N+o. nil (Snntell iOaw Bt^nol ICihrarg CORNELL UNIVERSITY JUL 111*12 LAW LIBRARY. Cornell University Library KF2393.N421911 V ' 1 The law of street railroads a f ompjc jte 3 1924 019 373 335 A Cornell University y Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 9373335 Street Railway Reports Report the decisions of the Federal Courts and State Courts of last re- sort, with exhaustive annotations and notes. Price, $5.00 per volume. For Sale by all Law Booksellers. THE LAW OF STREET RAILROADS A COMPLETE TREATISE ON THE LAW RELATING TO THE ORGANIZATION OF STREET RAILROADS, THE ACQUISITION OF THEIR FRANCHISES AND PROPERTY, THEIR REGULATION BY STATUTE AND ORDINANCE, THEIR OPERATION AND LIABILITY FOR INJURIES TO THE PERSON AND PROPERTY OF PASSENGERS, EMPLOYEES AND TRAV- ELERS AND OTHERS ON THE PUBLIC STREETS AND HIGHWAYS, IN- CLUDING ALSO PLEADING AND PRACTICE BY ANDREW J. NELLIS SECOND EDITION VOL. I ALBANY, N. Y.: MATTHEW BENDER & CO. 1911 Copyright, 1902, By MATTHEW BENDER. Copyright, 1904, By MATTHEW BENDER. Copyright, 1911, By MATTHEW BENDER & CO. 33 ■WEED-PARSONS PRINTING COMPANY PRINTERS AND ELECTROTYPERS ALBANY, N. Y. CORNELL UMVSRSm JUL 1 i 1*12 LAW LIBRARY. PREFACE TO SECOND EDITION. The favorable reception accorded to " The Law of Street Surface Railroads " and " Street Railroad Accident Law " has led the publishers to arrange for the publication of a new edition of two volumes in which the two original treatises have been com- bined. As stated in the preface to " Street Railroad Accident Law " that portion of the former volume with reference to negli- gence cases was included but more fully treated and brought down to date by the later decisions. This of course led to considerable duplication, all of which has been eliminated in the present edition. Otherwise in the preparation of this work the same gen- eral course of treatment has been followed except that in many cases it has been deemed advisable to divide long sections in order that the principle of law stated and its modification or the limita- itons thereon might be more readily located by the user. Also a chapter on elevated railroads has been added. Trusting that this new edition will meet with as favorable a reception as did the former work, it is respectfully submitted to the profession. April 29, 1911. W PREFACE. The publication In June, 1902, of " The Law of Street Surface Railroads " was so well received by the legal - profes- sion that the writer was induced by the publisher to undertake the preparation of a volume devoted exclusively to negligence cases against street railroads. The enormous increase in the volume of street railroad accident litigation, due to the aston- ishing development of the electric railway system in this -country in recent years, has created a demand in the profes- sion for a work giving the general principles and rules of law, the application of which must determine cases arising where exact precedents are not to be found, and giving in brief and -compact form a clear statement of the precedents established by the decisions of the courts. To gather together, classify, analyze, and arrange the thousands of decisions of the courts, and present, in form for ready reference and use, the rules and principles established, with the reasons upon which the same are founded, with as full a presentation as practicable of facts in the text and the copious notes thereto, has been the aim of the work and has proven a laborious task, but the results achieved must be serviceable to the profession. This statement of the law is supplemented by chapters on Pleading, Presumptions, Burden of Proof, Evidence, Elements and Measure of Damages, Questions for the Jury, Instruc- tions, etc., giving the rulings on questions of practice arising in such actions. That portion of the former volume having reference to negligence cases has been necessarily included in the present work, but has been more fully treated and brought down to date by the later decisions, and the general subjects [vii] yiii PREFACE. of negligence, employer's liability, master and servant, and the pleading and practice in street railroad accident cases fully covered. The removal of the writer from Johnstown, N. Y., ta Albany, N. Y., last year, to engage more extensively in the- active practice of his profession, necessitated his calling to his assistance in the preparation of the work Mr. Dewitt C. Moore* former City Attorney of Johnstown, N. Y., and an able mem- ber of the bar of that city, upon whom has devolved the- greater burden of the work and to whom is due, and is hereby cheerfully accorded, the greater credit for such merit as the work shall be found to possess. The writer feels well assured that his labors have been well and carefully done. This vol- ume is submitted in the fullest confidence of its meeting, with the approval of the bar as a work of usefulness to the profession. Albany, N. Y., May 25, 1904. ANDREW J. NELLIS. PREFACE. The increase in the surface railway mileage, and the great number of street railroad decisions made during the last ten years it is believed warrants the issuing of this volume, which it is hoped will in a measure fill the growing demand for a work on this subject. The writer has endeavored to put together in convenient form and under a logical arrangement an epitome of the judicial decisions relating to street railways, the aim being to make the book a time and labor saver, and a work of ready reference for the active practitioner, and one also that would be useful to the student who desires to become ac- quainted with the law of street surface railroads from the organization to the dissolution of the corporation. It is claimed for this work that it contains a survey of the entire field of the law, that in it there is gathered together, classified and arranged, a mass of precedent directly involv- ing street surface railroad corporations, their organization, acquisition of franchises and other property, construction and maintenance of railroad, and their rights and duties in relation to other