Albert E. Green and assigns for the construction and operation for 20 years of an electric street railway on Denison avenue between Lorain and Pearl streets in said city. Green in writing accept

ed the terms of the ordinance and commenced the construction of the railway. November 12, 1903, the defendant in error, Day, an owner of property fronting on that part of Denison avenue, brought suit in the court of common pleas of Cuyahoga county to enjoin Green and the Forest City Railway Company, plaintiffs in error, from constructing the railway, on the ground that at the time of the passage of the ordinance the written consent of a majority of the property owners on that part of Denison avenue, represented by the feet front of the property abutting that part of the avenue, had not been obtained. The court of common pleas found for the defendants and dismissed the petition. On appeal the circuit court made a special finding of facts and concluded as matter of law that a majority of consents had not been obtained and perpetually enjoined the construction of the road.

Gilbert H. Stewart, Blandin, Rice & Ginn, and Garfield, Howe & Westenhaver, for plaintiffs in error. Collister & Halle, for defendant in error. Newton D. Baker, City Sol.

SUMMERS, J. (after stating the facts). The total frontage is 28,793 feet and a frac tion. One-half is 14,397 feet, and anything in excess a majority. Of the consents, 9,310 feet were uncontested, and of the consents contested the circuit court found good 3,843 feet, making a total of 13,153 feet, about 1,250 feet less than a majority. The circuit court found certain consents not good, but it will be unnecessary to notice all of these, because those covered by the 11th, 12th, 13th, 22d, 23d, and 32d findings of fact, covering 2,023 feet, present the same question, and upon the facts found the circuit court erroneously concluded that they were not good. Being of opinion that they are good, a majority of the consents was produced to council, and it is unnecessary to notice the others held not good.

It appears from the eleventh finding of fact: That on July 27, 1903, the Cleveland Electric Railway Company, a corporation owning and operating a system of street railways in said city, applied to the council for leave to extend its tracks onto said Denison avenue and to operate an extension of its said system thereon. That George Fleisher, the owner of property having a frontage of 209.59 feet on said Denison avenue, on August 3, 1903, signed and delivered to an agent of said company a writing as follows: "Cleveland, Ohio, Aug. 3, 1903. I, the undersigned, being the owner of property on Denison avenue in the city of Cleveland, to the extent of 210.59 feet front, hereby request the Cleveland Electric Railway Company to construct an extension of its existing street railway lines upon and along said street in front of my premises, and to maintain and operate the same as a part of its system of street railway now in operation in the city of Cleveland. This request is made as a per

sonal request, and to the Cleveland Electric Railway Company only, and I consent to the construction and operation of such an extension of said company's lines upon and along said street; but this consent shall not be assignable, and is not intended as authority for any other street railroad to be constructed and operated upon said street. George Fleisher. Witness: J. R. Hawthorne." That on August 19, 1903, he signed a consent in writing as follows: "The undersigned property owner hereby consents to the construction of a double track street railroad on Denison avenue for all the property standing in my name." That on August 24, 1903, he signed a writing as follows: "I, the undersigned, being the owner of property to the extent of 210.59 feet on Denison avenue in the city of Cleveland, hereby withdraw and cancel any and all consents which I have heretofore given for the construction of any other street railroad except the Cleveland Electric Railway Company upon said street." The last two writings were filed with the clerk of the city and he had them with him in the council chamber on September 9, 1903, when he reported to the council that he had examined "the consents for the construction of a double track street railroad on Denison avenue presented by Albert E. Green, and find that the same represents a majority of the feet frontage on Denison avenue." The first writing was not filed with the clerk and was not presented to the council. The first is a consent to an extension, the second and third relate to an original construction.

We may assume that, if the first writing had been brought to the attention of council that the third would have operated as a cancellation or revocation of the second, but, as it was not brought to the attention of council, the effect of the third writing must be determined without reference to the first, and, looking alone to the second and third, the third must be held to be merely an attempt to limit the second, so that it would be a consent only to the Cleveland Electric Railway Company. Section 1536-185, Rev. St. 1903 (section 30 of the Municipal Code) requires the grant to be made by council to the person or corporation who will agree to carry passengers at the lowest rates of fare, and provides that the written consent of a majority of the property holders upon each street or part thereof, on the line of the proposed street railroad, represented by the feet front of the property abutting on the several streets, along which such road is proposed to be constructed, must be obtained before any grant is made. The requirement that the grant must be made to the person or corporation agreeing to carry passengers at the lowest rates of fare would afford little security, if the highest bidder could, by obtaining a majority of the consents, prevent a grant to any one but himself. The right conferred by the Legislature is to consent

to the construction of a road in the street, and a limitation of the consent to a particular bidder is inconsistent with the requirement that the grant be to the lowest bidder and is void. The consent is good, but the limitation is void. The ruling in State ex rel. v. Bell, 34 Ohio St. 194, where a similar statute was under consideration, is to this effect.

The judgment of the circuit court is reversed, the injunction dissolved, and this court, proceeding to render the judgment that court should have rendered upon the facts found, dismisses the petition.

Reversed and petition dismissed.

DAVIS, C. J., and SHAUCK, PRICE, CREW, and SPEAR, JJ., concur.

(73 Ohio St. 127)

GRAHAM v. COOLEY. (Supreme Court of Ohio. Nov. 28, 1905.) INTOXICATING LIQUORS-ACTION FOR CIVIL DAMAGES-NOTICE TO SELLER-COMPLAINT.

