Opinion, per DONAHUE, J.

It is sufficient to say that the authorities in other states are practically unanimous in holding that municipalities may exercise police power in conformity with the general laws of the state. It is claimed that California is an exception to this rule, but Section 6 of Article XI of the Constitution of California expressly provides that "All charters *** framed and adopted by authority of this constitution, except in municipal affairs, shall be subject to and controlled by general laws."

This provision of the constitution of California would seem to except municipal affairs from the control of general laws, while in Ohio the constitution, in just as explicit terms, provides that municipalities may adopt and enforce police regulations not in conflict with the general laws.

Notwithstanding the provisions of Section 6 of Article XI of the Constitution of California, the supreme court of the United States held in the case of Home Telephone & Telegraph Co. v. Los Angeles, 211 U. S., 265, that "Only the legislature of a state, or a municipality specifically authorized thereto by the legislature, can surrender by contract a governmental power such as fixing rates, and that the constitutional provisions above referred to conferred no such power upon the municipalities of that state.

It is further contended on behalf of the telephone company that it is not a local public utility, but that it is operating within and without the city of Cleveland and has established long-distance communication with other parts of the state, and that for this

Dissenting Opinion, per WANAMAKER, J.

reason it should be distinguished from public utilities of a purely local nature.

This question, however, is unimportant in the determination of this case.

Judgment reversed.

NICHOLS, C. J., NEWMAN, JONES and MATTHIAS, JJ., concur.

WANAMAKER, J., dissenting. The majority decision, boiled down, holds that the council of Cleveland, under the constitutional amendments of 1912 and under the new charter made pursuant thereto, has no legal right or power to fix telephone rates for the city of Cleveland. That, hereafter, is to be done by a state commission, pursuant to a state

statute.

CONSEQUENCES OF THIS JUDGMENT.

What, now, are the legal and logical consequences of the doctrine announced in this decision?

The people are responsible for the consequences resulting from the plain provisions of their own state constitution; it is their act. The courts are responsible for the consequences of their construction of doubtful provisions of the constitution, because it is the court's act.

If a state commission may regulate telephone rates for a municipality and its inhabitants, in the exercise of the state's police power, it may regulate telephone companies in all respects in their municipal operation. This same doctrine must of

Dissenting Opinion, per WANAMAKER, J.

course be carried and applied to water, heat, light, and transportation companies, indeed to all public utilities serving the necessities, comforts and conveniences for the municipalities of Ohio and their inhabitants.

Whenever and wherever the general assembly desires to exercise its police power over the municipalities of Ohio, it may hereafter do so to the full, without any municipal interference. The general assembly, in the exercise of the same state police power, may under its police power provide for a state police commission, a state fire commission, a state health commission, and every other variety of commission, using the city officers as mere cogs in the state governmental machine by commission.

AUTOCRACY IN OHIO.

This would make the governor of Ohio, who is the appointive power, an actual autocrat over all the cities and villages of Ohio. His power over all cities and villages would be equalled only by the Prussian of Potsdam. The commission, in any given case, could as well be one man as two, three, or more. This one man could control the utilities for the three million people of the cities against their will and without consulting their welfare.

The people would have no voice in the choice of the commission; they would have no control over its official orders, no right of referendum on its official action, and no right of review save to the supreme court, a body that necessarily cannot be as fully informed of local conditions in each separate city as the municipal authorities themselves.

Dissenting Opinion, per WANAMAKER, J.

When such action as the fixing of rates is done by the city council, it is done by the city's own officers, elected by them, responsible to them, and removable by them, and in addition thereto, for the further protection of the people, the voters have the right of a referendum on any such ordinance of a city council.

This is pure, practical democracy, while the state commission plan is pure, practical autocracy. Whatever else we may call it, it is not "government by the consent of the governed;" it is not "government of the people, by the people and for the people."

FUNDAMENTAL PRINCIPLES.

Our Ohio forefathers in 1802 wisely said in their Bill of Rights, Section 18, Article VIII:

"That a recurrence to the fundamental principles of civil government, is absolutely necessary to preserve the blessings of liberty."

Let us emulate and apply their wisdom.

A brief history of the constitutional changes by amendment will be not only interesting but illuminating on the question involved in this case.

The Ohio Constitution of 1851 announced the sacred doctrine that "All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary." Section 2, Article I, Bill of Rights.

Prior to 1910 there had been widespread and deep-seated protest by the people, to the effect that

Dissenting Opinion, per WANAMAKER, J.

the political powers delegated in the Constitution of 1851 had been unjustly used and politically perverted, resulting in the growth and establishment of intolerable abuses, special privilege, inequality of right and burdens, and that the government of Ohio which was designed to be "government of the people, by the people and for the people" had failed in the accomplishment of its primary and paramount purpose. Agitation for a new convention, to make a new distribution and delegation of powers, with efficient safeguards for the protection of the people's rights and the public welfare, had been going on for years.

It finally culminated in a decisive demand for such constitutional convention by express vote of the people at the regular election of 1910. At this election the question of a new constitutional convention was submitted and was overwhelmingly adopted by the voters of Ohio by the unprecedented vote of 693,263 for to 67,718 against, more than ten votes to one in favor of a new constitution, a new political will, a "new order."

Every county in Ohio voted overwhelmingly for it, the ten counties containing the ten largest cities of Ohio showed a vote of 381,493 for to 16,812 against, a ratio of more than seventeen votes for to one against.

Forty-one separate proposals adopted by the constitutional convention were submitted to the voters, and thirty-three of them were adopted, most of them by very decisive majorities. For instance, in the ten counties containing the ten largest cities of Ohio, the vote in favor of the home-rule amend