Did it arise, chise does not arise in this case. 518, 4 L. Ed. 629) was decided in 1819, Mr. Jus- When the Dartmouth College Case (4 Wheat. rights and privileges, in order to avoid any inhi- bond of itself was of no value to Dunfee or anybody else. It was the guaranty in the bond and what the guaranty imported that was of value and was obtained. The complaint sets forth, in addition to what has been quoted, all the facts pertaining to the issuance of the bond and the payment of the loss, and it should be regarded as sufficient. The defendant relies on the case of Glea-lation of the various states conferring corporate son v. Thaw, 236 U. S. 558, 561, 35 Sup. Ct. 287, 289 (59 L. Ed. 717), which holds that securing the services of an attorney at law by false representations is not obtaining "property" within section 17 of the Bankrupt Law. The court there says that the word property in section 17 is used in its popular sense, and means "something sub-adopted the Constitution of 1851 they, for their ject to ownership, transfer, or exclusive pos- own protection, carried these provisions for the session and enjoyment." The difference be- right of amendment, revocation, or repeal into the Constitution itself. Article 1, § 2, of that tween Gleason v. Thaw and the case under instrument provides that: "No special privileges consideration is obvious. The services of or immunities shall ever be granted, that may an attorney are, of course, not property of not be altered, revoked, or repealed by the General Assembly," and article 13, § 2, provides a tangible nature, but here, if I am right, that: "Corporations may be formed under genthe bankrupt obtained money by his fraudu-eral laws; but all such laws may, from time to lent representations. Congress did not in-time, be altered or repealed." These provisions tend by the Bankrupt Law to relieve a debt or from liabilities of that character. I, therefore, recommend that the order appealed from be reversed, with costs, and that the question certified to this court by the Appellate Division be answered in the negative. of the Constitution become an integral part of every law passed by the Legislature, and enter into all legislation subsequently enacted and into every contract made or franchise thereafter granted, with the same force and effect as if incorporated bodily into such contract or legislation. These two sections of the Constitution have usually been construed together by both the state and federal courts. The franchise granted was by its terms indefi WILLARD BARTLETT, C. J., and HIS-nite in time, and the county commissioners, beCOCK, CHASE, CARDOZO, and POUND, JJ., concur. HOGAN, J., not sitting. Order reversed, etc. (93 Ohio St. 466) STATE ex rel. PONTIUS, Pros. Atty., A. Talmadge Synder, Pros. Atty., Henry W. Harter, Jr., Asst. Pros. Atty., and Hubert C. Pontius, all of Canton, for relator. John C. Welty, of Canton, and Kline, Clevenger, Buss & Holliday, of Cleveland, for respondent. R. T. Sawyer and G. M. Cummins, both of Cleveland, for Cleveland Trust Co. PER CURIAM. Judgment for relator on authority of East Ohio Gas Co. v. City of Akron, 81 Ohio St. 33, 90 N. E. 40, 26 L. R. A. (N. S.) 92, 18 Ann. Cas. 332. Judgment for relator. cause of that fact, claim the authority to terminate at any time, and at their will, the opera tion of the road and oust it from its franchise upon the public highways of the state. The right of occupancy of the public highways is a franchise, and as such is derived from the state itself. It is true that municipalities and boards of county commissioners may consent or withhold consent for the occupation of the public highways, and may impose terms and conditions under which such occupancy may be had, but the franchise itself emanates from the state, which has power at all times to limit the control and supervision of its subsidiary agencies. State ex rel. v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262; State ex rel. v. Toledo Home Telephone Co., 72 Ohio St. 60, 74 N. E. 162; Farmer v. Columbiana County Telephone Co., 72 Ohio St. 526, 74 N. E. 1078; Grand Trunk Western Ry. Co. v. South Bend, 227 U. S. 544, 555, 33 Sup. Ct. 303, 57 L. Ed. 633, 44 L. R. A. (N. S.) 405; Louisville v. Cumberland Telephone Co., 224 U. S. 649, 32 Sup. Ct. 572, 56 L. Ed. 934. There are many special privileges enjoyed by corporations which do not accrue to individuals, occupying streets of the municipalities and the and among others is the privilege or franchise of highways of the state; the right of consolidation of corporate bodies; the power to make, alter, and regulate rates of fare, etc. Shields v. State, 26 Ohio St. 86, affirmed in Shields v. Ohio, 95 NICHOLS, C. J., and JOHNSON, WANA-U. S. 319, 24 L. Ed. 357; Railway Co. v. TeleMAKER, and MATTHIAS, JJ., concur. JONES, J. (dissenting). The sole question in this case as presented is whether the board of county commissioners can revoke and annul a franchise granted by the state without having the power so to do delegated to it by the sovereign authority. The question of the perpetuity of the fran graph Ass'n, 48 Ohio St. 390, 432. 