"1. If there be no dependents, the disbursements from the state insurance fund shall be limited to the expenses provided for in section forty-two hereof.

"2. If there are wholly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent. of the average weekly wages, and to continue for the remainder of the period between the date of the death, and six years after the date of injury, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars, nor less than a minimum of one thousand five hundred dollars.

"3. If there are partly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent. of the average weekly wages, and to continue for all of such portion of the period of six years after the date of the injury, as the board in each case may determine, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars.

"4. The following persons shall be presumed to be wholly dependent for support upon a deceased employee:

"(A) A wife upon a husband with whom she lives at the time of his death.

"(B) A child or children under the age of sixteen years (or over said age if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the death of such parent.

"In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employee; but no person shall be considered as dependent unless a member of the family of the deceased employee, or bears to him the relation of husband or widow, lineal descendant, ancestor, or brother or sister. The word 'child' as used in this act, shall include a posthumous child, and a child legally adopted prior to the injury."

It is contended by counsel who filed the demurrer that under the allegations of the petition and a proper construction of the word "dependent," as found in the statute under consideration, that the plaintiff is not entitled to compensation, because at the time of the injury and death of the decedent, who was the husband of plaintiff, they were not living together, actually or constructively, and that the husband must have contributed to the support of his wife at or near the time of his death in order in

Musselli v. Industrial Commission.

[28 O.C.A.

law to make plaintiff a dependent and entitled to participate beneficially under the workmen's compensation act.

Let us first inquire what is meant by "dependent," as the word is used in this statute. The commonly accepted meaning of the word is, one who looks to another for support, help or favor.

The crux of the case seems to center in the word "dependent," as used in the statute heretofore referred to. A wife is a natural dependent-a fact that is universally conceded-and the dependency of the wife on the husband is continuous while the marital relation exists, unless by some act of herself or by operation of law such dependency ceases.

Then let us inquire as to whether or not the claim of defendant's counsel is sound, that because the wife was several thousand miles away from her husband she is not entitled to benefits under the statute, although she had made two attempts to cross the Atlantic ocean, leaving her home in Italy to come to America and join her husband but for some reason not being permitted to do so, and although her husband had sent her money from time to time and as a matter of fact and in law was his wife at the time of his death. In the face of these facts we can not agree with the claim of counsel for defendant.

Learned counsel for defendant in their brief say:

"In March, 1912, after living with wife number two in the state of West Virginia for about three years and three months Musselli left her and came to the state of Ohio. He had contributed nothing to the support of his wife and child in Italy since the month of January, 1909, and nothing toward the support of his West Virginia wife and child since March, 1912.

The question involved in this case, and the question which was submitted before the Industrial Commission of Ohio, is whether or not the wife and child residing in the kingdom of Italy, at the time of the death of Raphael Musselli, the husband and father, are dependents of said decedent under the Ohio Workmen's Compensation Law, and whether they were dependent upon said decedent for their support at the time of the injury which caused his death.

"The facts in this case clearly indicate that there was neither a voluntary or mutual agreement to live separate and apart, but

that there was an abandonment of the marital relations, both legal and moral, by the husband of this plaintiff, and that there existed no reasonable expectations that the relation of husband and wife would ever be resumed, and that under no circumstances under the facts in this case could the plaintiff and the decedent be considered to be either actually or constructively living together. We think that the fact that the decedent had contracted a bigamous marriage is conclusive proof of abandonment of the wife and child living in Italy."

We are unable to subscribe to this doctrine, and do not believe it to be sound from a legal standpoint, and most certainly has no foundation upon which to stand from a moral point of view.

It must be conceded that the provisions of the law under review are wise and humane, and were enacted for the purpose of furnishing the means of support for the widows, children and dependents of employees who might lose their lives while engaged in some labor or work in an endeavor to obtain the means of support for those near and dear to them. This law is for the benefit of the dependents of employees, and in view of this fact how can it be claimed with any force that the surviving widow in the present case should be barred of her rights under the law because her husband contracted a bigamous marriage, or because for a period of time he failed and neglected to send her money? What act has she done or failed to do that should prevent her from receiving the benefits of this law? Are the wrongful, unkind, unfaithful acts and misconduct on the part of her husband to be charged against the dutiful wife and mother, thereby preventing her from reaping the benefits of the statute that was specially enacted to take care of just such unfortunate persons? Certainly not.

