Opinion, per JOHNSON, J.

authority to make it must clearly and unmistakably appear, and all doubts must be resolved in favor of the continuance of the power."

Plaintiff in error cites State, ex rel. Webster, v. Superior Court, 67 Wash., 37, and Puget Sound Traction Co. v. Reynolds, 244 U. S., 574, in support of its view. Both cases arose in the state of Washington. In the Puget Sound Traction case the federal supreme court shows that the constitution of Washington specifically limits the powers of cities touching the subjects here involved. Mr. Justice Pitney says at page 579: "The Constitution of Washington, Art. XII, § 18, requires the legislature to pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight, and to correct abuses. and prevent discrimination in rates by railroads and other common carriers, and provides that 'A railroad and transportation commission may be established, and its powers and duties fully defined by law.' By Art. XI, § 10, any city containing a population of twenty thousand inhabitants or more is permitted to frame a charter for its own government 'consistent with and subject to the constitution and laws of this state.' This constitution was adopted in 1889, long previous to the date of the earliest of plaintiff's franchise ordinances. The Supreme Court of Washington has held that the provisions of municipal charters are subject to the legislative authority of the State; that the Public Utilities Act superseded any conflicting ordinance or charter provision of any city; and that contractual provisions in franchises conferred by

Opinion, per JOHNSON, J.

municipal corporations without express legislative authority are subject to be set aside by the exercise of the sovereign power of the State. Ewing v. Seattle, 55 Washington, 229; State ex rel. Webster v. Superior Court, 67 Washington, 37, 43-50." It will be observed that the Constitution of the State of Washington itself determined the question, and that the Ohio Constitution contains no such provisions.

The federal supreme court points out that the Washington cases are very clearly distinguishable from another recent case, Detroit United Ry. v. Michigan, 242 U. S., 238, 248. In that case franchises for city lines had been given by ordinances of Detroit. Franchises for suburban lines had been given by village and township ordinances which fixed the fares on a basis more favorable to grantees. Thereafter the limits of the city were extended so as to embrace parts of the outlying railways. The state courts held that the outlying lines, which were embraced within the extended limits, came also within the fares fixed by the city ordinances. At page 253, the federal supreme court says: "Because of the provision of § 10 of Article 1 of the Constitution of the United States, it was not within the power of the State of Michigan by any subsequent legislation to impair the obligations of those contracts, and since the judgments of the Supreme Court of that State gave such an effect to the annexation Acts of 1905 and 1907, in conjunction with the ordinances of 1889, as to impair those obligations, the judgments must be reversed."

Opinion, per JOHNSON, J.

The two recent cases from the United States supreme court, just cited, fairly comprehend and dispose of the questions here suggested.

The contract in this case is of harmless character, "innocuous in itself," and is entitled to the constitutional protection.

As we have seen, it has been conclusively determined that in Ohio full authority had been conferred for the making of the contract. In addition to this the people by an amendment to the constitution have invested the municipalities of the state with plenary power to deal with the subject by binding contracts. Section 4 of Article XVIII provides that "Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service." Therefore, the municipality does not now get its authority from the legislature, but from the constitution. The legislature cannot deprive it of that power.

The constitutional provision referred to was not adopted until after the making of the contract involved in this case, and the validity of that contract is of course to be determined by the law in effect at the time it was made. But inasmuch as under the authorities already cited the contract was valid and binding when made, we see no reason to deny to the municipality authority to insist upon its rights under the contract, now that its power to deal with the subject is sanctioned by the organic law.

Opinion, per JOHNSON, J.

Moreover, we are not able to find that the legislature has attempted to confer upon the public utilities commission the authority to change rates fixed by contract between the company and local authorities.

It is contended that such authority has been conferred upon the commission by Section 524 et seq. of the General Code. Section 524 provides for the filing of a complaint before the commission of rates, fares, etc., that are alleged to be unreasonable or unjustly discriminatory. The succeeding sections provide that upon an investigation, if the rate or rates are found to be unreasonable or unjustly discriminatory, the commission may fix, and order substituted therefor, such rate or rates as it shall have determined to be just and reasonable. There is no provision in any of these sections which expressly authorizes the commission to change rates fixed by contract.

In the very recent case of Quinby et al. v. Public Service Commission, decided April 5, 1918, by the court of appeals of New York, 119 N. E., 433, the power of the public utilities commission of New York to change rates of a street railroad constructed under consent of the property owners and local authorities, where such consent was based upon a stipulated maximum fare, was attacked. Subdivision 1 of Section 49 of the Public Service Commission law of that state provides that whenever the commission shall be of opinion, after a hearing had upon its own motion or upon a complaint, that the rates, etc., charged for the trans

Opinion, per JOHNSON, J.

portation of persons or property by any common carrier, street railroad, etc., subject to its jurisdiction, are unjust, discriminatory or unduly preferential, it may determine the just and reasonable rates and fares thereafter to be observed. The constitution of New York, Article III, Section 18, provides that "no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained." The section further provides that if consent cannot be obtained a proceeding may be conducted in court for the determination of the subject.

The extent of the authority of the commission where a railroad was operated by the consent of the local authorities, as stated, was considered in that case, and it was held in paragraph 4 of the syllabus that "Under Const. art. 3, § 18, providing for consent of property owners and local authorities to the construction and operation of street railroads, where such consent was based upon a stipulated maximum fare, the public service commission is without jurisdiction over the subjectmatter of changing such rate, and the law does not attempt to give it such authority." It will be observed that the provisions of Subdivision 1, of Section 49, of the New York statute, are similar to those of the Ohio statute.