27 N. E. 890; Greenwood v. Freight Co., 105 U. S. 13, 26 L. Ed. 961. But it has been held that while these privileges and franchises, though perpetual in form, may be revoked, this does not divest the vested rights of the shareholders in the corporate property nor their rights of contract or choses in action. Greenwood v. Freight Co., supra. Water Co. v. Boise City, 230 U. S. 84, 33 Sup. Ct. 997, 57 L. Ed. 1400; Hudson Telephone Co. v. Jersey City, 49 N. J. Law, 303, 8 Atl. 123, 60 Am. Rep. 619. This brings us to the main question involved in this case. Because the grant to the predecessor of the defendant was indefinite in time, could the board of county commissioners at any time revoke the franchise granted the former by the state and oust it and its property from the public highways? And in this connection it must be conceded that there is no statutory authority whatever for the county commissioners to make such a revocation. Nor by the terms of the grant or resolution of the county commission-ences of having trains operated through its ers to the predecessor of this defendant was there reserved such power. The question under consideration is highly important, and I know of no adjudicated authority, under the facts stated, which sanctions that view. No case has been cited in which this principle was sustained. The courts have held with practical unanimity that wherever one of the agencies of the sovereign power has endeavored to revoke a franchise which could only come from the state, it can be done only by virtue of the power directly delegated by the state or reserved in the grant itself under such delegation. There is a wide distinction between the regulative powers incidental to municipal grants based upon the exercise of the police powers and the attempt, as in this case, to evict and destroy the public use. This distinction is plainly made in the case of Grand Trunk Western Ry. Co. v. South Bend, supra. An examination of the revoking resolution of February 19, 1913, shows no complaint of the character of the use made as affecting the public welfare, but the resolution was based solely on the claim to terminate the franchise at will because it savored of perpetuity. In this particular case the county commissioners of Stark county, Ohio, on February 22, 1892, passed a resolution granting to the predecessor of this defendant the right to construct and operate an electric road on the state highway be tween Canton and Massillon. This grant was not for a definite time, neither did the resolution of the commissioners reserve the right to revoke this grant. In the meantime large investments were made, bonds issued and the operation of the road continued. Later a controversy arose between the commissioners and the company as to the reduction of fares between the two cities, and upon disagreement relating thereto, the county commissioners, on the 19th day of February, 1913, passed a new resolution, reciting that the term of grant was indefinite and continued only so long as the parties might agree. They therefore terminated the grant and ordered the prosecuting attorney to bring suit ousting the company from the operation of its franchise and directing the removal of all its property, equipment, and belongings from the state highway. The result was this suit in quo warranto. As already stated, the Constitution of Ohio has lodged the power of revocation, alteration, or amendment of corporate grants and privileges, whether perpetual or otherwise, in the legislative body of the state, and it alone has the power to revoke these privileges, which it may do either on its own initiative or by expressly dele gating this power to its municipal agencies. And in this connection it may be stated, while a grant may be in terms perpetual, since the Constitution has reserved to the state the right to repeal, it cannot be held to be perpetual when the state acts under its constitutional prerogative. The following cases hold that where no power to alter or repeal has been reserved, either in the law or the municipal ordinance, any subsequent action repealing the franchise was an impairment of the contract and unconstitutional under the contract clause of the Constitution: Grand Trunk Ry. Co. v. South Bend, supra; Owensboro v. Cumberland Telephone Co., 230 U. S. 58, 33 Sup. Ct. 988, 57 L. Ed. 1389; Boise In the first case Mr. Justice Lamar said (227 U. S. on page 555, 33 Sup. Ct. 306, 57 L. Ed. 633, 44 L. R. A. [N. S.] 405): "In determining whether they would grant or refuse that consent the municipal authorities were obliged to balance the present and