users of the public streets and highways, and also to their passengers and employees, which will ble of use to busy lawyers. The writer has the utmost confidence that the work will be found a useful one, because it contains no ideas of his own; rather a digest of the decisions, and statements of the reasons therefor, when such statements are given, in the [«] X PREFACE. words, as nearly as may be, of the court giving them utter- ance. There is here brought together, in a more or less systematic manner, the authorities upon points which are likely to arise in one's: daily, pnactiqe. Street railroads are creatures of the statute, and yet the statutes of the several States upon the subject are so similar in substance that a decision in any State, is useful to the practitioner in any other State. Without further, comment the work is placed before the profession for its approval. ANDREW J. NELLIS. Johnstown, N. Y., June i, 1903. TABLE OF CONTENTS. VOL. I. CHAPTEB I. The Right to Construct and Operate Street Surface Railroads; How Granted and Controlled by the Legislature. Section 1. What are street railroads. 2. As affected by statutes. 3. Distinguished from railroads. 4. Use and not motive power determines. 5. Location not confined to streets. 6. Legal status of street railroads. 7. To whom right to operate may be granted. 8. Character of public streets and highways. The Charter. 9. A delegation of sovereign authority. 10. Organization of corporation. 11. Conditions prescribed by constitution or annexed to grant — Time limit of grant. 12. Authority delegated only for public use. 13. The delegated authority cannot be implied. 14. Curative acts validating exercise of authority. 15. Charter a contract — How construed. 16. Amendment or repeal of charter. 17. Forfeiture or annulment of charter. 18. Legislative control of streets. CHAPTER H. The Franchise: How Acquired; How Limited. Section 19. Franchise- defined — Its character — Classification. 20. Its character continued — How distinguished from charter or license. 21. Power of municipality to grant — Generally. 22. Granting of franchise a legislative function. 23. Extent of municipal power — Limitations. [xi] Xll TABLE OF CONTENTS. Section 24. Rules as to extent of power further considered and illustrated. 25. Grant of right in streets dedicated, but not accepted by munici- pality. 26. Municipal powers — Exclusive rights. 27. Municipality cannot by grant exclude public from street. 28. Grant of franchise pending injunction suit to restrain. 29. Certificate of public convenience and necessity. 30. Consent of local authorities. 31. Consent of local authorities — Where statute authorizes change of motive power. 32. Consent of local authorities — Consent of abutting owners » con- dition precedent. 33. Consents of abutting property owners. 34. Consents of abutting owners — Basis of foot frontage — Sufficiency of. 35. Consents of abutting owners — Signing of. 36. Consents of abutting owners — Giving of consideration for. 37. Consents of abutting owners — Agreement to procure for con- tingent fee. 38. Bids for franchises. 39. Bids for franchise — Lowest rate of fare — Void limitation m consent of abutting owner. 40. Extensions. 41. Extensions — Obligation as to construction. 42. Extensions — Conditions in franchise. 43. Proceedings if property owners do not consent. 44. Proceeding without consent — How prevented. 45. When consents may be presumed. CHAPTER III. The Franchise Continued: Conditions; Limitations; Rights. SECTION 46. Conditions imposed with consents — Generally — Rights of the grantee and of the public thereunder. 47. Conditions imposed — As to reasonableness of. 48. Conditions imposed — That ultra vires no defense. 49. Conditions imposed — Impossibility of performance. 50. Conditions imposed — Time of completion of road. 51. Conditions imposed — Filing applications — Specifications. 52. Conditions imposed — Bates of fare. 53. Conditions imposed — Transfers. 54. Conditions imposed — As to paving — Grading. 55. Conditions imposed — As to tracks — Switches. 56. Other particular conditions. 57. Acceptance of franchise. 58. Rights under franchise — Generally. 59. Rights under franchise — Implied powers. 60. Rights under franchise — How and by whom questioned. 61. Conflicting grants or franchises. TABLE OF CONTENTS. Xlll Section 62. Sale or lease of franchise or property. 63. Sale or lease — Under statutes. 64. Sale or lease — Validity of. 65. Sale or lease — Rights and duties under. 66. Sale or lease — Fraud on stockholder — Action to enjoin. 67. Sale by receiver — Statute as to — Rails personal property. 68. As to mortgages. 69. Sale or lease — Rights of mortgagee. 70. Abandonment or revocation of franchise. 71. Expiration of franchise and renewal. 72. Forfeiture. 73. Forfeiture — How waived. 74. Forfeiture — Whether clause as to is self-executing. 75. Forfeiture — Who may raise question of. 76. When specific performance of contract for mutual co-operation in securing franchise will be refused. CHAPTER IV. Rights in Streets; Abutting Owners. SECTION' 77. Unauthorized use of highway a nuisance — Remedies for. 78. Same subject — As affecting abutting owners. 79. Rights of public in streets. 80. Rights of abutting owners in streets. 81. Encroachments on highway by abutting owner — Rights of rail- way company to remove. 82. Street railway not additional servitude. 83. Railway in street — Carrying of freight. 84. Interurban railways — Whether additional servitude. 85. Rule as to street railways applicable to subways. 86. Taking of abutting owners' property — Rule in New York. 87. Remedies of abutting owners — Injunction. 88. Remedies of abutting owners — Injunction — Parties. 89. Remedies of abutting owners — Injunction — Acquiescence — Laches. 90. Remedies of abutting owners — Damages. 91. Discharge of surface water on land of abutting owner. CHAPTER V. Acquisition: Eminent Domain; Securing Use of Other Tracks, Crossings, Bridges, Etc. SECTION 92. Eminent domain. 93. Eminent domain — Purposes for exercise of power — Grant of strictly construed. 