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Opinion of the Court.

which the Zanesville Gas Light Co. obtained the privilege to lay its pipes in the streets and alleys of Zanesville, it was expressly provided that, “The Zanesville Gas Light Company shall during such time as they enjoy the privileges granted by this ordinance, supply the town council with such quantities of gas as may be by them required for public lamps at a price not exceeding,” etc. Therefore, when it was held in Zanesville v. Gas Light Co., supra, that the price of gas might be controlled by Section 2478, Revised Statutes, it followed as held in Gas Light Co. v. Zanesville, supra, that if the gas company refused to obey the second ordinance regulating the price it might be compelled by mandatory injunction to do so, “so long as it continues to exercise and enjoy its franchises as a gas company," which franchises were to be a gas company in Zanesville only. If The East Ohio Gas Company were insisting upon a right to furnish gas to some of its patrons in Akron and at the same time refusing to do the same service to others, it is not doubted that the doctrine of the Zanesville case would receive great consideration, notwithstanding that the original Akron ordinance does not contain the controlling provision which is found in the Zanesville ordinance. But that is not this case.

The defendant in error seems to be insistent that inasmuch as the plaintiff in error is a corporation serving the public, it in some way becomes absolutely subject to control by the public which it serves. The answer to this claim is very well expressed by the Supreme Court of the United

Opinion of the Court.

States, speaking through Chief Justice Waite, in Munn v. Illinois, 94 U. S., 113, 126: “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control."

Defendant in error also claims that the statement made in the amended answer of The East Ohio Gas Company, that it intended to relinquish and surrender its privileges and franchises, granted to it by the ordinance of September 26, 1898, and wholly to retire from said city, is a mere threat, which is intended to intimidate the city of Akron and its inhabitants, and if carried out would be an unlawful discrimination. It does not appear in the record that the gas company is not making that declaration in good faith; and when it does so appear it will then be the proper time to consider it. The entire abandonment of its franchise in Akron and seeking its fortunes elsewhere within the charter limits, do not constitute unlawful discrimination as generally understood.

It is not deemed necessary to review and distinguish the numerous authorities cited for the defendant in error. We heartily assent to very many of them, but they do not seem to us to be applicable

Statement of the Case.

to the precise issue which we here have under consideration.

Judgment reversed and judgment for plaintiff in

error.

Crew, C. J., SUMMERS and PRICE, JJ., concur.

IN THE MATTER OF THE ESTATE OF FERGUSON,

DECEASED.

Allowance for tombstone by administratorSection 6185, Revised

Statutes-Intended as guide to probate court and administrators-Court without jurisdiction to fix maximum sum of expenditure, whenMonument when not procured by widowTo

be erected by administrator at expense of estate. Section 6185, Revised Statutes, which gives authority to the

probate court to allow in settlement by an administrator any just and reasonable amount he may have expended for a tombstone or monument for the deceased, is intended as a guide to the court and to administrators in dealing with that subject, and such court is without jurisdiction, in advance of the settlement of the estate, to entertain an application by the administrator to fix a sum as maximum to be expended by such administrator for that purpose, and order the administrator, in the event that such monument is not procured by the widow or next of kin, to erect such monument and charge the expense to the estate.

(No. 11039—Decided October 19, 1909.)

ERROR to the Circuit Court of Ashtabula county.

The controversy out of which this proceeding grows originated in the probate court of Ashtabula by the filing in that court, January 3, 1907, of an

Statement of the Case.

application by A. C. Tombes, administrator of C. D. Ferguson, deceased, praying an order as to a monument as hereinafter stated. It was shown by the application that the estate amounted to fifteen thousand dollars and more; that the widow of the deceased has applied to the administrator to provide a tombstone or monument, the same to be paid for from the funds of the estate, but the heir-atlaw has refused to consent to such expenditure. Three hundred dollars was suggested as a reasonable amount for the purpose, and the application asked the court to determine the maximum amount of the funds to be so expended and to direct the administrator to erect such monument at a cost not exceeding such amount and carry the same into his account to be filed with the court.

After notice to the heir-at-law the matter was, on January 8, 1907, heard by the court on a demurrer of the heir-at-law to the application. The demurrer was overruled, and January 22, 1907, a hearing was had upon evidence. Upon consideration the court found the sum of three hundred dollars a reasonable amount to be expended and ordered that in case the widew and next of kin failed to erect a suitable monument by July 7, 1907, the administrator shall erect such monument at the grave of deceased, the cost not to exceed three hundred dollars and charge the expense so incurred to the estate.

From this finding and order error was prosecuted by the heir-at-law to the court of common pleas, by which court the finding and judgment of the probate court was reversed. From this judgment of reversal the administrator prosecuted error

Argument for Defendant in Error.

to the circuit court which court affirmed the judgment of the common pleas. The administrator seeks in this court a reversal of the judgment of the circuit and common pleas and an affirmance of the judgment of the probate court.

Messrs. McGiffert & Ullman; Mr. M. A. Soules and Mr. H. E. Starkey, for plaintiff in error, cited and commented upon the following authorities:

1 Rockel Ohio Probate Practice, Sections 20, 22, 24, 651, 649; Hoffman, Admx., v. Fleming, 66 Ohio St., 155; Sheldon v. Newton, 3 Ohio St., 500; Shroyer v. Richmond, 16 Ohio St., 455; Clapp v. Banking Co., 50 Ohio St., 528; Brown, Exr., v. Reed, 56 Ohio St., 264; McLaughlin v. McLaughlin, 4 Ohio St., 508; Railroad Co. v. O'Harra, 48 Ohio St., 343; Doan et al. v. Biteley. 49 Ohio St., 588; 11 Am. & Eng. Ency. Law (2 ed.), 1265; Fairman's Appeal, 30 Conn., 205; Philips v. State, ex rel., 5 Ohio St., 122; Section 8, Article 4, Constitution of Ohio; Sections 524, 537 and 6185, Revised Statutes.

Mr. C. S. Mauk and Messrs. Hoyt, Munsell & Hall, for defendant in error, cited and commented upon the following authorities :

Davis v. Davis, 11 Ohio St., 386; Jones et al. v. Savings Co., 18 C. C., 189, 10 0. C. D., 41; Clapp v. Banking Co., 50 Ohio St., 528, 35 N. E. Rep., 3081; Commissioners v. McGee et al., 11 O, C. D., 106, 20 C. C., 201; Jones, 4dır., v. Green, 11 0. C. D., 548, 21 C. C., 96; Hoffman, Admx., v. Fleming, 66 Ohio St., 143; 64 N. E. Rep., 63;

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