power of the Legislature, but by section 156 (c) | uncontested points. The issue to be deterauthorized the Legislature to confer additional mined is whether or not the State Corporapowers, and by sections 159 and 164 reserved tion Commission (hereafter called the all the police power of the state, and declared commission) erred in taking jurisdiction of that the right of the commonwealth to pre- the rates of the appellee company for serscribe the duties of public service corporations should never be surrendered, the Legislature, vices performed within the city of Richmond, which has unlimited powers over rate regula- which the city claims have been prescribed tion unless restricted, may grant additional by a contract which is protected by the propower to fix rates to the commission so long viso in section 156 (b) of the Virginia Conas such powers do not infringe the proviso of stitution. section 156 (b), declaring that nothing shall impair the right heretofore or hereafter conferred on municipalities to prescribe regulations of charges, which merely protected existing rights or those thereafter created. Implied repeals are not favored, and an earlier act will be deemed repealed by a later act only in so far as the later is inconsistent with the earlier. 9. Telegraphs and telephones 33(1)-State Corporation Commission has authority to fix rates, notwithstanding they may have been fixed by municipal franchise. Under Code 1919, §§ 4052, 4054, which supplanted Act March 13, 1914 (Laws 1914, c. 95), and Act March 27, 1914 (Laws 1914, c. 340), relating to State Corporation Commission, such commission has jurisdiction to prescribe and enforce just and reasonable telephone rates, charges, and regulations, notwithstanding they may have been fixed by the municipal franchise under which the telephone company is operating. The city having the right under its charter and by the general law (Code 1887, § 1287) to prohibit any telephone company from occupying the streets of the city with its lines without the consent of the counsel, by ordinance of October 15, 1901, granted a franchise to the Southern Bell Telephone & Telegraph Company, its successors and assigns, giving it the right to occupy the streets of the city with its works for the period of 30 years; and by section 11 of this ordinance the company contracted not to charge for telephone service rates in excess of those set forth in a schedule marked "Schedule of Rates of the Southern Bell Telephone & Telegraph Company," to be filed with the clerk of the city council. iginal company and its successor, the appellee, observed the rates thereby prescribed until the Postmaster General, under the act of Congress (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115x), passed pursuant to the war power of the federal government, took over and operated The or Appeal from State Corporation Commis- the property, and increased these rates. sion. Petition by the Chesapeake & Potomac Telephone Company of Virginia for an increase in rates, opposed by the City of Richmond. From an order of the State Corporation Commission allowing petitioner pending investigation to charge increased rates fixed by the federal government during the time it had taken over the property of petitioner as a war-time measure, the City of Richmond appeals. Affirmed. Geo. Wayne Anderson, of Richmond, for appellant. John S. Eggleston, of Richmond, for appel lee. PRENTIS, J. While the arguments of counsel in this case are thorough and complete, most of the questions so ably discussed are well settled, and the crucial questions involved lie within narrow limits. Without neglecting the consideration of every authority cited and every fair argument based thereon, we shall omit reference to many of them in our effort to escape a criticism similar to that made by one of the counsel, to the effect that the briefs in this case are overloaded by the industry displayed and the voluminous citations, as well as confused by irrelevant argument and the discussion of Then, before the government released the property and returned it to its owner, the company filed before the commission its petition, asking for still further increases in the rates. Pending the consideration of this petition, the city denied the authority of the commission over the rates, and as it was evident that the property would be returned to the company November 30, 1919, before there could be any proper investigation of the questions involved, upon the application of the company the commission entered an order authorizing it to continue to charge the rates which had been fixed by the Postmaster General until the commission could itself make the necessary inquiries and prescribe reasonable rates. The city insisted that the commission was without jurisdiction to increase the rates fixed by the ordinance of 1901, and that they constitute the legal and only rates which the company has the right to charge in the city of Richmond. The recital of a few general principles which may be regarded as settled, and which are conceded, may be helpful. [1-4] A state can authorize one of its municipal corporations to establish by an inviolable contract the rates to be charged by (105 S.E.) * a telephone company, or other public service the Constitution of 1902, for such a power. corporation, for a definite term, not unrea- The charter provision relied on is negative, sonable