94. Eminent domain — Power exercised only for public purpose. 95. Eminent domain — Words "necessity" and "necessary" in statute construed. XIV TABLE OP CONTENTS. Section 96. Eminent domain — Statute as to — Street railway companies. 97. Proceedings to ascertain compensation. 98. Compensation. 99. Compensation — Benefits. 100. Compensation — Rights of mortgagee of property. 101. Consolidation. 102. Consolidation — Eights and liabilities. 103. Consolidation — Municipal consent — Contract — Extension of franchise. 104. Use of tracks of other roads and traffic arrangements. 105. Traffic arrangements continued. 106. Same subject — Compensation. 107. Contract for power — Enforcing of. 108. Crossing other tracks. 109. Crossing other tracks — Statutes. 110. Crossing other tracks — Statutes as to avoiding when reason- ably practicable. 111. Crossing other tracks — Application to railroad commissioners. 112. Crossing other tracks — Validity of agreement as to. 113. Use of turnpikes, bridges, etc. 114. Motive power. 115. Motive power — Statutes strictly construed. 116. Motive power — Change of — Statutes. CHAPTER VI. Regulation and Construction Generally. Section 117. General power of municipality to regulate. 118. Reasonableness of municipal ordinances. 119. Municipal powers — Ordinance increasing penalty — Requiring lowering of railway tunnel under river. 120. Power to " regulate " considered. 121. How power usually conferred and exercised. 122. Reports — License fees and percentages to municipality. 123. Location of track. 124. Location of track — Right to depart from that fixed. 125. Construction of roadbed and track. 126. Construction of turnouts and switches. 127. Word " turnout " defined and considered. 128. Requiring railway to change its grade. 129. Location of poles. 130. Remedies for unauthorized or defective construction — Indi- viduals. 131. Remedies for unauthorized or defective construction In be- half of public. 132. Construction and maintenance — How enforced. 133. Placing electrical conductors underground. 134. Lessee's or transferee's liability. TABLE OF CONTENTS. XV CHAPTER VII. Regulations as to Operation. SECTION 135. Regulation as to servants. 136. Regulation — Screens for motormen. 137. Regulation as to rate of fare. 138. Regulation as to tickets — Reduced rate tickets. 139. Regulation as to transfers. 140. Regulation as to fares and transfers — New York statute. 141. Regulation as to fares and transfers — New York statute con- tinued. 142. Regulation as to separation of races. 143. Regulation as to care and manner of running cars generally. 144. Regulation as to speed. 145. Regulation as to stopping cars before crossing intersecting streets or tracks. 146. Regulation — Stopping for passengers. 147. Stopping cars — Ordinance as to proceeding to punish for vio- lation of not enjoined. 148. Regulation — Keeping vigilant watch. 149. Regulation as to brakes. 150. Regulation as to fenders. 151. Regulations as to care of streets — Removing dirt, snow and ice, etc. 152. Regulation — Watering of tracks. 153. Regulation — Use of salt and ashes. CHAPTER VIII. Regulations as to Paving; Repairs. Section 154. Paving and repairing — Generally. 155. Paving and repairing — Duty as to continued. 156. Paving and repairing — Particular acts and ordinances — Con- strued. 157. Duty as to adjusting roadbed — Laying new pavements. 158. Paving and repairing — Obligation assumed by city. 159. Paving and repairing — Power of legislature to alter provision in franchise as to. 160. Paving — Contract between company and abutting owner. 161. Repairs. 162. Repair of bridges. 163. Liability of company for neglect to repair — How enforced. CHAPTER IX. Taxes; Special Assessments; License Pees. SECTION 164. Legislative power to tax. 165. Municipal power to tax. 166. Uniformity required by Constitution. XVI TABLE OF CONTENTS. SECTION 167. Exemption from taxation. 168. Exemption must be in clear terms. 169. Commutation for taxes. 170. Taxation of tangible property. 171. Taxation of same railroad in different municipalities. 172. Taxation of capital stock. 173. Taxation of franchise. 174. Taxation of franchise — Under particular statutes. 175. Taxation of earnings. 176. License fees. 177. License fees as exemption from taxes. 178. Effect of consolidation, transfer, or leasing. 179. Special assessments. 180. Rights of one who pays taxes on request of company — Bights of mortgagee. CHAPTER X. Elevated Railways. SECTION 181. Nature of right in street — Story case. 182. Easements of abutting owner in street. 183. Easements have only nominal value. 184. Easements of abutting owner — Acquiring of by prescription. 185. Easements of abutting owner — Acquiring of by prescription — As against infants. 186. Money paid for easements is paid for interest in lands — (Joes to heirs. 187. Vaults under sidewalk — Property of abutting owner in — Damages. 188. Grant of franchise to construct — Construction of — Plan for railway — Conditions. 189. Consent of abutting owner. 190. Consent of abutting owner — Signing of. 191. Consent of city. 192. As to exercising power of eminent domain. 193. Eminent domain — Non-compliance with charter provisions no defense. 194. Act requiring payment of per cent, of earnings construed. 195. Injunction. 196. Injunction — Damages as alternative. 197. Injunction — Damages as alternative — Property subject to mortgage. 198. Injunction and damages — Parties generally. 199. Injunction and damages — Permanent depreciation — Death of owner — Interest. 200. Injunction and damages — Death of owner — Effect of devise. 201. Injunction and damages — Tenants in common Where one dies. 202. Injunction and damages — Where property conveyed — Juris- diction. TABLE OF CONTENTS. XV11 Section 203. Injunction and damages — Constitutional provision as to trial by jury not applicable. 204. Injunction — '■ None to protect mere technical right — When granting will cause public or private mischief. 205. Time of seeking remedy as affecting right — Delay — Acqui- escence. 206. Damages — Theory as to right. 