concurring. Appellant did not contend in this court that Section 4905.65, Revised Code, conflicts with its home-rule power under Section 3, Article XVIII of the Ohio Constitution. This is indicated by its statement of questions, the argument in its briefs and the following quotation at the end of its reply brief:
“In conclusion, Painesville submits that there are only two questions presented by this appeal:
“1. Can a public utility, despite the provisions of R. C. Section 4933.16, place or maintain electric wires or fixtures in or across municipal streets without the consent of the municipality?
“2. Is an ordinance which requires underground construction of electric lines traversing urban areas and carrying electric energy at voltages in excess of 33 KV reasonable and valid?”
Furthermore, those portions of the majority opinion, which consider whether Section 4905.65, Revised Code, does conflict with Painesville’s home-rule power, seem to me to be inconsistent with our holdings in Fremont v. Keating (1917), 96 Ohio St. 468, 118 N. E. 114; Froelicher v. Cleveland (1919), 99 Ohio St. 376, 124 N. E. 212; Union Sand & Supply Corp. v Fairport (1961), 172 Ohio St. 387, *133176 N. E. 2d 224, and West Jefferson v. Robinson (1965), 1 Ohio St. 2d 113, 205 N. E. 2d 382.
Hence, I find it necessary to write this opinion in order to state briefly my reasons for concurring in the judgment.
In addition to the facts previously stated, it appears without dispute that the proposed transmission lines will be constructed and maintained entirely on a right of way owned by plaintiff, except to the extent that the conductors thereof will occupy space above certain streets and a public park of the city of Painesville which will be crossed by those transmission lines.
By Section 4933.15, Bevised Code, plaintiff is given the right of eminent domain to acquire property needed for such proposed transmission lines.
Section 4931.01, Bevised Code, provides in part:
“* * * any person may construct telegraph lines upon and along any of the public roads and highways * * * within this state, by the erection of the necessary fixtures, including posts, piers, or abutments for sustaining the cords or wires of such lines. Such lines shall be constructed so as not to incommode the public in the use of the roads or highways * *
Section 4933.14, Bevised Code, makes the foregoing section applicable to electric public utilities such as plaintiff.
What is now Section 4933.16, Bevised Code, which prohibits anyone from placing or maintaining electric wires or fixtures through a street or land of a municipality without the consent of the municipality, was first enacted in 1896 as a proviso to what is now Section 4933.14, Bevised Code.
This leads to the question asked in Judge Matthias’ opinion: “What effect then does Section 4905.65, Bevised Code, have on this court’s holding in” the Euclid case ‘ ‘ and upon Section 4933.16, Bevised Code, upon which such case is based?”
I agree generally with the subsequent portion of his opinion.