in point of time, and the effect of that "no company shall occupy with its such a contract is to suspend during the works the streets of the city without the term of the contract the governmental power consent of the council," while the statute is of regulating the rates. For the very reason, affirmative, that every telephone company however, that such a contract has the effect "may construct, maintain and operate its of extinguishing for the time being an un- line along or over the streets of doubted power of government, the contract any city or town, with the consent of the and the authority to make it must clearly council thereof," and these statutes are the and unmistakably appear. All doubts must sole source of the city's power, and mark its be resolved in favor of the continuance of limit. It is claimed that, even though there the power of the state. It may be stated, may not be express words giving such a as a general rule, that an ambiguous or power, it nevertheless exists if "clearly and doubtful contract between a telephone com- by express intendment, though not by expany and a municipal corporation as to the press words," the state abandons to municirights of the public, will be construed in palities the control of rates for local service, favor of the public rights. Where express and that both the courts and the Legislature power to fix telephone rates is not given a itself are bound by such clear intendment. municipality, it is subject to the general No just criticism of this suggestion can be law passed pursuant to the Constitution, and made, but the difference, if any, between a constitutionally created commission may "power expressly conferred" and "power conbe authorized by statute to revise rates es- ferred clearly and by express intendment" tablished by a municipal franchise conferred is so shadowy as to be indistinguishable. on a telephone company. The state may What the city is claiming here is that, while direct the company to raise its rates above true that the original contract should be conthose fixed by the franchise, if it is nec- strued as having been entered into subject to essary to secure effective service, and so far the superior power of the state to regulate as the city is concerned there is no con- the rates of public service corporations, yet stitutional objection on the ground of im- nevertheless that agreement was, by the propairment of a contract obligation. Home viso contained in section 156 (b) of the ConTelephone, etc., Co. v. Los Angeles, 211 U. stitution, revitalized, and thereby changed in S. 265, 29 S. Ct. 50, 53 L. Ed. 176; Colorado its essential characteristics into an inviolable Telephone Co. v. Fields, 15 N. M. 431, 110 contract; and that the State, by that proPac. 571, 30 L. R. A. (N. S.) 1088; Woodburn viso, has for the term of the franchise withv. Public Service Commission, 82 Or. 114, 161 held jurisdiction from the commission and Pac. 391, L. R. A. 1917C, 98, note Ann. abandoned to the city of Richmond its right Cas. 1917E, 996; State v. Superior Court, of control, and empowered the city to force 67 Wash. 37, 120 Pac. 861, L. R. A. 1915C, the company to maintain the rates prescribed 287, note, Ann. Cas. 1913D, 78, note; Ben- by the ordinance. wood v. Public Service Commission, 75 W. Va. 127, 83 S. E. 295, L. R. A. 1915C, 261, note; Manitowoc v. Manitowoc, etc., Co., 145 Wis. 13, 129 N. W. 925, 140 Am. St. Rep. 1056, 26 R. C. L. 540. As pointed out in Virginia-Western Power Co. v. City of Clifton Forge, 125 Va. 469, 99 S. E. 723, it is essential that the authority to make such an irrevocable contract, superior to the police power of the state, be expressly conferred, or, as stated in Home Telephone, etc., Co. v. Los Angeles, supra: "For the very reason that such contract has the effect of extinguishing pro tanto an undoubted power of government, both its existence and the authority to make it must clearly and unmistakably appear, and all doubts must be resolved in favor of the continuance of the power." | The commission is the creation of the Constitution, and has no inherent power. All of its jurisdiction is conferred either by the Constitution or is derived from statutes which do not contravene the Constitution. Such statutes are of two classes-one, those which are either directed or authorized by the Constitution, and the other those which have their sanction in the inherent reserved or police power of the state. [5, 6] 1. We first inquire, then, whether the Constitution vests the commission with power to prescribe the rates of the company in the city of Richmond. Unless withheld by the proviso thereof, section 156 (b), in express words and with a circumspection which excludes all doubt of its meaning, confers such power, for it provides that the "Commission shall have the power, and be Numerous other cases can be cited to sus- charged with the duty," of supervising, regutain this proposition. One question then is whether or not the city of Richmond has ever been vested with express power to prescribe telephone rates; and we look in vain in the statutes under which this franchise was granted, prior to lating, and controlling "all transportation and transmission companies" doing business in Virginia, "in all matters relating to the performance of their public duties and their charges therefor"; and "to that end the commission shall, from time to time, pre scribe, and