Opinion, per DONAHUE, J.

practically every subject-matter mentioned in these

sections.

The disposition of this case, however, does not depend upon the construction of these statutes conferring police powers upon municipalities. Section 3, Article XVIII of the Constitution of Ohio, as amended September 3, 1912, confers specifically upon municipalities the authority "to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

This ordinance is an exercise of the local police power. Section 3, Article XVIII of the Constitution, clearly contemplates that both the state and the municipalities of the state may exercise the same police power; the only limitation being that the exercise of that power by a municipality shall not conflict with the general laws of the state. There is no statute of this state making it an offense to attempt to steal and take from the person of another anything of value, otherwise than by force and violence and by putting in fear. That being true, of course this ordinance does not conflict with the general laws of the state, and, if there were a statute creating the same offense, it could not be exclusive, even if the general assembly of Ohio in express terms prohibited the municipality from legislating upon the same subject-matter. City of Fremont v. Keating, 96 Ohio St., 468.

Judgment affirmed.

NICHOLS, C. J., WANAMAKER, Newman, JONES, MATTHIAS and JOHNSON, JJ., concur.

Statement of the Case.

THE INTERURBAN RAILWAY & TERMINAL Co. v. THE PUBLIC UTILITIES COMMISSION.

Franchises-Street and interurban railways — Municipal ordinance becomes a contract, when - Police power - Exercise by state and subdivisions — Impairment of existing contracts - Public utilities commission — Jurisdiction - Complaint against rates Before existing franchise expires - Constitutional law.

1. When the terms of a valid ordinance granting a franchise to a street or interurban railway company are accepted by the grantee, such action constitutes a contract between the parties. As long as the company retains the franchise and operates its road thereunder its terms must control. (Interurban Ry. & Term. Co. v. City of Cincinnati, 93 Ohio St., 108, approved and followed.)

2. The state cannot be deprived of its right to the proper exercise of the police power; and none of its subdivisions can bind itself by contracts which are or which may become deleterious to the peace, order, health or morals of the people.

3. A contract concerning proprietary rights, and harmless in itself, made by a municipality in the exercise of power clearly conferred, is protected by the constitution, and the police power cannot be invoked to abrogate or impair it.

4. The statutes of Ohio which create the public utilities commission and define its powers do not confer authority on the commission to change rates fixed by the terms of valid contracts made by a public utility with a municipality in the exercise of powers clearly conferred upon it.

(No. 15852 Decided June 21, 1918.)

ERROR to the Public Utilities Commission.

Plaintiff in error filed its complaint with the public utilities commission, praying that the commission enter into an investigation of rates of fare then in existence on the road of plaintiff in error, and praying for an increase thereof.

Opinion, per JOHNSON, J.

It appears from the complaint that certain grants have been made by different subdivisions of the state through which the complainant's line runs, which have been accepted by the company. These grants provide for certain rates of fare over the line.

The city of Cincinnati, one of the parties mentioned in the complaint, filed its demurrer to the complaint on the following grounds:

"1. That the complaint does not state facts sufficient to constitute a cause of action.

"2. That the Public Utilities Commission of Ohio has no jurisdiction over the subject-matter of said complaint.

"3. That said commission has no jurisdiction over the city of Cincinnati."

This demurrer was sustained and the complaint dismissed. To that order of the commission error is prosecuted to this court.

Messrs. Dinsmore & Shohl, for plaintiff in error. Mr. Joseph McGhee, attorney general, and Mr. C. A. Radcliffe, for defendant in error.

Mr. Saul Zielonka, city solicitor, and Mr. Wm. Jerome Kuertz and Mr. Charles E. Weber, assistant city solicitors, for the city of Cincinnati.

JOHNSON, J. The grant involved in this case, in so far as it relates to the city of Cincinnati and Pleasant Ridge, was under investigation by this court in Interurban Railway & Terminal Co. v. City of Cincinnati, 93 Ohio St., 108. The syllabus

Opinion, per JOHNSON, J.

of that case is as follows: "An ordinance passed by a village council, granting a franchise to an interurban railway company to construct its line through the village, contained the following provision: 'Should the village of Pleasant Ridge be annexed to the city of Cincinnati, the rate of fare charged for a ride in either direction between any point in said village and the Cincinnati terminus shall not exceed five cents.' The company thereafter duly accepted the franchise and constructed, maintained and operated its line thereunder. Subsequently the village was annexed to the city. Held: The acceptance of the grant by the company constituted a binding contract between the parties. As long as the company retains the franchise and operates its road thereunder its terms must control."

The other portions of the plaintiff in error's line were constructed, maintained and operated under similar grants of franchises, which were accepted by the company.

The provisions of the General Code with reference to the power to fix the terms and conditions. of such grants apply both to councils of municipalities and the commissioners of counties through which the lines run.

Section 3443, Revised Statutes, which was in effect at the time of the making of these grants (and which is now Section 9113, General Code), provides that the "Council, or the commissioners, as the case may be, shall have the power to fix the terms and conditions upon which such railways

Opinion, per JOHNSON, J.

may be constructed, operated, extended, and consolidated."

In the case above referred to it is said at page 122: "It is familiar law that when the terms of a valid ordinance are accepted by a grantee, such action constitutes a contract, and the rights of the parties are to be determined by the terms of the contract itself. City of Columbus v. Street Rd. Co., 45 Ohio St., 98; The Cincinnati & Springfield Ry. Co. v. Village of Carthage, 36 Ohio St., 631; The East Ohio Gas Co. v. City of Akron, 81 Ohio St., 33; City of Cleveland v. Cleveland City Ry. Co., 194 U. S., 517."

In Cleveland v. Cleveland City Railway Co., 194 U. S., 517, the court says, at page 533:

"The statutes show that there was lodged by the legislature of Ohio in the municipal council of Cleveland comprehensive power to contract with street railway companies in respect to the terms and conditions upon which such roads might be constructed, operated, extended and consolidated, the only limitation upon the power being that in case of an extension or consolidation no increase in the rate of fare should be allowed.

"That in passing ordinances, based upon the grant of power referred to, the municipal council of Cleveland was exercising a portion of the authority of the State, as an agency of the State, cannot in reason be disputed. If, therefore, the ordinances passed after August, 1879, and referred to previously, which ordinances were accepted by the predecessors of the complainant, with whom it is in privity, constituted contracts in respect to the