Ohio Public Service Co v. State of Ohio Fritz

• Citation: 71 L.Ed. 898,274 U.S. 12,47 S.Ct. 480
• Decision Date: 11 April 1927
• Docket Number: 264,Nos. 210,s. 210
• Parties: OHIO PUBLIC SERVICE CO. v. STATE OF OHIO ex rel. FRITZ, Pros. Atty
• Court: U.S. Supreme Court

274 U.S. 12

47 S.Ct. 480

71 L.Ed. 898

OHIO PUBLIC SERVICE CO.

v STATE OF OHIO ex rel. FRITZ, Pros. Atty.

Nos. 210, 264.

Argued March 10, 1927.

Decided April 11, 1927.

Messrs. Carl H. Henkel, of Mansfield, Ohio, Frank M. Cobb, of Cleveland, Ohio, and Franklin L. Maier, of Massillon, Ohio, for plaintiff in error.

Messrs. Lyman R. Critchfield and Alton H. Etling, both of Wooster, Ohio, for defendant in error.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

These two writs of error were sued out at different stages of the same cause-the first while a timely application for rehearing was pending; the second after this had been denied. Under the circumstances, plaintiff in error may rely upon the latter writ, and No. 210 will be dismissed.

By an action in quo warranto, the state of Ohio, upon relation of the prosecuting attorney for Wayne county, seeks to oust plaintiff in error, a corporation under her laws, from use of the streets in the village of Orrville. The corporation has general power to transmit and distribute electric energy and current, and claims the privilege to operate there as assignee of rights granted to Gans & Wilson and their successors, by an ordinance of the village council passed February 1, 1892.

The Supreme Court treated the judgment of the Court of Appeals as establishing that the Orrville Light, Heat & Power Company, immediate successor to Gans & Wilson, acquired in 1893 the right to occupy the streets which the ordinance of 1892 gave them. But it held the franchise so acquired was revocable ten years after the original grant, and had been terminated by appropriate village action; also, that, under the act of the Legislature passed April 21, 1896 (92 Ohio Laws, 204), this franchise could not lawfully be assigned to plaintiff in error's predecessor during 1907 without the consent of the village, which was not given. It accordingly affirmed the judgment of ouster pronounced by the Court of Appeals. 113 Ohio St. 325, 149 N. E. 129.

The Ordinance of February 1, 1892, ordained:

'Sec. 1. That Aurel P. Gans and Mellville D. Wilson of Canal Dover, Ohio, their associates, successors, and assigns, are hereby authorized and empowered to use the streets, lanes, alleys, and avenues of the village of Orrville for the purpose of erecting, maintaining, and operating electric light wire mains and apparatus complete for the distribution of electricity for light, heat, and power.'

Subsequent sections inhibited unnecessary obstruction of the streets, directed how the wires should be strung etc.; also that the grantee should furnish, and the village should use and pay for, a...