207. Who may sue — When premises conveyed. 208. Who may sue — Effect of a reservation by grantor. 209. What is no defense. 210. As injury to inheritance. 211. Lease executed after construction of road. 212. Damages — Eight of lessee — Renewal of lease. 213. Damages — Eight of lessee — Eenewal of lease — Buildings erected. 214. Measure of damages generally. 215. Damages should not be speculative. 216. As to exemplary damages. 217. Damages — Abutting property extending to another street. 218. Measure of damages — Rental value. 219. Eental value — Effect — On entire property to be considered. 220. Eental value — Evidence of rents received. 221. Rental value — Evidence — Opinions. 222. Eental value — Evidence of interference with privacy. 223. Rental value injured — Fee value not. 224. Damages — Noise as an element. 225. Damages — Evidence as to value. 226. Damages — Evidence of general effects upon abutting and other properties. 227. Damages — Evidence of effect — Upon trade and business. 228. Damages — Evidence that road has increased value 229. Damages — Evidence of increase in value of neighboring prop- erty. 230. Damages — Diminished value — Evidence of rent from other property. 231. Damages — Opinion as to value if road had not been built. 232. Damages — Evidence of offer for property. 233. Damages — Evidence as to unlawful use of premises. 234. Damages — Evidence generally. 235. Benefits. 236. Benefits — Judicial knowledge as to. 237. Questions for jury. CHAPTER XI. Accident: Negligence; Proximate Cause. Section 238. Use of terms accident and accident law — Include negligence. 239. Test of liability. 240. Inevitable accident. 241. Negligence defined. XV111 TABLE OF CONTENTS. Section 242. Degrees of negligence. 243. Avoidable accident. 244. Proximate cause defined. 245. Proximate and remote cause considered. 246. When negligence of defendant proximate cause — Instances. 247. When negligence of defendant not proximate cause — Instances. 248. Non-compliance with statutory or municipal regulation. CHAPTER XII. Passengers; Who Are; Relation Between Carrier and Passenger. Section 249. Relation between carrier and passenger. 250. Who are passengers — Generally. 251. Who are passengers — Children. 252. Who are passengers — Persons boarding car. 253. Who are passengers — As to payment of fare. 254. Who are passengers — Persons transferring. 255. Who are passengers — Persons carried free — Riding on passes. 256. Who are passengers — Car run over connecting line. 257. Who are passengers — Employees. 258. Who are not passengers. 259. Commencement of relation. 260. Termination of relation. 261. Termination of relation continued CHAPTER Xm. Passengers; Tickets, Fares and Transfers. SECTION 262. Purchase of tickets. 263. Payment of fare. 264. Payment of fare — Rules and regulations. 265. Payment of fare — Regulations as to amount. 266. Payment of a second fare. 267. Transfers — Ejection of passenger — Damages. 268. Transfers — Where voluntarily given. 269. Transfers — Rights and duties of passengers generally. 270. Transfers — Particular conditions and regulations. 271. Transfers — Conditions as to point to be used at. 272. Transfers — Condition as to time of using. 273. Transfers — Where defective — Ejection. CHAPTER XIV. Passengers; Duties and Liabilities of Street Railway Companies to. Section 274. Care required of carrier in general — Degree of. 275. Care required of carrier continued — Duty to carry safely Reference to existing conditions. 276. Care required of carrier — Operation of car prevented bv Act of God. J TABLE OF CONTENTS. XIX Section 277- Infirm, aged or helpless passengers. 278. Intoxicated persons. 279. Statutes and municipal regulations as basis of liability to pas- sengers. 280. Condition and use of premises, roadbeds and tracks. 281. Same subject — When company liable — Instances. 282. Same subject — When company not liable — Instances. 283. Same subject — Derailment of car. 284. Same subject — Car barns. 285. Condition of cars and appliances — Generally. 286. Cars and appliances — As to brakes. 287. Cars and appliances — Controller — Shocks — Explosions. 288. Cars and appliances — Platforms and steps — Gates. 289. Cars and appliances — Other illustrations of rule. 290. Inspection. 291. Rules and regulations of the carrier — Generally. 292. Particular rules and regulations. 293. Limitation of liability to passengers. 294. Duties of motorman and other employees in the management of cars — Starting and stopping of cars generally. 295. Duties of motorman and other employees in management of cars — Continued. 296. Same subject — Passengers in dangerous position. 297. Duty of employees in looking after safety and comfort of pas- sengers. 298. Management of conveyance — Sudden jerks and jolts. 299. Management of conveyance — Sudden stop — Emergency. 300. Taking up passengers — Place of stopping. 301. Taking up passengers — Starting of car. 302. Taking up passengers continued — Application of rules. 303. Setting down passengers — Generally. 304. Setting down passengers — Duty to assist. 305. Setting down passengers — Starting of car. 306. Setting down passengers — Starting of car — Illustrations. 307. Setting down passengers — Signal to start given by unauthor- ized person. 308. Setting down passengers — Duty as to place. 309. Setting down passengers — Duty as to place — Illustrations. 310. Setting down passengers — Liability of company in particular cases. 311. Protection of passengers from incidental dangers. 312. Ejection of, or refusal to accept, passengers bringing packages, live animals or dangerous weapons into car. 313. Liability of company for overcrowding cars. 314. Liability of company for overcrowding — Rule applied. 315. Riding on platform, running board or steps. 316. Same subject — Distinction between street railways and rail- roads. 317. Same subject — Riding on bumper. XX TABLE OF CONTENTS. Section 318. Same subject — Biding on running board — Liability and duty of company. 319. Same subject — Riding on running board — Duty of passenger. 