prospective inconvenistreets against the advantage of having the railroad accessible to its citizens. It could have refused its consent, except on terms; it could have forced the road to the outskirts of the town, or could have permitted the company to lay tracks in the more thickly settled parts of the city. When such consent was once given the condition precedent had been performed and the street franchise was thereafter held, not from the city, but from the state which, however, did not confer upon the municipality any authority to withdraw that consent, nor was there any attempt by the council to reserve such power in the ordinance itself." Mr. Justice Lurton delivered the opinion in both of the cases reported in 230 U. S., and on page 72, of 230 U. S. (33 Sup. Ct. 993, 57 L. Ed. 1389), in the former case, said: "When that grant was accepted and acted upon by the grantee it became a contract between the city and the telephone company, which could not be revoked or repealed, unless the power to repeal was clearly and unmistakably reserved." In that case Mr. Justice Day delivered the dissenting opinion, which was concurred in by three of his associate justices. However, it will be observed, upon examination of this dissenting opinion, that there was no contention as to the principle that the power of revocation must be delegated to the municipal authority, but was based solely upon the view that such delegation of authority had been made by the statutes of Kentucky, for Mr. Justice Day closes his opinion in the following language, page 83 of 230 U. S. (33 Sup. Ct. 997, 57 L. Ed. 1389) in the Owensboro Case: "In my view the case in its present attitude comes to this: The permission to place poles and string wires in the city of Owensboro was granted under a charter which expressly reserved the right to repeal by subsequent act of the municipal Legislature." And in the New Jersey case of Hudson Telephone Co. v. Jersey City, supra, approvingly cited by Judge Lurton in the former case, the learned judge there stated, on page 305 of 49 N. J. Law, on page 124 of 8 Atl. (60 Am. Rep. 619): "No provision is contained in the act under which the prosecutors were incorporated which confers upon a municipality the power to revoke a permission once granted. The grant of the franchise to this company was subject only to a repeal or alteration by the Legislature, and when that corporation had acquired vested rights in the mode designated by their charter, it certainly was not in the power of a common council to strip them of any right so acquired." A judgment of ouster has been rendered by the majority in this case on the authority of the East Ohio Gas Co. v. City of Akron, 81 Ohio St. 33, 90 N. E. 40, 26 L. R. A. (N. S.) 92, 18 Ann. Cas. 332; but that case is readily distinguished from the case at bar. In the Akron Case the legislation of the state with reference to gas companies became a part of the municipal grant, and that legislation provided that the municipalities were "empowered to regulate from time to time" the price of gas, and provided further that in case the price was fixed by the council for a period of not exceeding ten years, upon written acceptance by the company, it should not be lawful for the council to require gas to be furnished at a less price during the period agreed on, not exceeding ten years. Pursuant to this legislation council passed an ordi nance on the 26th day of September, 1898, granting the company the use of its streets and attaching a condition that for the first five years it should charge not exceeding 25 cents per 1,000 feet of gas and for the next five years not exceeding 30 cents per 1,000 feet of gas. After the expiration of ten years from September 26, 1898, council passed another ordinance, fixing the price of gas to be furnished by that company at 20 cents per 1,000 feet, and providing that the company for the ensuing ten years should not charge more than this lower rate provided by the ordinance. The company declined to accept the terms and signified its intention of discontinuing its business in the city, whereupon the city endeavored to restrain it from withdrawing, claiming that its franchise was a perpetual one and that it was obliged to accept the changed rates provided by the city. The plain distinction between that case and this is that in the Akron Case, both by statute and under the ordinance itself, a definite time could be fixed between the parties for the furnishing of gas, with a proviso, however, in both the statute and ordinance, that the rates for gas should not be changed for a period of ten years. When this contract terminated between the parties, in case there was no renewal thereof, the franchise was at an end, and of course either party could withdraw from further continuance under the grant. The state of Ohio had specifically authorized