Dissenting Opinion, per WANAMAKER, J.

"1. Municipal corporations, in their public capacity, possess such powers and such only, as are expressly granted by statute, and such as may be implied as essential to carry into effect those which are expressly granted.

"2. A municipal corporation has not the power, by ordinance, to compel a railroad company to maintain, at a street crossing within the corporate limits, a watchman, for the purpose of giving warning to passers-by of the approach of trains.

What a gulf between the decisions of the old jurists, the old masters of democracy, and the doctrine announced in the Ravenna case, supra. The people became very weary of this guardianship by the political bosses and big business operating through the legislature, and so they resolved in 1912 to return, so far as constitutional grants could accomplish it, to the rightful constitutional exercise of the powers of local self-government, and therefore the sovereign people of Ohio, in delegate convention assembled, solemnly declared in Section 3, Article XVIII:

"Municipalities shall have authority to exercise all powers of local self-government

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This language is absolute, plenary, complete, unlimited, so far as municipal power is concerned. And then follows this language, "and" - And what? I have always understood that "and" means to add something, not to subtract. I have always understood that it means to include something that has not theretofore been included. All municipal power having been included, the language following

Dissenting Opinion, per WANAMAKER, J.

the first clause, "and" in Section 3, must be intended to add state power, because there is nothing else to add. Therefore they said when the municipality is exercising state power touching "local police, sanitary and other similar regulations," it must conform to general state laws. If the language doesn't mean that, then the last half of Section 3 is fully capable of absolutely destroying the first half, something that is unbelievable. The constitution-makers were not so ignorant and stupid in the use of simple English as to have done or intended to do any such vain thing.

But how big and broad is this phrase "all powers of local self-government," which the municipalities are expressly authorized to exercise? Surely this circle of control over local self-government is big enough in diameter to include all those matters and affairs that are inherently, primarily and by customary usage local in their nature, character, and effect.

This court has recognized that the fixing of public utility rates is inherently a municipal matter, a power the exercise of which the general assembly in times past has conferred by statute upon the municipality. This recognition of statutory grant appears repeatedly in recent cases, among which are the following: Froelich v. City of Cleveland, 99 Ohio St., 376, and Ohio River Power Co. v. City of Steubenville, Id., 421.

By common consent the Constitution of California is recognized as more nearly approximating the new Ohio Constitution touching home rule for municipalities than any other state constitution,

Dissenting Opinion, per WANAMAKER, J.

though its granted powers are conceaedly more limited than those of the Ohio Constitution. Yet under the doctrine prevailing in California, the supreme court of that state has held that the fixing of telephone rates is a municipal affair.

If it is a municipal affair it would seem to the lay mind to be a matter of "local self-government."

There are two federal cases very much in point, passed on by the supreme court of the United States, touching this matter of municipal power in municipal affairs under state constitutional and statutory provisions even less favorable to home rule than is the Ohio provision.

In St. Louis v. Western Union Telegraph Co., 149 U. S., 465, the supreme court had before it the charter power of the city of St. Louis. Justice Brewer speaking for the court said, at page 467:

"Control over the streets resides somewhere. As the legislative power of a State is vested in the legislature, generally that body has the supreme control, and it delegates to municipal corporations such measure thereof as it deems best. The city of St. Louis occupies a unique position. It does not, like most cities, derive its powers by grant from the legislature, but it framed its own charter under express authority from the people of the State, given in the constitution."

Justice Brewer continues: "And this charter is an organic act, so defined in the constitution, and is to be construed as organic acts are construed. The city is in a very just sense an 'imperium in imperio.' Its powers are self-appointed, and the reserved

Dissenting Opinion, per WANAMAKER, J.

control existing in the general assembly does not take away this peculiar feature of its charter."

In Home Telephone & Telegraph Co. v. City of Los Angeles, 211 U. S., 265, Mr. Justice Moody speaking for the court said, at page 271:

"The power to fix, subject to constitutional limits, the charges of such a business as the furnishing to the public of telephone service is among the powers of government, is legislative in its character, continuing in its nature, and capable of being invested in a municipal corporation."

Another pertinent and illuminating case is a recent decision by the supreme court of Colorado, touching the charter of the city and county of Denver, reported in City and County of Denver v. Mountain States Telephone & Telegraph Co., (67 Colo., 225), 184 Pac. Rep., 604. The syllabus in that case, much in point, is as follows:

"5. The people of the state may regulate the business of public utilities through any agency created by them for such purpose, and are not required to do so through an agency created by the legislature.

"6. The police power is not above the Constitution, but is bounded by its provisions and may be exercised by any agency which the Constitution creates for that purpose.

"7. Under Const. Art. 20, the city and county of Denver has the power to regulate telephone rates to be charged for local service within its territorial limits; such regulation being a municipal function.

"8. The police power to regulate rates to be charged by public utilities may be invested in a

Dissenting Opinion, per WANAMAKER, J.

municipality without use of express language, it being sufficient if such power necessarily arises from or is fairly implied in, or is incidental to, the powers freely granted or is essential to the declared objects and purposes of the municipality."

It is almost like arguing an axiom to say that regulating municipal rates for service rendered by any public utility to a municipality and its inhabitants is essentially and inherently a purely local matter, a municipal affair.

Lest, however, there should be any doubt of the grant of this power under the general home-rule grant expressed in Section 3, Article XVIII, the constitution went farther and expressly and explicitly provided for the exercise of certain powers by the municipality touching public utilities. This specific power is expressed in Section 4, Article XVIII, in this phrase, "may contract *

for any such product or service" of any public utility for the benefit of the municipality and its inhabitants.

This power upon the part of the municipality had been denied by the supreme court of Ohio in Farmer v. Columbiana County Telephone Co., 72 Ohio St., 526, in the syllabus of which the following appears:

"They [municipal corporations] have not power to exact or receive compensation by way of free telephone service for themselves or for citizens, or to fix rates for telephone charges."

That was applied to the statutes then in existence. The new constitution was not adopted until some seven years thereafter. It would seem as though this specific power in Section 4, Article XVIII, was