Epitomized Opinion.

In 1910 and 1911 Cincinnati, by ordinances, granted to the above plaintiff a franchise for the construction of a Union Depot. The company was to commence within one year, and was also to deposit in the treasury of the city, $10,000, which was to become the property of the city at any time the franchise was forfeited. In 1913 the company brought suit to protect its franchise, and then the city by ordinance revoked it, alleging noncompliance. The revoking ordinance authorized the return of the deposit to the depot company. It then sought an injunction to restrain the city from making the forfeiture. .Cross petitions filed by the city clerk and city treasurer each asking that the city be enjoined from paying back the money. Both the common pleas and appellate courts found in favor of the city, and declared the franchise void. The Supreme Court held:

1. That under the facts, the city council could waive its rights, and the return of the deposit was not a gift by the city. Also that the deposit had not become the property of the city, the ordinance reading that it should so become “if at .any time the franchise is forfeited,” which had never been done.

2. The depot company not having accepted the terms of the revoking act, it could not stand upon the original franchise and, at the same time, claim the return of the deposit. It was conceded by the parties that the franchise had ceased to exist, and that the question in the case now is, “Who is entitled to the money?” The depot company could have dismissed its original petition and elected to stand upon its in effect legal acceptance of the provisions of the revoking ordinance. But the city having attempted to enjoin the return of the money, the company may disclaim its rights to relief under the claimed franchise, and accept the provisions of the revoking ordinance returning the deposit. This may be done, either by an express acceptance or by such disclaimer made upon the trial. This was, in fact, done in the trial court.