Excerpt from Cases on Restraint of Trade, Vol. 1

Dickman, J. The demand made by the Telegraph Association is, not that the Railway Company shall so modify its existing elec trical apparatus as not to interfere with the telephone service, but shall forever abandon the use of an essential part of its electro-motive system, or be perpetually enjoined. In other words, the Association claims the exclusive use of the grounded circuit, inasmuch as the mechanism of the telephone is SO complex, and the electric currents employed so delicate and sensitive, that they cannot be used without disturbance from the heavier currents employed by neighboring elec trical enterprises that Operate with the grounded circuit. We find no foundation for such an exclusive franchise or right. When the Tele graph Association began its operation under the telephone system, neither the statute authorizing it to erect and maintain poles, wires, and other necessary fixtures, nor the ordinance under which it ob tained the power to extend its lines in the streets, gave an exclusive right either to use the earth for a return circuit, or a complete metallic circuit formed by double wires. The legislature did not grant the right by general enactment, nor was the municipal corporation em powered by the legislature to give the Telegraph Association the exclusive right to make use of its streets so as to create a monopoly. In State v. Cincinnati Gas Light and Coke Co., 18 Ohio St. 262, it was held that a municipal corporation cannot, without clear legislative authority, grant an exclusive right to the use of the streets for certain purposes to an individual or corporation. To enable it to grant such an exclusive right by ordinance in the nature of a contract, the power must be Shown to have been expressly granted, or to be so far neces sary to the proper execution of the powers which are expressly granted as to make its existence free from doubt.

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