enforce against such companies, | palities to prescribe rates of charge to be * such rates, charges, classifications observed by any public service corporation. of traffic, and rules and regulations, * So that, in order to support the contention that this municipal franchise embodies an inviolable contract which is superior to the jurisdiction of the commission conferred by that section, it is necessary to find somewhere in statute or Constitution that the city has had conferred upon it the authority to prescribe rules, regulations, or rates of charge to be observed by telephone companies. The power of the city rests upon nothing else except the statutes authorizing it to prevent public service corporations from occupying its streets without the consent of the council. as may be reasonable and just," etc.; that "all rates, charges, classifications, rules and regulations adopted, or acted upon, by any such company, inconsistent with those prescribed by the commission, within the scope of its authority, shall be unlawful and void"; that the authority of the commission (subject to review on appeal) "to prescribe rates, charges and classifications of traffic, for transportation and transmission companies, shall be paramount; but its authority to prescribe any other rules, regulations or requirements for corporations or other persons shall be subject to the superior authority of the General Assembly to legislate thereon by general laws"; that section 156 (b), then, after vesting the commission with certain plenary power, paramount even to any legislative authority, as to the rates of transmission companies (in section 153 de fined as including telegraph and telephone companies), contains this proviso: "Provided, however, that nothing in this section shall impair the right which has heretofore been, or may hereafter be, conferred by law upon the authorities of any city, town or county to prescribe rules, regulations or rates of charge to be observed by any public service corporation in connection with any services performed by it under a municipal or county franchise granted by such city, town or county, so far as such services may be wholly within the limits of the city, town or county granting the franchise." Reference is made for the city to Constitution, sections 124 and 125, but not for the purpose of claiming that these sections determine this issue. Section 125 provides that every franchise granted by a city "shall make adequate provision by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates, and the maintenance of the property in good order throughout the term of the grant." This is cited as showing a policy on the part of the state, first inaugurated by the Constitution of 1902, subsequent to the granting of the franchise here involved. While the city does not claim that these sections control this franchise, still it appears to claim that the Constitution thereby ordains a policy for the future, and that together with section 156 (b) should be construed to apply this home rule policy to franchises which had been previously granted; and therefore that, whatever the date of the franchise, these sections of the Constitution, fairly construed, mean that the rates prescribed in every such grant, whether made before or after the adoption of the Constitution, are thereby withheld from the jurisdiction of the commission. There is certainly nothing in sections 124 and 125 to support such a construction, for manifestly they refer only to grants thereafter made. So that the city can only rely upon the proviso in section 156 (b). In Virginia-Western Power Co. v. Commonwealth, supra, it was held that under section 125 of the Constitution of 1902 and the statutes passed pursuant thereto, the cities and towns had been granted the express right to make the contracts there involved when granting such franchises since the Constitution, but held also, in accordance with the unbroken line of authority, that only in such statutes could such express power be found. Certainly this proviso in section 156 (b) does not itself confer such express authority if the language is to be given its ordinary and accepted meaning. It specifically relates to rights which have been theretofore, and hence otherwise, conferred by law upon city authorities, and provides that, if the right has been so theretofore conferred upon any city to prescribe rates of charge, then the contracts made thereunder shall be superior to the powers conferred by that section upon the commission. It does not purport either to confer any new power or to ratify any contract previously made. It embodies and constitutes the sole restric-partment of the state for the exercise of such tion upon the powers of the commission as to such rates, but this restriction is in terms limited to rights which have been or may In determining the effect of this proviso, it is helpful to revert to the law existent before the Constitution became effective. At that time the state, through the Legislature, certainly had plenary power over the rates of all public service corporations, but the power had never been exercised. The avowed purpose of the convention, known to all, was to exercise the dormant power of the state for the control of such corporations. It provided for the organization of the commission, and made it the governmental de powers; but the section 156 (b) was a grant of power to