320. Same subject — Riding on platforms. 321. Same subject — Preparing to alight. VOL. II. CHAPTER XV. Passengers; Duties and Liabilities of Street Railway Companies to. Section 322. Liability as to free passengers — Duty of company. 323. Same subject — Rules applied. 324. Liability as to newsboys. 325. Liability for failure to carry passenger. 326. Passenger carried past destination. 327. Where compelled to transfer — Car ahead. 328. Assault upon passenger by employee. 329. Assault upon passenger by employee — Limitation upon doctrine. 330. Assault upon passenger by employee — Where continued after alighting. 331. Assault upon passenger by employee — Particular cases. 332. Liability for acts of follow passengers or other third persons. 333. Liability for acts of follow passengers or other ihird persons — Application of rules. 334. Same subject — Acts of intoxicated person. 335. In case of strike by company's employees. 336. Intoxicated persons — Ejection of. 337. Liability of carrier for acts of employees in ejecting passengers — Right to eject. 338. Liability of carrier for acts of employees in ejecting passengers — Duty of company. 339. Disposition of articles left in car. 340. Liability for articles lost by passengers. 341. Liability for false arrest of passenger. 342. Injuries to passengers in collisions with cars or other vehicles — Generally. 343. Injuries to passengers in collisions with vehicles. 344. Injuries to passengers in collisions between cars. 345. Injuries to passengers in collisions at railroad crossings. 346. Movement and speed of cars. 347. Violations of statutes or ordinances limiting the rate of speed. 348. Curves and speed thereon. 349. Curves and speed thereon — Decisions. 350. Stairways, halls, platforms and approaches to cars. 351. Stations and platforms — Overcrowding of. 352. Nature of passenger's action for personal injuries. 353. Companies or persons liable — Joint and several liability. TABLE OS 1 CONTENTS. XXI CHAPTER XVI. Passengers; Contributory Negligence. SECTION 354. Care required of passenger in general — General rules. 355. Care required of passenger continued. 356. Care required of passenger — Part of body projecting beyond side of car. 357. Contributory negligence of children. 358. Contributory negligence of infirm persons. 359. Traveling in violation of statute not contributory negligence. 360. Entering conveyance. 361. Entering conveyance continued. 362. Entering conveyance by front platform. 363. Leaving conveyance — Generally. 364. Leaving conveyance — Taking position preparatory to. 365. Leaving conveyance — As to place. 366. Leaving conveyance — Crossing parallel tracks. 367. Sudden peril — Acts in emergencies. 368. Sudden peril — Acts in emergencies — Application of rules. CHAPTER XVII. As to Persons Other Than Passengers and Employees. Section 369. Care required in operation of road. 370. Measure of care due to young and infirm persons. 371. Duty to trespassers. 372. Construction and repair of roadbed, tracks and appliances. 373. Same subject — Duty and liability generally continued. 374. As to switches. > 375. Condition of cars and appliances. 376. Negligence in providing fenders and other guards. 377. Injuries from the use of electricity and electric wires. 378. Injuries from use of electricity and electric wires continued — Application of rules. 379. Interference with telephone or other light current wires. 380. Negligence as to signals and lookout. 381. Duties of motormen, gripmen and other employees. 382. Duties of motormen, gripmen and other employees — Application of rules. 383. Statutes, municipal ordinances and other regulations generally. 384. Statutes and municipal ordinances as to speed. 385. Who liable for injuries. 386. Joint and several liability. 387. Street cars have paramount right of way. 388. Eight of way at street crossings. 389. Right of way over tracks elsewhere than at street crossings. 390. The law of the road as to turning to the right. 391. Obstructions in streets. 392. Obstructing street with cars. XX11 TABLE OF CONTENTS. Section 393. Bate of speed. 394. Rate of speed — Application of rules. 395. Frightening animals. 396. Injuries to bicyclists. 397. Collisions with hose carts, fire engines, ambulances or police patrol wagons. 398. Collision with steam railroad trains. 399. Collision with other cars or trains. 400. Collisions with vehicles. 401. Collisions with vehicles continued — When liable. 402. Collisions with vehicles continued — When not liable. 403. Collisions with animals. 404. Injuries to persons on or near tracks. 405. Injuries to persons on or near tracks — When liable. 406. Injuries to persons on or near tracks — When not liable. 407. Collisions with workmen on the street. 408. Injuries to children generally. 409. Injuries to children — Negligence of company — When liable. 410. Injuries to children — When company not chargeable with neg- ligence. 411. Obstructing street car line by moving of house. CHAPTEE XVIII. Person Using Streets; Contributory Negligence. Section 412. Contributory negligence generally. 413. Contributory negligence generally continued. 414. Contributory negligence of drivers of vehicles in going on or across tracks. 415. Contributory negligence of drivers of vehicles in going on or across tracks — Application of rules. 416. Contributory negligence in driving upon or across tracks with- out looking' or listening. 417. Contributory negligence in driving vehicles on or along tracks. 418. Contributory negligence — Car coming from rear. 419. Contributory negligence of pedestrians in crossing tracks with- out looking or listening. 420. Duty of pedestrians to look and listen — Application of rules. 421 Contributory negligence of pedestrians in going on or across tracks. 422. Contributory negligence of pedestrians — Instances when none. 423. Contributory negligence of pedestrians — Instances of. 424. Contributory negligence of pedestrians in standing on or near tracks or walking along tracks. 425. Contributory negligence of workmen in the public streets. 426. Contributory negligence of bicyclists. 