Opinion, per WANAMAKER, J.

agreed and always have been, expressio unius est exclusio alterius.

Examine these various powers mentioned in the constitution, which the legislature may restrict. What one of them is broad enough by any imaginative feat to include the restriction sought to be made upon the city in this case? These restrictions mentioned in the constitution were restrictions against burdens upon the people in the line of taxation, assessment and debt. None of them is broad enough to include benefits, credits, advantages, income and the like. And yet the contention made by the gas company is that the city had no power to receive any benefit, any profit, from the granting or operating of such franchise.

Again, note the fact that neither this constitutional provision nor any other part of the Constitution of 1851 sought to grant any power to the municipalities relating to municipal finances or funds of a debit or credit nature. It was merely to restrict certain powers of debt, taxation and the like. Now it is evident you cannot restrict what has no existence, and, therefore, it follows that the constitutional convention, knowing the facts, recognized these powers as already existing in the corporation sufficient for self-government and merely provided that in certain respects the legislature "may restrict."

The gas company admits that had Section 3878, Revised Statutes, used the words "subject to such terms and conditions as they [the council] prescribe" instead of "subject to such regulation and restrictions as they [the council] prescribe" the

Opinion, per WANAMAKER, J.

franchise ordinance would be a valid contract and obligatory upon the company.

It must be conceded of course that the grant of power by the general assembly to the municipal government, through its council, was "to grant franchises to gas companies in its streets," etc. Necessarily such grant of power must be in general terms, and such grant must be reasonably and liberally construed so as to effect the purposes of the statute. The legislature might well have used the language "terms and conditions" instead of "regulation and restrictions." If there be any substantial difference in latitude and longitude as to these terms, it would seem to be against the gas company rather than for it; for the language undoubtedly applies to a limitation upon the powers and rights of the franchise company. Bear in mind that there is no qualifying word modifying the word "restriction."

Now by what sort of reason, or want of it, can it be held that the word "restriction" can apply to the use and occupation of the streets and other public places, and the repair of them; but cannot apply to a restriction upon rates, upon profits, and cannot provide that when the rate shall exceed a stipulated sum a certain percentage thereof shall go to the municipality? If the village council is unlimited as to restrictions, how can it be claimed that they may not restrict in these respects?

Much stress is laid in behalf of the plaintiff in error, the gas company, on what is known as the Zanesville case, reported in 64 Ohio St., 67. The fifth paragraph of the syllabus of that case reads:

Opinion, per WANAMAKER, J.

"A municipal corporation, though holding the title to its streets, has no private proprietary interest in them which entitles it to compensation when they are subjected to an authorized additional public burden by the construction of a telephone line therein. But being charged with the duty of keeping the streets under its control in repair, it may be allowed compensation to an amount sufficient to make the repairs rendered necessary by such additional use. It is not essential that provision be made for the assessment of such compensation by a jury."

The statute in that case was somewhat different from the statute in this case, but both statutes, so far as they are lawful enactments, were made under the same provisions of the constitution.

I deny that the municipality's rights are limited to a charge for "repairs." I deny a municipality "has no private proprietary interest in them [the streets] which entitles it to compensation when they are subjected to an authorized additional public burden by the construction of a telephone line therein."

The municipality has a proprietary interest in the streets, a most important proprietary interest. It owns and holds them in trust for the people of the city, and acting as such trustee it is charged in its fiduciary relation with the highest measure of duty to safeguard the public interests to the people of the city. There is a great burden upon the city's highways, great dangers to its people by reason of wires, poles and other structures, and if the city in any case be given the right to regulate

Opinion, per WANAMAKER, J.

or restrict the use in the general terms of the statute, the compensation provided by ordinance for the benefit of the city is not thus to be limited to mere "repairs," whether the ordinance be to a gas company, street railway company or any other public utility.

When a statute clearly confers a grant of power to do a certain thing, without placing any limitations as to the manner or means of doing it, certainly the grantee of such power is naturally and necessarily vested with a wide discretion to do such incidental things as are reasonably and manifestly in the grantee's interests; particularly where that grantee is the public.

The same fundamental principle involved in this case was before this court in The Columbus Citizens Telephone Co. v. The City of Columbus, 88 Ohio St., 466, the syllabus of which is as follows:

"1. A municipality has the power to demand and receive from a telephone company, for the privilege of digging ditches and laying and maintaining subsurface conduits for telephone wires under its streets, compensation beyond what is necessary to restore the pavement to its former state of usefulness. (City of Columbus v. The Columbus Gas Co., 76 Ohio St., 309, approved and followed.)

"2. A stipulation in the ordinance granting the privilege, which requires the company to pay, among other considerations, a certain percentage of its gross annual receipts into the municipal treasury for the use of the general expense fund, to which the company assented, though under pro

Opinion, per WANAMAKER, J.

test, is not an assessment for general revenue in the nature of a tax."

The same general doctrine has been held in other states. It is sufficient to enumerate Missouri, in State, ex rel. Subway Co., v. St. Louis, 145 Mo.,, 551; New Jersey, in Jersey City v. Jersey City & Bergen Co., 70 N. J. L., 360; Pennsylvania, Allegheny City v. Millville, E. & S. St. Ry. Co., 159 Pa. St., 411; Rhode Island, City of Providence v. Union Rd. Co., 12 R. I., 473; Illinois, Byrne v. Chicago General Ry. Co., 169 Ill., 75; South Dakota, City of Mitchell v. Dakota Central Telephone Co., 25 S. Dak., 409; and New York, City of Jamestown v. Home Telephone Co., 125 App. Div., 1. City of St. Louis v. Western Union Telegraph Co., 148 U. S., 92, and many other cases might be cited to the same effect.

After a very careful and thorough examination of this case and the legal principles involved, as well as of adjudications in other courts, we hold that the city of Columbus clearly had the power to contract with the gas company in the language of the franchise.

Now, to the second question. Upon what basis of the company's receipts shall the ten per cent. be computed; on the whole receipts or only on the excess above the fifteen-cent rate?

The language of the franchise in the order in which it appears in the franchise may be subdivided as follows:

1. "The gas company shall pay"

2. "ten per cent."

3. "of all moneys received"