Further on the subject of franchises I refer to 2 Spelling Injunctions and Other Extra. Rem., Section 1807:

"Where the statute by legal exercise of a right which, at common law, was private, is made to depend upon compliance with conditions interposed for the security and protection of the public, the necessary inference is that it is no longer private, but has become a matter of public concern that is, a franchise, the asumption and exercise of which without complying with the conditions prescribed would be a usurpation of a public or sovereign function."

We are cited by counsel for the defendant to People v. Gas Light Co., 38 Mich., 154. The decision of Campbell, chief justice, and the bench was made up of very able judges, among whom was Thomas M. Cooley, and we have to say with respect to that decision simply this: That we are unable to reconcile it with what we understand to be the law and the theory of the law of the state of Ohio upon this subject. It seems to us that if a case of that character should arise in this state, it must be held that the privileges conferred there were in the nature of franchises, and that the conditions imposed were in the nature of conditions to the exercise of such franchises; but, however that may be, we do not understand the case to be in point upon the precise question presented by this demurrer, for the reason that we understand the question arises here upon the granting of a franchise by a state, by an act of legislation which itself imposed the conditions upon which the franchise is to be exercised, and does not involve the question of the effect of conditions imposed by a contract in the form of an ordinance entered into between the company and the municipality. The fact that the city, or individuals, may have a remedy by actions ex contractu or otherwise and can not proceed by quo warranto, affords, we think, no valid objection or obstacle to the state availing itself of this extraordinary remedy for the advantage of the general public, or for the enforcement of the rights of the general public, for it must be remembered that the use of the streets of the city and the occupation thereof by the tracks, cars and business of transportation companies are subjects in which the whole public, not merely residents of the

State, ex rel, v. Toledo R. & L. Co.

[Vol. III, N. S. municipality, are interested and have rights, and in imposing these conditions to the exercise of these franchises, we think the city acts as the agent of the state and for the whole public, not merely for the city in its corporate capacity or for the residents of the city, and that the state may interfere when these conditions in which the public are interested are not complied with. And we believe that quo warranto is a proper form of proceeding to reach the end aimed at.

In State v. Traction Co., 18 C. C., 490, which was a suit in quo warranto, to interfere with and prevent a street railroad from carrying freights through the city of Dayton, on the ground that it was exercising a franchise not conferred upon it by law, it was held that it was exercising a right upon which the municipality had no right to place a limitation, and that an ordinance which undertook to prevent it from carrying freight was invalid for that reason. But, with respect to the remedy pursued, if it had turned out that the contention of the relator was correct as to the right involved, we understand that proceeding by quo warranto was approved of. I read from page 217 a part of the opinion by Summers, J.:

"This brings us to the question of the validity of the provision of the ordinance prohibiting the carrying of freight. It is contended, however, that an ordinance granting permission to construct a street railway is a contract (Cincinnati Street Ry. Co. v. Smith, 29 Ohio St., 291, 306; Cincinnati & S. Ry. Co. v. Carthage, 36 Ohio St., 631; Columbus v. Street Railroad Co., 45 Ohio St., 98); that quo warranto is not the remedy for enforcing a contract (State v. Railroad Co., 50 Ohio St., 239); and further, that a special remedy is provided by Section 1777, Revised Statutes, which makes it the duty of the city solicitor, whenever an obligation or contract made on behalf of the corporation granting a right or easement is being evaded or violated, to apply for the forfeiture or the specific performance of the same.

"It is true that such an ordinance is in some respects a contract, and so is a franchise. And in some states it is held that the right acquired by ordinance to construct a street railway is merely a license or easement, and that quo warranto is not the proper remedy to enforce the ordinance."

Citing many cases, and among them People v. Gas Light Co., 38 Mich., 154.

"But the better considered cases hold that the permission given by ordinance to construct a street railway in the street is a franchise granted by the state through the agency of the municipality, and that a violation of the same may be inquired into in quo warranto."

Citing cases from Wisconsin, Alabama, and State v. Street Ry. Co., 41 S. W. Rep., 955.

And when this case came to the Supreme Court we find from the report in State v. Traction Co., 64 Ohio St., 272, that this course of proceeding to inquire into the question whether or not the company was unlawfully exercising its franchises, seems to have received the approval of the court.

I can not see that State v. Dairy Co., 62 Ohio St., 350, which has been cited by counsel and discussed somewhat, throws any direct light upon this precise question involved here.