427. Contributory negligence of drivers and occupants of hose carts, ambulances, etc. TABLE OF CONTENTS. XX1U Section 428. Contributory negligence of children. 429. Contributory negligence of parents, guardians, or custodians. 430. Contributory negligence of aged and infirm persons. CHAPTER XIX. The Company and Its Employees. Section' 431. Care required of the company. 432. Care required of company — Rules applied. 433. Duty of company to promulgate rules. 434. Relative duties of master and servants. 435. Employer's liability for injuries to servants. 436. Injury to employee while being transported by employer. 437. Injury to employee not on duty. 438. Electrical apparatus and structures. 439. Defective appliances. 440. Delegation of master's duty. 441. Vice-principals and other representatives of master. 442. Selection, employment, and retention of employee. 443. Contracts limiting or releasing liability. 444. Violation of statute or ordinance. 445. Servants of separate masters in same work. 446. Contributory negligence of servants. 447. Contributory negligence of servants continued — Instances. 448. Acts or omissions constituting negligence. 449. Who are fellow servants. 450. Assumption of risk by servants of street railroad company. 451. Particular risks assumed. 452. Particular risks not assumed. 453. Knowledge by servant of defect or danger. 454. Engaging outside of duties. 455. Fellow servants and their negligence. 456. Change by statute of the common-law as to employer's liability. 457. Liability of masters to third persons — For acts of servants or agents. 458. Liability of masters to third persons — For acts of independent contractors. 459. Nature and form of remedy. 460. Liability of company for medical services rendered to injured employees and others. CHAPTER XX. Principles of the Law of Negligence Applicable Generally in Actions against Street Railroad Companies for Personal Injuries. Section 461. Comparative negligence. 462. Injury avoidable notwithstanding contributory negligence — Last clear chance. 463. Where injury avoidable — Continued. XXIV TABLE OB CONTENTS. Section 464. Contributory negligence of parents, guardians, or other custo- dians, imputed to children. 465. Contributory negligence — Proximate cause of injury. 466. Imputed or attributed negligence. 467. Imputed or attributed negligence continued — Application of rules. 468. Liability for negligence of contractors and lessees. CHAPTER XXI. Pleading. Section 469. Pleading negligence of defendant. 470. Pleading negligence — Bepugnancy. 471. Pleading negligence of defendant — Action by passenger. 472. Pleading negligence of defendant — Actions by pedestrians and. others using streets. 473. Pleading negligence of defendants — Injuries to children. 474. Pleading negligence of defendant — Actions by employees. 475. Pleading contributory negligence of plaintiff. CHAPTER XXH. Evidence. Section 476. Actions for injuries to passengers — Admissibility of evidence. 477. Evidence in other actions — When admissible. 478. Evidence in other actions — When inadmissible. 479. Actions for injuries to passengers — Sufficiency of evidence generally. 480. Actions for injuries to passengers — Sufficiency of evidence — Instances. 481. Evidence in other actions — When sufficient. 482. Evidence in other actions — When insufficient. 483. Evidence as to contributory negligence. 484. Issues, proof and variance. 485. Admissibility of ordinances and statutes. 486. Opinion evidence as to rate of speed. 487. Opinion evidence to show time and distance within which vehicle may be stopped. 488. Expert and opinion evidence further considered. 489. Admissibility of declarations or admissions of street railway- employees generally. 490. Declarations or admissions of street railway employees — In- stances when admissible. 491. Declarations or admissions of street railway employees — In- stances when not admissible. 492. Declarations as to injuries or suffering. 493. Declarations as to cause or manner of injury. 494. Intoxication as evidence of contributory negligence. TABLE OF CONTENTS. XXV CHAPTER XXIII. Presumptions. SECTION 495. Presumptions as to negligence. 496. Presumption as to negligence — Instances when it does not arise. 497. Presumptions as to contributory negligence. 498. Presumption arising from instinct of self-preservation. CHAPTER XXIV. Burden of Proof. Section 499. The burden of proving negligence. 500. The burden of proving negligence continued. 501. The burden of proof as to contributory negligence. CHAPTER XXV. Damages. Section 502. Elements and measure of damages for personal injuries. 503. Pain and suffering — Future consequences. 504. Loss of earnings — Impairment of earning capacity. 505. Fright — Mental suffering and anguish. 506. Damages — Ejection of passenger. 507. Injury to married woman. 508. Injury to child. 509. Elements and measure of damages in other actions. 510. Exemplary or punitive damages. 511. Damages not excessive. 512. Damages excessive. 513. Damages reduced. 514. Damages inadequate. CHAPTER XXVI. The Court and Jury. Section 515. Questions for jury generally. 516. Questions for jury — Actions by passengers — Negligence of company. 517. Questions for jury in other actions. 518. Questions for jury — Contributory negligence. 519. Questions for jury — Contributory negligence of passengers. 520. Instructions to jury generally. 521. Actions for injuries to passengers — Instructions to jury. 522. Instructions to jury in other actions. 523. Instructions to jury — Contributory negligence. TABLE OF CASES. A. [References are to Sections.] Aaron v. Second Ave. R. Co., 2 Daly (N. Y.) 127 503 Abbett v. Chicago, etc., R. Co., 30 Minn. 482 501 Abbott v. Johnstown, etc., R. Co., 80 N. Y. 27 467 Abbott v. Kansas Elev. Ry. Co., 121 Mo. App. 582 462 Abbott v. Milwaukee Light, H. & T. Co., 126 Wis. 634 83 Abbott v. Oregon R. Co., 46 Oreg. 549 260 Abel v. Northampton Traction Co., 212 Pa. St. 329 495, 496 Abendroth v. Manhattan Ry. Co., 122 N. Y. 1 86, 209 Aber v. Crescent City R. Co., 44 La. Ann. 1059 363 Abraham v. Myers, 29 Abb. N. C. (N. Y.) 384 30 Ackerman v. Union Traction Co., 205 Pa. St. 477 369 Ackerslott v. Second Ave. R. Co., 40 St. Rep. (N. Y.) 231 511 Ackerstadt v. Chicago Ry. Co., 194 111. 