In an action, under section 4357, Rev. St. 1892, against a person selling intoxicating liq uors to recover for an injury in consequence of intoxication, it is sufficient, respecting the notice provided for in sections 4357 and 4358, Rev. St. 1892, to aver that the notice was given to the seller, and it is not necessary to aver that such notice was given both to the seller and to the owner or lessor of the premises wherein such intoxicating liquors were sold.

[Ed. Note. For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, § 421.]

(Syllabus by the Court.)

Error to Circuit Court, Tuscarawas County. Action by Alice Graham against one Cooley. From a judgment of the circuit court, reversing a judgment of the common pleas for plaintiff, she brings error. Reversed.

The plaintiff in error, Alice Graham, sued the defendant in error in the court of common pleas of Tuscarawas county to recover damages for the unlawful sale of intoxicating liquors to her husband. She averred "that on or about the 21st day of November, 1902, the plaintiff notified the defendant in writing not to sell any intoxicating liquors to her said husband." A general demurrer to the petition was overruled, and a trial resulted in a verdict and judgment. The circuit court reversed the judgment on the ground that the court of common pleas erred in overruling the demurrer.

P. S. Olmstead, for plaintiff in error. John A. Buchanan, for defendant in error.

PER CURIAM. Section 4357, Rev. St. 1892, is as follows: "Every husband, wife child, parent, guardian, employer, or other person injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall, after the giving and during the existence of the notice provided for in the next section, have a right

of action in his or her own name, severally or jointly against any person or persons who, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person; and the owner of any building or premises and the person renting or leasing the same, having knowledge that intoxicating liquors are to be sold therein, in violation of law, or having leased the same for other purposes, knowingly permit intoxicating liquors to be sold therein, that have caused the intoxication in whole or in part, of such person, shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors as aforesaid, for all damages sustained, as well as exemplary damages." Section 4358, Rev. St. 1892, prior to the amendment read as follows: "Such husband, wife, child, parent, guardian, or other interested person liable to be so injured by any sale of intoxicating liquors to any person, and desiring to prevent the sale of intoxicating liquors to such person, shall give notice either verbally or in writing, before a witness, to the person or persons so selling or giving the intoxicating liquors, or [and] to the owner or lessor of the premises wherein such intoxicating liquors are given or sold, or file with the township or corporation clerk in the township or municipal corporation wherein such intoxicating liquors may be sold, notice to all liquor dealers not to sell to such person any intoxicating liquors from and after ten [five] days from the date of so filing such notice." And as amended April 25, 1898 (93 Ohio Laws, p. 371), it reads as above, omiting the words in italics and substituting the word [and] for or, and [five] for ten.

The circuit court held the petition defective for want of averment that the notice was served also on the owner or lessor of the premises, or an averment that the seller was also the owner of the premises. Prior to the amendment, upon the filing of the notice with the clerk, or giving notice to both the seller and the owner or lessor, the seller and owner or lessor were jointly and severally liable, and the seller or giver was liable in the event of notice to him alone. Did the Legislature, by the amendment, intend so to change the law that the seller is not liable unless notice is served both upon him and the owner? The apparent intention of the Legislature was to withdraw permission to file the notice with the clerk, and to do away with the requirement that the notice be given before a witness. Section 23, Rev. St. 1892, provides that in the interpretation of Part Second, which includes section 4358, unless the context shows that another sense was intended, the word "and" may be read "or," and "or" read "and," if the sense requires it. If the sole change made by the amendment had been to substitute "and" for "or," it may be conceded that it could not be read "or," but the apparent purpose of the amendment having been to make the important changes

already noticed, and no good reason being apparent why the Legislature should intend to make the right of action against the seller depend upon notice to the owner in addition to himself, the copulative "and" may be read "or" now, just as prior to the amendment "and" might have been substituted for the disjunctive "or," if the sense required it. If we are to stick in the bark, it might have been before the amendment just as forcibly contended that an action would lie against the seller, if notice had been given either to him or the owner, as now that it will not unless it is given to both.

The judgment of the circuit court is reversed, and that of the common pleas affirmed.

Under Burns' Ann. St. 1901, § 6848, providing how roads located on township lines shall be divided, after county commissioners have ordered the opening of such a road, the neighboring trustees have no discretion to refuse to take charge of and keep in repair their re spective parts of such roads as designated by the statute.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Highways, § 328.]

2. SAME-DUTY OF SUPERVISORS.

Where a north and south highway was located on a line dividing two townships, the north half thereof fell to the township on the west, and it was the duty of the highway supervisor of such township in whose district the highway lay to keep the same in repair independent of the commands of his township trustee, under the express provisions of Burns' Ann. St. 1901, §§ 6818, 6828.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Highways, § 328.]

3. MANDAMUS-HIGHWAYS-REPAIR.

A road district supervisor being absolutely bound to keep his highways in repair as provided by Burns' Ann. St. 1901, § 6818, mandamus was maintainable to compel him to take charge of a highway properly within his district, and repair and keep the same repaired to the extent of the available means at hand.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Highways, § 331.]

Appeal from Circuit Court, Clinton County; Saml. R. Artman, Special Judge.

Mandamus by the state, on the relation of William Stephenson, to compel Adam Rodenbarger, as supervisor, etc., to repair a highway. From a decree in favor of relator, defendant appeals. Affirmed.

W. R. Moore, for appellant. H. C. Sheridan, for appellee.

HADLEY, J. Mandamus. A public highway four miles long runs north and south, on the line dividing Ross township on the