the commission, was never intended to be, and is not, a limitation of any (105 S.E.) such limitation is clearly and definitely expressed. In its essential features, the section is a grant and not a limitation of power. Among other powers thereby granted, it specifically provides that the authority of the commission (subject to review on appeal) to prescribe rates for transmission companies shall be paramount, while its authority to prescribe other rules, regulations, or requirements shall be subject to the authority of the General Assembly to legislate thereon by general laws. After that ample grant of power, there is this limiting proviso, which is relied upon by the city to show that the commission has no authority to regulate these rates. Then, of course, there recurs the same and only vital question as to the authority of the city of Richmond at the time the franchise was granted to prescribe rates for telephone companies, for unless such power had been so previously granted, the proviso has no application thereto. As to whether or use, upon such terms as the proper authorities shall determine, of any streets, parkways, or bridges, within its limits." Mr. Justice Day stated the general rule upon the subject as follows: "The fixing of rates which may be charged by here involved, is a legislative function of the public service corporations, of the character state, and while the right to make contracts which shall prevent the state, during a given period, from exercising this important power, has been recognized and approved by judicial decisions, it has been uniformly held in this court that the renunciation of a sovereign right of this character must be evidenced by terms so clear and unequivocal as to permit of no doubt as to their proper construction. proposition has been so frequently declared by decisions of this court as to render unnecessary any reference to the many cases in which the doctrine has been affirmed. The principle involved was well stated by Mr. Justice Moody 211 U. S. 265, 273 [53 L. Ed. 176, 29 Sup. Ct. in Home Teleph. & Teleg. Co. v. Los Angeles, Rep. 50]: This ""The surrender, by contract, of a power of government, though in certain well-defined cases it may be made by legislative authority, is a very grave act, and the surrender itself, as well as the authority to make it, must be close not there be any municipality in this state which had been granted such a power before the Constitution became effective, we are not informed, but it is clear from the authorities that no such power existed unless there is some enactment whereby the state had byly scrutinized. No other body than the supreme express intendment clearly conferred it. Legislature (in this case the Legislature of the state) has the authority to make such a surrender, unless the authority is clearly delegated to it by the supreme Legislature. The general powers of a municipality, or of any other political subdivision of the state, are not sufficient. Specific authority for that purpose is required.'' Then referring to the opinion of the Chief Justice of Wisconsin, saying that, while the term "grant" was used, "he held the grant was to be upon terms such as the municipal authorities might determine, and that this language was more appropriate to the exercise of power by the municipality than to the making of a contract between the parties," upon this point, Mr. Justice Day continued: It has been frequently decided, where a city has the statutory or constitutional right to prohibit the use of its streets by public service corporations, that this is insufficient to confer such express power to prescribe rates. These cases from Illinois, Utah, and Missouri, clearly, and from New York, apparently, involved such a constitutional provision, and in each it is held that such a provision does not deprive the Legislature of its power to prescribe rates, notwithstanding such franchise contract. State Public Utilities Commission v. Chicago, etc., Ry. Co., 275 Ill. 555, 114 N. E. 330, Ann. Cas. 1917C, 50; City of Chicago v. O'Connell, 278 Ill. 591, 116 N. E. 213; Chicago Railways Co. v. City of Chicago, 292 Ill. 190, 126 N. E. 585; Salt Lake City v. Utah Light & Traction Co. (Utah) 173 Pac. 556, 3 A. L. R. 715; City of St. Louis v. Public Service Commission, 276 Mo. 509, 207 S. W. 799; People ex rel. South Glen Falls v. Public Service Commission, 225 N. Y. 216, 121 N. E. 777. Many other pertinent cases could be cited. Among them are these recent cases, arising under statutes substantially like that in force in Virginia in 1901, when this franchise was adopted which authorized cities to prohibit the use of their streets by public service corporations without the consent of the city authorities: N. J. Law, 20, 102 Atl. 901; City of Benwood Milwaukee Elec. R. Co. v. Wisconsin Railroad Commission, 238 U. S. 174, 35 Sup. Ct. 820, 59 L. Ed. 1254. The pertinent language of the Wisconsin statute there relied on reads thus: itself to this construction, and there is nothing v. Public Service Commission, supra; State ex "Any municipal corporation or county may the cities, but does withhold jurisdiction This would be true even which express power to prescribe such rates | partial exercise. has been otherwise conferred upon the cities. if the Constitution had not, by section 159, Our view, therefore, is that the commission specifically reserved all the police