The opinion
JELKE, J.
I concur in the conclusion reached by Swing, J., especially in his construction and application of Lan. R. L. 5587 (R. S. 3461).
While the question of the constitutionality of this section is not open to us, having been determined by the Supreme Court to be constitutional, I am of opinion the action of the probate court herein was an unconstitutional construction and application of that law.
The decree of the probate court was pure municipal legislation, and no act to the legislature can make an act legislative in its very essence, judicial in nature, and no construction or application of a constitutional *407 law should be made or can constitutionally be made which would work out that effect.
I dissent from that part of the opinion which limits the combined application of Lan. R. L. 5574, 5602 (R. S. 3454, 3471-1) to overhead construction and companies now in existence and having and operating a switch board or exchange, as such construction would be contrary to the constitution as tending to create a monopoly.
I further concur in the conclusion that the Queen City Telephone Company was not properly organized to apply for or to receive a grant.