We find no allegation in the petition that could be construed as an admission on the part of the plaintiff that she knew of any misconduct of her husband.

Courts have no function of legislation, but simply seek to ascertain the will of the Legislature in its enactment of a law and to give the language used that plain meaning which the words and sentences upon their face imply.

Columbus v. Telephone Co.

[28 O.C.A.

If we are to determine the intent of the Legislature in its enactment of the workmen's compensation act by the rule herein. laid down, and applying the law as thus interpreted to ascertain whether or not the petition in this case is sufficient in law, we must and do say that it is.

Having so found, the judgment of the common pleas court is reversed, and this cause is remanded to that court with instructions to overrule the demurrer to the petition.

Judgment reversed.

POWELL, J,. and SHIELDS, J., concur.

BINDING CHARACTER OF FRANCHISE PROVISIONS.

Court of Appeals for Franklin County.

CITY OF COLUMBUS V. THE OHIO STATE TELEPHONE Co.

Decided, July 2, 1917.

Telephone Company-Bound by Provisions as to Rates Contained in Its Franchise Ordinance-Use of Streets a Sufficient Consideration— Public Utilities Commission Without Power to Change Rates so Fixed—Unforeseen Costs and Unprofitable Operation Not Ground for Disregard of Rate Provisions-Section 614-2, et seq.

1. The use of the streets of a municipality by a telephone company, including the use of the subsurface for a conduit system, constitutes a sufficient consideration to render binding a provision in the franchise ordinance which fixes telephone rates within the corporate limits, and such a provision is enforcible both on behalf of the city and of private consumers located within its limits. 2. The public utilities act has no application to the provision of a franchise ordinance which fixes rates for a definite period.

3. Where the conduit system has been extended under orders from an authorized officer of the municipality, the company may equitably increase its rates within the limits permitted by the franchise ordinance in the event of conduit extensions.

4. A company which has accepted a franchise, including a provision as to rates, will not be permitted to retain the favorable provisions and at the same time eliminate one which unanticipated cost and unprofitable operation has rendered burdensome.

H. L. Scarlett, City Solicitor, and John R. King, Assistant, for plaintiff.

Daugherty, Todd & Rarey and George H. Jones, contra.

BY THE COURT. (Kunkle, Allread and Ferneding, JJ., concurring.)

The city of Columbus brought this action against the Ohio State Telephone Company to enjoin the telephone company from putting into effect a proposed increase of its annual charge upon business phones from $40 to $54 per annum, less a discount of $3 for payment in advance.

The petition alleges that the telephone company is operating under a franchise, ordinance and contract dated and taking effect in the year 1899 and continuing for a definite period of twentyfive years. The ordinance provides for the construction and maintenance of at least five miles of conduits and such extension of the conduit system as might be required by the city after five years from the completion of the exchange.

Under the ordinance and contract, the original telephone company, to whose rights the defendant succeeds, agreed that its charge for business phones should not exceed $42 per annum, but provided that if the city at any time after five years from the installation of the exchange required the company to place additional wires underground that the charges for rentals above set forth might be equitably increased, but not exceeding one dollar per month per phone in excess of the charges above stipulated. The petition alleges that the defendant entered upon and constructed its plant in the streets, alleys and avenues of the city and has constructed and now maintains more than twelve and one-half miles of underground conduits and that the city at no time required or demanded that the telephone company lay additional conduits over and above the five miles originally provided for in the ordinance. The city, therefore, contends that the telephone company has no authority to increase its telephone charges upon business phones above the $42 per annum provided for in the ordinance.

An answer was filed in which the defendant, among other things, admits the terms and provisions of the ordinance and