power of is by section 156 (b) vested with plenary and the state, and by section 156 (c) expressly paramount power over these rates, and that authorized the Legislature to confer additionthe restrictive proviso does not refer to such al powers upon the commission for the regulaa franchise as is here involved. tion of such rates. Then, as if to emphasize still further that which needed no emphasis, section 164 provides that [7-9] 2. Reverting, then, to the statutory jurisdiction of the commission, we observe that there are certain constitutional provisions which either permit or authorize such legislation. There is certainly nothing prohibitory in the language of section 156 (b), which suggests that the Legislature itself could not thereafter exercise its reserved power to confer additional jurisdiction upon the commission. As if anticipating that it might at some time be contended that the granting of this power to the commission should be construed as withholding all other power except that which was thereby expressly granted, the following section, 156 (c), expressly provides that "The commission may be vested with such additional powers, and charged with such other duties (not inconsistent with this Constitution) as may be prescribed by law, in connection with the visitation, regulation or control of corporations, or with the prescribing and enforcing of rates and charges to be observed in the conduct of any business where the state has the right to prescribe the rates and charges in connec The next inquiry then is whether there is any provision of the Constitution which indicates that the state thereby surrendered or abandoned to the cities its right to prescribe the rates and charges of telephone companies. This brings us again to the substance of the argument for the city-that is, that the proviso does expressly prohibit the prescription of any rates in excess of those fixed in the franchise under consideration. The restriction, however, is that nothing in that section should impair the right which had theretofore been or might thereafter be conferred by law upon the authorities of any city, town, or county to prescribe rules, regulations, or rates of charge to be observed by any public service corporation in connection with any services performed by it under a municipal or county franchise granted by such city, town, or county, so far as such service may be wholly within the limits of the city, town, or county granting the franchise. "The right of the commonwealth, through such instrumentalities as it may select, to prescribe and define the public duties of all common carriers and public service corporations, to regulate and control them in the performance of their public duties, and to fix and limit their charges therefor, shall never be surrendered or abridged." This reservation indicates that the convention was both cautious and wise in the public interest to discountenance inviolable contracts as to such rates and to retain the control thereof so as to adapt them to changing conditions; because it is as necessary, in order to insure efficient service, to increase rates which are unreasonably low, as it is to reduce them if they are so unreasonably high as to be oppressive and unjust. Reverting again to section 156 (b), even though such repetition may be unnecessary, we repeat: The language of the proviso refers only to the powers by that section vested in the commission; the general purpose of the section being to confer power, not to withhold it. While the proviso limits the powers of the commission which were conferred by that section, its language, which refers only to that section and to those powers, does not purport to curtail any power of the General Assembly, and clearly could not be held to abandon the police power of the state, which is expressly preserved and reserved by section 159. It does not and was not intended either to so change the character of such a franchise or contract as to exempt it from the police power of the state, or to abandon or to limit the authority of the state, through the Legislature, to confer additional powers upon the commission. The state had this general power before the Constitution was adopted, and cannot be held to have surrendered any of its powers except as is plainly manifested in the Constitution. We find nothing else in the proviso referred to, and nothing else in any other section of It is manifest that the constitutional con- the Constitution, which prohibits the state vention exercised only a part of the reserved from exercising its jurisdiction over the rates power of the state to regulate such rates, and of public service corporations fixed by municiwhile the Legislature may enact no law which pal franchise theretofore adopted, and we find contravenes the Constitution, it has unlimited in section 156 (c) specific power given the Legpower, through the commission, to regulate islature to confer additional powers upon the telephone rates, except so far as precluded commission, which necessarily include powers from doing so by constitutional inhibition. in addition to those already conferred by It is not an instance in which the expression section 156 (b), to prescribe rates for public of one thing excludes everything except that service corporations. Even if, however, we which is expressed, for such a power of the should qualify some of the expressions in the |