council to make a grant "from time to time," and when such a grant was made and accepted under the provisions of that law, the time did become definite. To hold otherwise than it did in the Akron Case would require the parties to be held to a contract that necessarily lacked mutuality, and it is so stated by the judge delivering the opinion. In this case the state of Ohio did not authorize the county commissioners to grant a franchise from time to time or to provide for any contract for time stipulation between the parties. The grant of the use of the public highway was indefinite as to time, and the principle involved here is covered by the following propositions of the syllabus in the case of Boise Water Co. v. Boise City, supra: "Where there is no limitation in the general law of the state, nor in the charter of the city, as to duration of franchises for public utilities in the streets, the grant of an easement for that purpose, not specifying a period of duration, is in perpetuity.' "Where there is a limitation in the law of the state of duration for which easements in streets can be granted by municipalities, an easement granted for an indefinite period continues for the statutory period. There is a distinction between a definite grant for a period longer than the law of the state permits and an indefinite grant; while the former may be altogether void as an effort to obtain that which is illegal, the latter is simply limited in duration to the period es tablished by law, and during that time it is protected from impairment by the contract clause of the Constitution of the United States." distinction is also noted in Old Colony Trust Co. v. Omaha, 230 U. S. 100, 33 Sup. Ct. 967, 57 L. Ed. 1410. This STATE ex rel. DAVIS v. HILDEBRANT, Sec- (Syllabus by the Court.) 1. UNITED STATES 11-CONGRESS-REGULA- [Ed. Note.-For other cases, see United States, Cent. Dig. § 7; Dec. Dig. 11. For other definitions, see Words and Phrases, SIONS. Under the latter clause of section 4, article 1, of the United States Constitution, complete and plenary power over state legislation enacted thereunder rests in the federal Congress, and its laws supersede all state regulations upon the Under its grant of power to same subject. "make or alter such regulations," Congress did, by its apportionment act of August 8, 1911 [37 Stat. 13, c. 5 (U. S. Comp. St. 1913, §§ 15-19)], legislate upon the subject, by recognizing as lawful such congressional districts as may be created in the manner provided by the laws of those states employing the constitutional referendum. [Ed. Note.-For other cases, see United States, Cent. Dig. § 6; Dec. Dig. 10.] 4. CONSTITUTIONAL LAW 68(1)-DISTRIBU TION OF GOVERNMENTAL POWERS-JUDICIAL Where a ministerial officer assumes to act under a law or constitutional provision which is although the election of an officer is indirectly inclaimed to be invalid or of doubtful construction, volved, the subject-matter becomes one for judi Another distinction is that in the Akron Case there was a delegated power to the municipal council pertaining to gas-rate stipulations which they could agree upon from time to time, but incial cognizance and is not political. the present case the Legislature has granted to the board of county commissioners the naked authority of permitting the county commissioners, outside of municipalities, to grant an easement in the public highways, and to fix terms and conditions of construction. Sections 3438-3443, Revised Statutes. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 125; Dec. Dig. 68(1).] Application by the State, on the relation of David Davis, for mandamus to C. Q. Hildebrant, Secretary of State. Writ refused. Regulatory powers are lodged in the county This action was brought by the relator, boards to make reasonable terms and conditions David Davis, as a citizen of the United under which these highways shall be occupied, but they do not permit them to employ at their States and an elector of this state, and who mere pleasure the destructive power endeavored is a resident and elector in Hamilton county, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Ohio, seeking to invoke the original jurisdic- could not affect or apply to an act of the tion of this court in mandamus. Legislature of Ohio, districting or making an The salient and pertinent facts set forth apportionment of the state of Ohio into conin the petition are as follows: On May 27, gressional districts, and that the sole power 1915, the General Assembly of the state therefor is lodged strictly in the state Legispassed an act, which was approved by the lature, irrespective of the referendum so Governor and filed in the office of the secre- authorized and employed. tary of state on June 4, 1915, redistricting A writ of mandamus is prayed for, askand apportioning the state into 22 congres-ing that the act of May 27, 1915, entitled sional districts, of which portions of Hamil- "An act to amend section 4828-1, General ton county constituted the first and second districts. Prior to that time, by virtue of an act of the General Assembly, the state had theretofore been redistricted and divided into 22 congressional districts under an act passed April 28, 1913 (103 Ohio Laws, 568), in which the districts, including the first and second, were geographically different from the later act of May 27, 1915 (105-106 Ohio Laws, 474). Assuming to act under article 2, § 1c, of the Code," etc., be held valid, that the referen- demurrer. 