Opinion, per HOUGH, J. the parties thereunder are to be determined by the contract itself." The rights of the parties thereunder are to be determined by the contract itself. That is to say, by the granting of the franchise, regularly passed by ordinance, and the proper acceptance of the terms thereof, the minds of the contracting parties have met, but the extent of the rights, or the limitation. of the rights thereunder, or the lack of rights or infirmities therein, are all referable to the contract itself and are subjects of lawful interpretation and construction. To this end we must refer to old and well-established principles, for, after all, it is the application of the fundamental basic law to the modern development of business and government, the fitting of those principles to everyday progress and development, that furnishes the constant and continued task of the judicial as well as the other coordinate branches of the government. To constitute a valid contract, there must be parties capable to contract, a lawful subject-matter, a sufficient consideration, and an actual agreement to do or forbear from doing some particular thing. The grant of the franchise is no more or no less than a permission to use the streets for the benefit of the public, and the acceptance of the franchise is no more or less than the expressed intention of doing that for which the grant was intended. But in this case more was done. The telephone plant was constructed, the streets used, and the telephone service installed. The putting into operation of the service supplied what theretofore was wanting, Opinion, per HOUGH, J. that, namely, the subject-matter of the contract, — part of the consideration moving to the village on behalf of its inhabitants, the rights granted to the utility company being the consideration moving to it. Service is not only a proper and sufficient consideration to sustain a contract generally, but it is the one of the two particular things which is the subject of contract under Section 4, Article XVIII of the Constitution, and although there is no definite period of time fixed, and no schedule of rates, yet we doubt not that the village, while the defendant is furnishing service, may enforce the contract in respect to the compelling of the furnishing of the service to all the inhabitants indiscriminately. Again, to constitute a contract, there must be parties capable to contract. Here we meet the difficulty. The village is given the direct power in the Home Rule Amendment to contract "with others" for product or service. No question can arise here, as often did before the amendment became effective, as often nearly as a case arose, as to the authority of the municipality to contract and whether or not in so doing the act of the municipality was ultra vires unless it was definitely shown that the legislature had specifically delegated the power in no uncertain terms. Here the power to contract with others is clear, positive and direct. The question then arises, with what others, with whom? Certainly with any person, corporation or other legal entity capable to contract, and just as certainly not with one who did not possess the power or authority to contract,not from considerations arising by way of limita Opinion, per HOUGH, J. tions upon the municipality, but from considerations going directly to the effectiveness, enforceability and legality of the contract itself. Section 614-52, General Code, provides: "No telephone company shall exercise any permit, right, license or franchise * to own or operate a plant for the furnishing of any telephone service in any municipality or locality * first secures * * * * unless such telephone company * a certificate." The defendant has not applied for or secured a certificate. (See record, page 12, 8th conclusion of fact.) The defendant, therefore, by its failure to possess a certificate is under a legal infirmity, without which it is incapable of contracting for the furnishing of telephone service. It is contracting to do something which it cannot do, to furnish something in law which it is precluded from furnishing. This want of a certificate on the part of a public utility desiring to contract for the furnishing of telephone service is the same as lacking the certificate or badge of authority to enter into a contract to furnish the service. This, however, in no way limits the power of the municipality. It is not even a party to the litigation. Suppose an electric light company, chartered to furnish electric current, should ask, obtain, and accept a franchise to furnish telephone service, clearly outside its charter power. Could it be claimed, because the municipality was the other party and had the constitutional power to contract, to enter into it by constitutional grant, that the corporation or Dissenting Opinion, per JOHNSON, J. ganization laws of the state would thereby of necessity give way and become unconstitutional? The contractual incapacity in no way affects or limits the municipal power, but renders a contract made with another, who is under disability, ineffectual and unenforceable. The contract falls because of the infirmity of the other party, and this section, regulatory in nature, cannot be said to abridge the constitutional grant comprised in the Home Rule Amendment. The judgment of the court of appeals is hereby reversed upon the authority of Celina & Mercer County Telephone Co. v. Union-Center Mutual Telephone Assn., supra, and for the reasons herein announced. Judgment reversed. ROBINSON, JONES and MATTHIAS, JJ., concur. JOHNSON, J., dissenting. The entire case of the plaintiff against The Cranberry Mutual Telephone Company is predicated on the fact that the defendant had not secured the certificate referred to in Section 614-52. That section absolutely prohibits the exercise of a franchise granted by a municipality to a telephone company unless the certificate of the Public Utilities Commission is first secured. By the express provisions of Section 4, Article XVIII of the Constitution (the Home Rule Amendment), and by the decisions of this court construing and enforcing that amendment, the municipality had plenary powers to contract for the furnishing of such service. It is equally well settled that a franchise Dissenting Opinion, per JOHNSON, J. ordinance when accepted becomes a contract "and the rights of the parties thereunder are to be determined by the contract itself." The decisions referred to are recent and familiar, and the propositions stated are nowhere disputed. Therefore, we have in this case, the Cranberry case, this undisputed situation, to-wit: a telephone company, operating a public utility for the furnishing of the service thereof, and a municipality make a franchise-contract, and it is contended that noncompliance with the provisions of Section 614-52, General Code, prevents the exercise of that franchise. Pertinent parts of that section are as follows: "No telephone company shall exercise any * * * franchise * * * to * * * operate a plant for the furnishing of any telephone service, thereunder in any municipality * * * where there is in operation a telephone company furnishing adequate service, unless such telephone company first secures from the commission a certificate *** that the exercising of such * * * franchise is proper and necessary for the public convenience.” Now consider that section. It does not purport to prohibit the making of the franchise-contract. It does not attempt to place the slightest limit on the power or capacity of the public utility company to make the contract. On the contrary this very section recognizes and asserts the full capacity of the telephone company, because, by its plain provisions, if the certificate of necessity for the service in the municipality is given, the contract may be carried out. The only language in the section touching the franchise-contract is that |