616 355, 616 Adams v. Halifax, City of, 13 N. S. L. R. (1 Russell & Gelder) 344. ... 161 Adams v. Hannibal, etc., R. Co., 71 Mo. 553 367 Adams v. Met. St. Ry. Co., 82 App. Div. (N. Y.) 354 392 Adams v. Met. St. Ry. Co., 60 App. Div. (N. Y.) 188 382, 481 Adams v. Nassau Elec. E. Co., 51 App. Div. (N. Y.) 241 382 Adams v. Nassau Elec. R. Co., 41 App. Div. (N. Y.) 334 410 Adams v. Railroad Co., 74 Mo. 553 491 Adams v. Union Ry. Co., 80 N. Y. Supp. 264 495 Adams v. Union Ry. Co., 21 R. I. (Part 1 ) 137 134, 263 Adams v. Washington & G. R. Co., 24 Wash. L. R. 634 496 Adams v. Washington & G. R. CO., 9 App. D. C. 26 298, 315, 495 Adams v. Wilmington & N. C. Elec. Ry. Co., 3 Penn. (Del.) 512. .380, 389, 502 Adams v. Yazoo & M. V. R. Co., 77 Miss. 194 101 Adams Express Co. v. Commonwealth of Kentucky, 166 U. S. 171, 180. . . 174 Adams Express Co. v. Ohio State Auditor, 166 U. S. 185 173 Adams Express Co. v. Poe, 61 Fed. 470 166 Adamson v. Nassau El. Ry. Co., 89 Hun (N. Y.) 261 18, 22, 38 Addis v. Union Elevated R. Co., 203 111. 567 181 Adee v. Nassau Electric R. Co., 65 App. Div. (N. Y.) 529, 580 33, 44 Adkins v. Atlantic & C. A. Ry. Co., 27 S. C. 71 460 Adolph v. Central Park, N. & E. R. Co., 76 N. Y. 530 387, 402, 460 Adolph v. Central Park, N. & E. R. Co., 65 N. Y. 554 387 /Etna Ins. Co. v. Boone, 95 U. S. 130 245 Africa v. Knoxville, (C. C. E. Tenn.) 70 Fed. 729 15, 40, 61, 70 Agnew v. Brooklyn City R. Co., 20 Abb. N. Cas. (N. Y.) 235 472 [xxvii] XXV111 TABLE OF CASES. [References are to Sections.] Aiken v. Frankford & S. P. City Pass. R. Co., 142 Pa. St. 47 320, 354 Aiken v. Holyoke St. Ry., 184 Mass. 269 324 Aiken v. Holyoke St. Ry. Co., 180 Mass. 8 382, 457, 517 Aiken v. Southern Pac. Co., 104 La. 162 290 Ainley v. Manhattan R. Co., 47 Hun (N. Y.) 206 507 Akersloot v. Second Ave. R. Co., 131 N. Y. 599 294 Alabama & V. R. Co. v. Hanes, 69 Miss. 160 484 Alabama, etc., R. Co. v. Chapman, 80 Ala. 615 244 Alabama City G. & A. Rf . Co. v. Bates, 155 Ala. 347 241, 258 Alabama G. 0. R. Co. v. Arnold, 80 Ala. 600 244 Alabama G. S. R. Co. v. Burgess, 119 Ala. 555 512 Alabama G. S. R. Co. v. Hill, 93 Ala. 514 274 Albany v. Watervliet, etc., Co., 45 Hun (N. Y.) 442 125 Albany v. Watervliet Turnpike & R. Co., 108 N. Y. 14 125 Albert v. Albany R. Co., 154 N. Y. 780 464 Albert v. Boston Elev. Ry., 185 Mass. 210 324 Albright v. Cedar Rapids & T. C. Ry. & L. Co., 133 Iowa 644 91 Alcott v. Public Service Corp. of N. J., (N. J. L.) 71 Alt. 45 374 Alden v. N. Y. Cent. R. Co., 26 N. Y. 102 290 Aldis v. Union Elevated R. Co., 203 111. 567 214 Aldrich v. St. Louis Transit Co., 101 Mo. App. 77, 74 S. W. 141. .369, 405, 462, 465 Alexander v. Rochester City & B. R. Co., 128 N. Y. 13 343, 380 Alexander & W. Ry. Co. v. Brown, 17 Wall. (U. S.) 445 476 Alldred v. W. Met. Trans. Co., (C. A.) (1891) 2 Q. B. 398 ,161 Alleghany Val. R. Co. v. School Dist., (C. P. Pa.) 29 Pittsb. L. J. (N. S.) 314 170 Allen v. Buffalo R. & P. Ry. Co., 151 N. Y. 434 372 Allen v. Dry Dock, etc., R. Co., 2 N. Y. Supp. 738 290 Allen v. Holyoke St. Ry. Co., 184 Mass. 269 349 Allen v. Linden & S. W. R. Co., L. R. 6 Q. B. 65 341 Allen v. McKean, 1 Sumn. (N. Y.) 276 16 Allen v. Millard, 57 Pa. St. 374 499 Allen v. St. Louis Transit Co., 183 Mo. 411 318 Allen v. United Traction Co., 67 App. Div. (N. Y.) 363 289 Allyn v. Boston & Albany R. Co., 105 Mass. 77 499 Almand v. Atlanta Consol. St. Ry. Co., 108 Ga. 417 23, 07 Altemeier v. Cincinnati St. R. Co., 4 Ohio N. P. 224 241, 253 Alton, etc., Ry. Co. v. Dietz, 50 111. 210 372 Alton Light & Traction Co. v. Oliver, 217 111. 15 313, 519 Alton Ry. & Gas Co. v. Web, 219 111. 563 363 Altreuter v. Hudson R. Co., 2 E. D. Smith (N. Y.) 151 390 American Bank Note Co. v. New York Elevated R. Co., 129 N. Y. 252 183, 184, 196, 214, 230 American Express Co. v. Smith, 33 Ohio St. 000 238 American Rapid Tel. v. Hess, 125 N. Y. 641, 646 133 American Storage & Mov. Co. v. St. Louis Transit Co., 120 Mo. App. 410. 401 Ames v. Broadway, etc., R. Co., 56 N. Y. Super. Ct. 000 464 Ames v. People, Temple, 26 Colo. 83 178 Ames v. Union St. R. Co., 117 Mass. 541 3 52 Ames v. Union Co., 17 Oreg. 600 97 TABLE OF CASES. XX1S [References are to Sections.] Ames v. Waterloo, etc., B. T. Co., (Iowa) 95 N. W. 161 498 Amiek v. O'Hara, 6 Blatchf. (Ind.) 258 241 Anacosta & P. River R. Co. v. Klein, 24 Ky. L. Rep. 117 301 Amsterdam, J. & G. R. Co., Matter of, 86 Hun (N. Y.) 578, 584 29 Anderson v. Brooklyn H. R. Co., 32 App. Div. (N. Y.) 266 4GG Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95 501 Anderson v. Citizens' St. Ry. Co., 12 Ind. App. 194 305, 313 Anderson v. City Suburban R. Co., 42 Oreg. 555 355, 516 Anderson v. Electric Light Co., 63 N. J. L. 387 377 Anderson v. Manhattan R. Co., 1 Misc. Rep. (N. Y.) 504 481 Anderson v. Met. St. R. Co., 30 Misc. Rep. (N. Y.) 104 380, 402, 461 Anderson v. Minneapolis St. Ry. Co., 42 Minn. 490 381, 408 Anderson v. Missouri Pac. Ry. Co., 96 Mo. 442 250 Anderson v. Rome, W. & O. R. Co., 54 N. Y. 334 491 Anderson v. Third Ave. R. Co., 36 App. Div. (N. Y.) 389 301 Anderson v. Union Traction Co., 7 Pa. Dist. Ct. 41 269 Andrews v. Capital City, etc., R. Co., 2 Mackay 000 320 Angell on Limitations, § 196 185 Ann v. Herter, 79 App. Div. (NY.) 6 467 Ansteth v. Buffalo Ry. Co., 145 N. Y. 210 322 Ansteth v. Buffalo Ry. Co., 9 Misc. Rep. (N Y.) 419 322 Appeal of Central Ey. & Elec. Co., 67 Conn. 199 150 Appel v. New York & P. Ry. Co., 63 N. Y. 449 453 Applegate v. West Jersey & S. R. Co., 73 N. J. L. 772 395 App. Tax Ct. v. Union R. Co., 50 Md. 274. : 170 Areata v. Areata & M. R. Co., 92 Cal. 639 86 Archer v. Port Wayne, etc., E. Co., 87 Mich. 101 315 Armstead v. Mendenhall, 83 Minn. 136 387, 481 Armstrong v. Grant, 56 Hun (N. Y.) 226 133 Armstrong v. Metropolitan St. Ey. Co., 165 N. Y. 641 294, 301, 308 Armstrong v. Met. St. E. Co., 36 App. Div. (N. Y.) 525 294, 301, 308 Armstrong v. Met. St. By. Co., 23 App. Div. (N. Y.) 137 480, 496 Armstrong v. Montgomery St. E. Co., 123 Ala. 233 471 Arnold v. Hudson Eiver R. Co., 55 N. Y. 661 86, 205 Arnold v. Rhode Island Co., 28 E. I. 118 267, 268, 270 Arrowsmith v. Nashville, etc., Co., 57 Fed. 165 353 Asbury v. Charlotte Ey, L. & P. Co., 125 N. C. 568 303, 314, 484 Asbury Park & S. G. E. Co. v. Neptune Tp., (N. J. L.) 74 Atl. 998.. 