708, 60 L. Ed. 1172. S. Hogan, E. H. Moore, and J. E. Campbell, all of Columbus, and A. G. Turnipseed, of West Union, for defendants. J. V. Campbell, Pros. Atty., and Smith Hickenlooper, Asst. Pros. Atty., both of Cincinnati, for answering defendants Board of deputy state supervisors and inspectors of elections for Hamilton county. JONES, J. The question to be decided is succinctly stated in the brief of relator's counsel as follows: Constitution of Ohio, adopted in 1912, for Keifer & Keifer, of Springfield, and Sherthe purpose of causing the later act, that of man T. McPherson, of Cincinnati, for re1915, to be submitted to the people of the lators. Edward C. Turner, Atty. Gen., T. state for their approval or rejection, a petition, containing the required number of signatures, was filed with the secretary of state conformably to law, and at the general election following, on November 3, 1915, the act of May 27, 1915, was submitted to the electors of the state for their approval or rejection. At such election, however, the same did not receive, and was not approved by, a majority of the electors voting on the same. By reason of these facts it is alleged that the defendant, Hildebrant, secretary of state and state supervisor and inspector of elections, and his associated defendants, who are deputy state supervisors and inspectors of elections for Hamilton county, now refuse, For the proper determination of this quesand will continue to refuse, to hold elections tion it is necessary to refer, for the purpose in the year 1916 in the first and second con- of construction, to the following provisions of gressional districts composing Hamilton coun- the state and federal Constitutions, and to ty, as divided and described in the act of the laws passed pursuant thereto, so far as 1915, which was submitted to referendum and they may be germane to the proposition infailed of approval by popular vote; that volved. delegates and alternates to political party conventions and political party committeemen are required by law to be elected at the elections ensuing in 1916, and, furthermore, that candidates for Congress are required to be elected in the several lawful congressional districts at such ensuing election. It is alleged that the state and deputy state supervisors and inspectors of elections, "Whether or not the apportioning and redistition and referendum vote held under the Contricting act of May 27, 1915, was annulled by pestitution of Ohio." Section 4, art. 1, of the Constitution of the United States provides as follows: "The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators." Section 1, art. 2, of the Constitution of whose duty it is to provide for the machinery Ohio, as amended September 3, 1912, is as follows: and control the elections, unless directed otherwise by the court, will proceed in the vested in a General Assembly consisting of a "The legislative power of the state shall be conduct of elections in the several districts Senate and House of Representatives but the under the act of 1913, although it is their people reserve to themselves the power to produty to conduct the same in the districts pose to the General Assembly laws and amendas described in the act of 1915, which was the same at the polls on a referendum vote as ments to the Constitution, and to adopt or reject subjected to referendum as aforesaid. hereinafter provided. They also reserve the power to adopt or reject any law, section of any passed by the General Assembly, except as herelaw or any item in any law appropriating money inafter provided, and independent of the general Assembly to propose amendments to the Consti tution and to adopt or reject the same at the It is further alleged in the petition that the submission by referendum to the people of the act of 1915 was void for the reason that the referendum provisions comprised in article 2, § 1c, of the Constitution of Ohio, polls. The limitations expressed in the Consti- | nay vote of two-thirds of all members elected tution, on the power of the General Assembly to enact laws, shall be deemed limitations on the power of the people to enact laws." to each branch of the General Assembly, shall go into immediate effect and shall not be subject