Dissenting Opinion, per WANAMAKER, J.

Section 614-52, General Code, which is the one here and now in question, undertakes to vest in the Public Utilities Commission the power to suppress and stifle all competition in telephone service; the power to give the present occupying company a monopoly of that service. The commission is not only authorized so to do, but directed so to do where the present service is "adequate," that is, sufficient to the public needs. The section makes no reference to reasonableness of price or the terms and conditions of the franchise. It is purely a question under the statute of adequacy of service.

This commission that undertakes to impose and fasten monopoly upon the people of the municipalities of the state, three million of them, is a body of three men, however eminent, unchosen by the people, unresponsible to the people, whose acts and powers are unreviewable by the people, which is a direct violation of the rights of representative government, but a greater violation is its denial to the people of the city of their constitutional right of referendum on all matters of local self-government that are legislative in character.

These constitutional provisions are absolutely wiped out by this rule, as if by fire or flood. True, it is indirectly done, but that makes no difference. What the legislature or commission cannot do directly, it cannot do indirectly.

In Taylor v. Commissioners of Ross County, 23 Ohio St., 22, the syllabus reads: "What the general assembly is thus prohibited from doing directly, it has no power to do indirectly."

Dissenting Opinion, per WANAMAKER, J.

What does the Federal Constitution, especially the 14th Amendment, mean by "equal protectior of the law," as guaranteed to the citizens? What does the Ohio Constitution mean by "common protection and benefit of the law" in its bill of rights?

OHIO CASES CONSTRUE THESE TERMS CONTRARY TO THIS JUDGMENT.

These questions are very largely unanswered and undiscussed in the majority opinion. The opinion does cite some cases on the subject of classification, but this case does not involve a question of mere classification, but rather a question of discrimination, for the favoring of one class and one class only, which is the present occupying utility.

The only Ohio case cited upon the subject of discrimination, in support of the majority opinion, is cited in the Celina & Mercer County Telephone Company case. It is the case of Palmer & Craw ford v. Tingle, 55 Ohio St., 423.

The majority opinion in the Celina case merely quotes the syllabus, as follows:

"The inalienable right of enjoying liberty and acquiring property, guaranteed by the first section of the bill of rights of the constitution, embraces the right to be free in the enjoyment of our faculties, subject only to such restraints as are necessary for the common welfare.

"Liberty to acquire property by contract, can be restrained by the general assembly only so far as such restraint is for the common welfare and equal protection and benefit of the people, and such re

Dissenting Opinion, per WANAMAKER, J.

ght in the acquisition and possession of property, d so is not of uniform operation."

But we still have a later and stronger case rely in point by our supreme court, which deals only with discrimination in favor of a corporabut discrimination in favor of a corporation mounts to a monopoly. It is State, ex rel. l, v. Robins, 71 Ohio St., 273. This case inthe constitutionality of an act of the general y passed in 1904, relating to the giving of bonds." As recited in the opinion, at page ct provides:

he execution of all bonds for the faithful ce of official or fiduciary duties, or the ping, applying or accounting for funds or for one or more of such purposes, exceptions, is thereby required to be mpany or companies.'

be seen that these surety companies

monopoly of the bonding of all ary persons, where a bond was reort, such persons were denied the curing personal bondsmen. The di

therest is a naturale issue in this case was as to the con

of the act, in that it was claimed to e same fundamental principles of the dment of our federal constitution and ill of rights.

Davis in his opinion holding the act uncon1, said, at page 290:

ty to contract is one of the inalienable f man which is guaranteed to every citizen

Dissenting Opinion, per WANAMAKER, J.

straining statute must be of such character that a court may see that it is for such general welfare, protection, and benefit. The judgment of the general assembly in such cases is not conclusive."

I most heartily endorse this doctrine. But it is violated in every line and in every angle of these two telephone cases. The judgment in these cases not only violates "liberty," and denies the right of "acquiring property" and "the right to be free in the enjoyment of our faculties," subject only to such restraints as are necessary for the common welfare, but it undertakes to legislate, not for the common welfare, but for the promotion of a telephone monopoly, and denies the "liberty to acquire property by contract," and "the equal protection and benefit of the people," quoting from the syllabus of the case last cited.

In the opinion in the case of Palmer v. Tingle, which was evidently overlooked by the majority, the following language appears at page 444:

"It is also urged by the friends of the statute, that it is beneficial in this, that it drives all the small and insolvent contractors out of business, and leaves the contracting business in the hands of those who are rich enough to guarantee their contracts. But it is not for the general welfare that small and financially weak contractors should be driven out of business. As well might poor laborers and small furnishers be driven out of business, and thus leave the whole business of building and furnishing to the rich, and give them a monopoly of the whole trade, and drive the weak and poor into starvation.

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