Dissenting Opinion. C., 790. Questions of practice are determined by code, when. Cited, Ry. Co. v. Bailey, 70 O. S., 90. "Where Smetters v. Rainey is cited in foreign cases: 18 Fla., 158; 40 Fla., 152; 74 Am. St. Rep., 133; 20 Kan., 495; 21 Neb., 473; 28 Neb., 791; 29 Neb., 617, 619; 10 W. Va., 497; 5 Wyo., 421." It is my belief that the principal case has been followed in more cases than any other since I have been a member of the court. It is distinctly approved and followed in Burke v. Taylor, supra, a case presenting the precise question at issue here. But more to be emphasized is the report of two cases in 67 Ohio St., 516. I quote: "Kries v. Drott et al. Error to the circuit court of Hamilton county. Judgment affirmed on authority of Smetters v. Rainey, 14 Ohio St., 287. Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur." "Sohn v. Bldg. & Loan Co., same volume and page. Error to the circuit court of Hamilton county. Judgment affirmed on authority of Smetters v. Rainey, 14 Ohio St., 287. Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur." May I add (using though reversing, the simile used by the present Chief Justice in State v. Yates, 66 Ohio St., 554), I would fain appeal from Phillip in his present condition to what I conceive to have been a more serious, not to say sober, condition at the time the above entitled cases were disposed of and the conclusions given to the public. It must be apparent from what has preceded that the decision of the majority is inconsistent. It is also apparent that, in view of the previous holdings of the court, it is unnecessary, as the case at bar might well have been disposed of on the doctrine of stare decisis. To my mind, also, it seems very unfortunate. True, the doctrine of the principal case does Dissenting Opinion. not involve a rule of property, but it does involve an important question of practice. Notwithstanding the growling to which reference has been made, the case in the 45th State, supra, and the two cases in 67th State, supra, taken in connection with many unreported cases involving the same question, have given the bar and litigants to believe that Smetters v. Rainey was to stand. Rights have been determined upon it. No change in the policy of the state has occurred; no special inconvenience has resulted from adherence to the doctrine of that case, and the effect of this decision is to unsettle that which before was understood to be definitely settled, and, it seems to me, without sufficient cause. How can a court expect others to have respect for its decisions when it so lightly overturns them itself? How can the bar or the public, in the light of this departure, rely with any certainty on the court's declarations of law however repeatedly declared? With what assurance can lawyers advise their clients? For the foregoing and other cognate reasons, I think the judgment of the circuit court should be affirmed. PRICE, J., concurs in this dissenting opinion. Statement of the Case. FARMER ET AL. v. THE COLUMBIANA COUNTY TELEPHONE COMPANY. Telephone companies obtain power-To construct lines, etc., from sections 3454-3471-8, Revised Statutes-Powers of municipal authorities in reference to telephone companies, defined— Question of free service for city or citizens-City ordinance to receive free compensation not effective, when. Telephone companies organized in this state obtain power to construct their lines along the streets and public ways of munici pal corporations from the state by virtue of sections of the Revised Statutes, 3454 to 3471-8, inclusive, and not from the municipal authorities. The latter have the power, under section 3461, to agree with such companies as to the mode of use, and upon compensation for such use, but not beyond what may be necessary to restore the streets to former state of usefulness. They have not power to exact or receive compensation by way of free telephone service for themselves or for citi zens, or to fix rates for telephone charges. Where such power to so obtain free service and fix rates is attempted to be exercised by the passage of an ordinance incorporating such provisions, the company will not be required to adhere to them by a court of equity by mandatory injunction, even though it be shown that the rates agreed upon and incorporated in the ordinance were so fixed at the solicitation of the company and that the company thereby obtained a benefit which it would not have otherwise obtained in a mode of use of the streets more beneficial to it and more inconvenient to the public. (No. 9004-Decided June 27, 1905.) ERROR to the Circuit Court of Columbiana county. The action below, brought by the plaintiffs in error, Farmer & Getz, in the court of common pleas of Columbiana, was to obtain a mandatory injunetion requiring The Columbiana County Telephone Company to place a telephone instrument in their place of business in accordance with the terms specified and at the rates fixed by an ordinance of the city Statement of the Case. of Salem, by which the Company was accorded its right to erect its poles, wires, et cetera, in the streets of the city. Among other provisions of the ordinance were the following: "Section 3. Be it further ordained, that the said S. C. Thayer, his associates, successors or assigns, be and they are hereby limited in the price to be charged for exchange service within the corporate limits of said city of Salem, under the powers herein granted, as follows, to-wit: The charge for residence service shall not exceed eighteen dollars [$18.00] per annum, payable quarterly in advance; and the charge for business service shall not exceed twenty-four dollars [$24.00] per annum, payable quarterly in advance. "Section 4. Be it further ordained, that the said S. C. Thayer, his associates, successors or assigns, under the powers granted herein, shall erect a line and furnish telephone service to any person residing within the corporate limits of said city, who shall desire to become a subscriber thereto and at the price hereinbefore mentioned; and said subscriber shall be entitled to free telephone service over the lines of the said S. C. Thayer, his associates, successors or assigns, with all their exchanges and subscribers, when connected, within the county of Columbiana, state of Ohio, but shall not be entitled to the use of said lines for such purpose for more than five minutes at any one time; and that the said S. C. Thayer, his associates, successors or assigns, shall permit the police and fire alarm wires and boxes of said city to be placed upon their poles within the corporate limits of said city, without charge therefor, if the city so elects." The ordinance purported to give the grant to one S. C. Thayer, his associates, successors or Statement of the Case. assigns and the present Company acquired its rights by assignment from Thayer. It appears by the petition that the above sections of the ordinance were presented were presented to the council by Thayer voluntarily, and were not required as a condition precedent to the passage of the ordinance, the said Thayer stating that the rates asked were ample for the service to be given, and he confidently expected that they might be reduced. The ordinance being accepted by Thayer a bond was duly given by him to well and truly comply with its provisions. The present Company built and operated the system of lines and a telephone exchange upon the terms provided, especially as to the price to be charged subscribers, and said subscribers have received free telephone service over the lines of the defendant within the county of Columbiana, until the first of July, 1903, when plaintiffs applied for an instrument in their business place in Salem, tendering the proper amount as provided in the ordinance, which the Company refused, demanding a higher amount. The Company has also refused to continue service to any of its subscribers at the ordinance. rate and will remove its instruments unless restrained by injunction. The Company is estopped to deny the terms of the ordinance, which remains in full force, constituting a binding obligation upon the Company, and the plaintiff is entitled to all the rights, benefits and privileges granted by the ordinance. The city of Salem, by cross-petition, adopting the allegations of the petition, further alleged that if it had not been for the proposition made by Thayer to furnish service at the rates fixed by the ordinance, and the grant of the privilege to the city of county |