to the referendum imposed by the preceding section. As to all other laws passed by the General Assembly, the people have reserved to themselves the power of adoption or rejection. These various sections disclose Section 1c, art. 2, of the Constitution of delegated to the bicameral body composed of that, while the legislative power has been Ohio provides that: The sections immediately following provide for the initiative and referendum powers reserved to the people of the state and for the method in which such powers shall be exercised. the Senate and House of Representatives, the people of Ohio have, by the aforesaid provisions of their Constitution, determined the manner by which such legislative power may be exercised, under what circumstances the laws passed by it may become operative without an appeal to the people, and have further imposed the conditions under which "No law passed by the General Assembly shall go into effect until ninety days after it shall have been filed by the Governor in the office of the secretary of state, except as herein provided. When a petition, signed by six per centum of the electors of the state and verified as herein provided, shall have been filed with the secretary of state within ninety days after any law shall have been filed by the governor in the office of the secretary of state, ordering that such law, section of such law or any item in such law appropriat- such laws may become operative or inoperaing money be submitted to the electors of the tive as they may have been adopted or restate for their approval or rejection, the secre-jected by the popular vote designated as the tary of state shall submit to the electors of the "referendum." state, for their approval or rejection such law, section or item, in the manner herein provided, [1, 2] While article 1, 4, of the United at the next succeeding regular or general elec- States Constitution is controlling upon the tion in any year occurring subsequent to six-states in so far as it grants the Legislature ty days after the filing of such petition, and no of the state authority to prescribe the times, such law, section or item shall go into effect until and unless approved by a majority of those vot-places, and manner of holding elections, this ing upon the same.' is the quantum of the federal grant. The Act Cong. August 8, 1911, c. 5, § 4, pro-and its potency as a legislative body are character of the Legislature, its composition vides: "That in case of an increase in the number of among the powers which are, by article 10 Representatives in any state under this appor- of said Constitution "expressly reserved to tionment such additional Representative or Rep- the states respectively, or to the people." resentatives shall be elected by the state at large Webster's New International Dictionary deand the other Representatives by the districts now prescribed by law until such state shall be fines "Legislature" as follows: redistricted in the manner provided by the laws thereof and in accordance with the rules enumerated in section three of this act; and if there be no change in the number of Representatives from a state, the Representatives thereof shall be elected from the districts now prescribed by law until such state shall be redistricted as herein prescribed." 37 U. S. Stats. at Large, 14. Section 5 of the same act provides: "That candidates for Representative or Representatives to be elected at large in any state Under the reserved power committed to the shall be nominated in the same manner as candi-people of the states by the federal Constitudates for Governor, unless otherwise provided by the laws of such state." Does the term "Legislature," as used in article 1, § 4, of the federal Constitution, comprehend simply the representative agencies of the state, composed of the members of the bicameral body, or does it comprehend the various agencies in which is lodged the legislative power to make, amend, and repeal the laws of the state, including the power reserved to the people empowering them to "adopt or reject any law" passed by the General Assembly under the provisions of section 1, art. 2, of the Constitution of Ohio? By the adoption of the Constitution of 1912, as affecting the passage and finality of laws passed by the General Assembly, the people provided for certain checks upon both the Legislature and the people. Section 1d of article 2 of the Constitution of Ohio provides that laws providing for tax levies and certain emergency laws, when passed by a yea and "The body of persons in a state, or politically organized body of people, invested with power to make, alter and repeal laws." The Century Dictionary defines the same term as follows: "Any body of persons authorized to make laws or rules for the community represented by them." tion, the people, by their state organic law, The same |