dissenting,
I am unable to give assent to the reasoning, or concur in the judgment in this case.
I am content with the statement of the case contained in the majority opinion, except that it omits the fact that the Middle-point Telephone Company and Middlepoint Southern Telephone Company were, at-the time of the contracts made by the United States Telephone Company with each, engaged in transacting a long distance or toll service business, limited, however, to a few points outside of Van Wert county, and the assumption that the contracts with these two companies were abandoned or superseded by the contract made with the Middlepoint Home Telephone Company seems to be unwarranted; for it is insisted by the plaintiff in this case that the contracts referred to which are *353pled in the petition and introduced in evidence are still in force and binding upon the Middlepoint Home Telephone Company and are now effective to fix and determine the rights of the parties to this action. The assumption that the contracts under consideration, including the exclusive and restrictive provisions thereof, are within the letter of Section 3455 of the Revised Statutes, is in my judgment unwarranted either by the phraseology of that section or by the history of the legislation of which that section forms a part. It is important to note and remember that a telephone company in this state may construct, own, use and maintain any telephone lines, whether the same are provided for specifically in its charter or not, and whether such lines are wholly within or partly beyond the limits of this state; hence the fact that the plaintiff is chartered as a long distance or toll line company and the defendant as a so-called local telephone company, upon which some stress is laid in the majority opinion, is of little moment and certainly not a controlling factor in the case. There was in fact limited competition between these companies when the contracts “A” and “B” were entered into which was withdrawn and these contracts with contract “C” are relied upon to prevent competition either by the present arrangement with the Bell company or by the construction, or lease of other lines, for all messages are required to be sent over the lines of the plaintiff company.
I dissent from the judgment in this case:
First. Because the contracts set out in the petition in so far as the exclusive and restrictive provisions are concerned tend to prevent competition, are -in restraint of trade and are therefore void as against the public policy of the state as declared by legislative enactment and the decisions of our Supreme Court extending from its earliest history to the present time, and I deny that the depot case in the 71st Ohio State forms any exception to or makes any modification of the uniform course of the decisions of' our court of last resort. The majority opinion is based upon the assumed fact that the first result of the entering into of the contracts under consideration and a large number of contracts of like effect by the United States Telephone Company 'with so-called local companies has' been to furnish competition to *354the Bell system, but realizing the general tendency of such contracts suggests that, “should the combination ever reach the stage' of monopoly by crushing out its powerful rival or by combining with it, we do not doubt the power of the court to afford a remedy and protect the public, but we can not bring ourselves to the conclusion that it should be condemned while engaged in the struggle of competition upon remote possibilities.” I do not understand the public policy of the state to be that it will permit and recognize the validity of contracts so long as their results are favorable and declare them invalid and void only after harmful results have accrued, but that the policy of the state is to test the contracts by .their tendency to restrain trade and so to monopoly and by declaring such as are obnoxious void to make impossible the creation of a monopoly dangerous to the state and harmful to its citizens.
Second. I deny the right of a public service corporation organized under the laws of this state by contract to bargain away its power to serve, or to absolve-itself from the duty of serving, the public to the full measure of the public need, and the public policy of the state requires such a corporation to be free to meet the conditions as they change from time to time.
Third. The statute which gives to telephone companies the rights'and benefits conferred by the chapter ’relating to magnetic telegraph companies subjects them to the same burdens placed upon such companies and among others the duty to forward messages. This duty in my judgment is not met by receiving the human voice over one line and by sending it by another human voice over another line; it is met only by an opportunity for conversation by a direct communication between two persons, as contemplated by the telephone, and I am therefore strongly of the opinion that for the -purposes of carrying out the provisions of this statute one telephone company can compel a physical connection with another. But it is not necessary to go to this extent in this case, for it must be remembered that w-hen -this action was begun and for two months prior thereto -& physical connection had been made between the Bell Company "and the Middlepoint Home Telephone Company and these two companies' were forwarding messages each for the other in strict *355compliance with the requirements of the statute, and the decree in this case will operate to prevent two willing companies from performing a duty enjoined upon them by law.
Fourth. The contracts in this case in their exclusive and restrictive provisions apply only to business and points which can be reached over the United States Telephone Company, but the decree in this case prevents physical connection of any kind and thereby deprives the Middlepoint Home Telephone Company from arranging for the benefit of its subscribers, for messages to points not reached by the United States Telephone Company. Clearly even if the contracts under consideration are valid and enforcible they should not be enforced beyond the letter of the contract and certainly not beyond what is essential to the protection of the company seeking the enforcement of the contracts.