This complaint is based upon a clause in Section 2505a, Revised Statutes, that being the form in which the act was passed on April 23, 1898 (93 O. L., 214). This statute confers upon companies of this kind power to lease or purchase property of a railroad company, and to acquire its franchises. It points. out the course of proceeding in order to accomplish this result, and contains this provision in the last clause:

"Provided, that whenever any such lease or purchase is made as herein provided, there shall be no increase of the existing rates of fare by reason of such lease or purchase, nor shall any fare be charged upon any of the separate routes so leased or purchased in excess of the fare charged over such separate routes prior to the lease or purchase thereof, and provided that when any such lease or purchase is made as herein provided, the fare charged for one continuous route or ride in the same general direction over all such leased or purchased lines within any municipal corporation shall not exceed the maximum fare charged over any one of said lines prior to such lease or purchase."

It is distinctly averred in the petition that this purchase of these different lines by the defendant was made under authority of this statute, and it is distinctly averred that the company is offending against this statute, in that it is charging more for a

State, ex rel, v. Toledo R. & L. Co.

[Vol. III, N. S.

continuous ride in the same general direction over, such line or purchased lines within the corporation than the maximum fare charged over one of said lines prior to such lease or purchase. These averments in the petition are very general in form, but we think they are sufficient to withstand a demurrer; whether they would be sufficient as against a motion to make them definite and be sufficient as against a motion to make them definite and certain, we are not called upon to say. A corporation can not dispose of its franchises; a corporation can not acquire the franchises and property of another corporation, except under authority of legislation authorizing it (Branch v. Jesup, 106 U. S., 468, 484, 488). And we are of the opinion that the company having exercised this authority under and by virtue of the statute, since it could not otherwise acquire the property, avails itself of power conferred upon it by the statute subject to the conditions imposed by the statute, and that the attorneygeneral may by quo warranto require it to observe such conditions. Whether these lines and routes with respect to which it is said the company is offending, do run in the same general direction so that it may be required to reduce its fares, is a question we have not yet reached. The petition does not enlighten us except by general terms; further pleadings in the case may present the question. Whether the company may avail itself of this authority without being obliged to observe the conditions on the ground that it had existing rights conferred upon it by previous legislation, or by existing contracts between it and the municipality, is another question, only hinted it and not discussed and not now present in the case, but a question which we imagine is looming up to bother us on after occasions. There is nothing in the pleadings as they stand to indicate that there is any such vested right being interfered with by the conditions imposed.

Something has been said in the course of the discussion about the extent of the relief that may be granted. It is sufficient to say that the court has power to mould the remedy to meet the exigencies of the case. The court will not be called upon to go farther than would be necessary to require the company to desist from exercising its franchises in charging and collecting

fares in so far as they may be in excess of the rates fixed by the statute; but that is a matter not presented by the demurrer and may be for further consideration. We hold that the petition is good as against a demurrer, and the demurrer is overruled.

John M. Sheets, M. R. Brailey and John P. Manton, for plaintiff.

Smith & Baker, for defendant.

REGULATION OF THE SALE OF MILK.

[Circuit Court of Lucas County.]

HARLEY WALTON V. CITY OF TOLEDO.*

Decided, July 1, 1902.

Ordinance-Authorizing Inspection of Milk Valid-As a Health Measure-Permit to Sell Not a License-Exemption of Vendors of their Own Products Not Applicable-Broad Powers to Boards of Health— Ordinance not Burdensome.

1. An ordinance regulating the sale of milk and cream, and providing for an examination of the places where produced and the product sold, and for the issuing of a permit to sell by the board of health, is not burdensome to the producer or inimical to the Constitution. 2. Such a permit, for which a fee of one dollar is charged, is not a license, and therefore not in violation of Section 2669, which exempts vendors of their own products from payment for a license. 3. Moreover, the exemption found in Section 2669 is subject to the exception that it shall not be construed to limit the powers of the board of health, and a fee of one dollar may be collected from persons selling milk regardless of whether it be denominated a license.

HAYNES, J.; PARKER, J., and HULL, J., concur.

Heard on error.

The petitions in error were filed to reverse the actions of the court of common pleas affirming the action of the police court upon certain prosecutions had under the ordinances of the city

*Affirmed by the Supreme Court without report, October 27, 1903.