123, 175 Ashbrook v. Federick Ave. E. Co., 18 Mo. App. 290 315 Ashbury, etc., Ey. Co. v. Eiche, L. E. 7 H. L. 653 64 Ashe v. Cummings, 50 N. H. 591 96 Asheville St. Ry. Co. v. Asheville, 109 N. C. 688 72 Ashland St. R. Co. v. Ashland, 78 Wis. 271 123, 128, 372 Ashland & C. St. R. Co. v. Faulkner, 21 Ky. L. Rep. 151 82 Ashley v. Kanawha Valley Traction Co., 60 W. Va. 306 376 Ashtabula Rapid Transit Co. v. Holmes, 67 Ohio St. 168 305 Aspinwall v. Ohio & M. R. Co., 20 Ind. 492 101 Aston v. Transit Co., 105 Mo. App. 226 486 Astor v. Arcada R. Co., 113 N. Y. 93 16 Atchafalaya Bank v. Dawson, 13 La. 497 17 XXX TABLE OF CASES. [References are to Sections.] Atchison v. Goodrich Trans. Co., 60 Wis. 141 238, 244 Atchison v. Havana City & S. E. Co., 91 Ga. 344 323 Atchison v. King, 9 Kan. 550 245 Atchison v. Mallon, 43 N. Y. 147 38 Atchison & N. B. Co. v. Manley, 42 Kan. 577 86 Atchison, etc., R. Co. v. Dickerson, 4 Kan. App. 345, 354 267 Atchison, etc., B. Co. v. Morgan, 31 Kan. 77 461 Atchison, etc., R. Co. v. Smith, 28 Kan. 541 464 Atchison, etc., K. Co. v. Zeiler, 54 Kan. 340 460 Atchison St. Ey. Co. v. Nave, 38 Kan. 744 17, 20, 118 Atchison St. R. Co. v. Missouri Pac. E. Co., 31 Kan. 660, 668 13, 20 Atchison, T. & S. F. E. Co. v. Headland, 18 Colo. 477 323 Atchison, T. & S. F. E. Co. v. Henry, 55 Kan. 715 328, 341 Atchison, T. & S. F. E. Co. v. Flynn, 24 Kan. 627 240 Atchison, T. & S. F. E. Co. v. Hughes, 55 Kan. 491 354 Atchison, T. & S. F. E. Co. v. Matthews, 174 U. S. 96 15 Atchison, T. & S. F. Ey. Co. v. Rancord, (Kan.) 71 Pac. 253 450 Atchison, T. & S. F. R. Co. v. Weber, 33 Kan. 543 277, 336, 358 Atherton v. Tacoma Ey. & P. Co., 30 Wash. 395 393, 517 Atlanta & D. Ey. Co. v. West, 101 Va. 13 431 Atlanta v. Gate City Gas Light Co., 71 Ga. 106 57 Atlanta v. Gate City St. E. Co., 80 Ga. 276 169 Atlanta & F. E. Co. v. Wright, 87 Ga. 487 166, 175 Atlanta & West Point Ey. Co. v. Wyly, 65 Ga. 120 347 Atlanta Consol. St. Ey. Co. v. Atlanta, 111 Ga. 255 154 Atlanta Consol. St. E. Co. v. Bates, 103 Ga. 333 260, 476 Atlanta Consol. St. E. Co. v. Foster, 108 Ga. 223 478, 485 Atlanta Consol. St. R. Co. v. Keeny, 99 Ga. 266 265 Atlanta Consol. St. R. Co. v. Owings, 97 Ga. 663 246, 377, 379 Atlanta, etc., R. Co. v. Wyly, 65 Ga. 120 495 Atlanta Eailway & Power Co. v. Atlantic Rapid Transit Co., 113 Ga. 481 30, 105 Atlanta Eailway & Power Co. v. Bennett, 115 Ga. 879 433 Atlanta Eailway & Power Co. v. Gaston, 118 Ga. 418 240 Atlanta Ey. Co. v. Eandall, 117 Ga. 165 305, 308 Atlantic, etc., E. Co. v. Condor, 75 Ga. 51 328 Atlantic, etc., E. Co. v. Dunn, 19 Ohio St. 162 328 Atlantic, etc., E. Co. v. St. Louis, 3 Mo. App. 315 14, 123 Atlantic, etc., E. Co. v. United States, 76 Fed. 192 137 Atlantic Coast Elec. E. Co. v. Eennard, 62 N. J. L. 773 387, 400, 487 Attorney-General v. Chicago & Evanstown Ey. Co., 112 111. 611 14, 123 Attorney-General v. Chicago, etc., E. Co., 112 111. 520 15, 72 Attorney-General v. Chicago, etc., E. Co., 35 Wis. 602 14 Attorney-General v. Chicago, etc., E. Co., 35 Wis. 425 16, 19 Attorney-General v. Fagan, 22 La. Ann. 545 60 Attorney-General v. Lombard, etc., Ey. Co., 10 Phila. (Pa.) 352 13, 77 Attorney-General v. Metropolitan E. Co., 125 Mass. 515 20 Attorney-General v. Old Colony E., 160 Mass. 87 137 Attorney-General v. Toronto St. Ey. Co., 14 Grant Ch. 673 372 Atwood v. Bangor, O. & O. T. Ey. Co., 91 Me. 399 462, 481 Atwood v. Metropolitan St. E. Co., 25 Misc. Eep. (N. Y.) 758 285 TABLE OF CASES. XXXI [References are to Sections.] Auburn & Western E. Co., Matter of, 37 App. Div. (N. Y.) 162 . 29 Auburn City R. Co., Re, 88 Hun (N. Y.) 603 30 Auditor-General v. Flint & P. M. R. Co., 114 Mich. 682 167 Augusta & S. R. Co. v. Augusta, 100 Ga. 701 11, 71 Augusta & S. R. Co. v. Randall, 79 Ga. 304 493, 507 Augusta, etc., R. Co. v. McBlmurry, 24 Ga. 75 495 Augusta, etc., R. Co. v. Renz, 55 Ga. 126 315 Augusta Ry. Co. v. Andrews, 89 Ga. 653 378 Augusta Ry. Co. v. Glover, 92 Ga. 132 261, 288, 473, 475, 476 Augusta Ry. & Elec. Co. v. Smith, 121 Ga. 29 291 Aurora & G. Ry. Co. v. Harvey, 178 111. 477 95, 96 Austin v. Detroit, Y. & A. A. Ry. Co., 134 Mich. 149 24, 84, 86, 372 Austin v. Vicksburg Traction Co., (Miss.) 50 So. 632 381, 387 Austin Dam & C. R. Co. v. Goldstein, 18 Tex. Civ. App. 704 462 Austin R. T. R. Co. v. Cullen, (Tex. Civ. App.) 29 S. W. 256 473, 481 Austin R. T. R. Co. v. Cullen, (Tex. Civ. App.) 30 S. W. 578 473 Austrian v. United Traction Co., 19 Pa. Super. Ct. 329 302, 516 Auternoitz v. N. Y., N. H. & H. R., 193 Mass. 542 324 Avery v. Galveston, H. & S. A. R. Co., 81 Tex. 243 357 Avery v. New York Cent., etc., R. Co., 121 N. Y. 31 291 Avery v. Vermont Electric Co., 75 Vt. 235 94 Avon-by-the-Sea Land & Imp. Co. v. Neptune City, 57 N. J. L. 701 30 Axelrod v. New York City Ry. Co., 109 App. Div. (N. Y.) 87 501 Aycock v. San Antonio Brewing Ass'n, 26 Tex. Civ. App. 431 1, 7, 82 Aydelott v. Cincinnati, (C. C.) 1 Ohio Dec. 523 30 Ayers v. Camden & S. Ry. Co., 63 N. J. L. 416 395 Ayers v. Rochester Ry. Co., 156 N. Y. 104 240, 349, 350, 496 Ayers v. Village of Hammondsport, 130 N. Y. 665 350 Ayres v. Morris & Essex Ry. Co., 5 Dutcher (N. J.) 393 291 B. Baber v. Broadway S. A. R. Co., 13 Misc. Rep. (N. Y.) 169 480 Bachrach v. Nassau El. R. Co., 35 App. Div. (NY.) 633 294, 301 Backus v. Port St. Union Depot Co., 169 U. S. 568 97 Bading v. Milwaukee Elec. Ry. & L. Co., 105 Wis. 480 507, 511 Bageard v. Consolidated Traction Co., 64 N. J. L. 316 354, 365 Baier v. Camden & S. R. Co., 68 N. J. L. 42 410 Bailey v. Citizens' R. Co., 152 Mo. 449 496 Bailey v. Jourdan, 18 App. Div. (N. Y.) 387 467 Bailey v. Seattle & R. Ry. Co., 32 Wash. 640, 73 Pac. 679 350 Bailey v. Tacoma Traction Co., 16 Wash. 48 315, 355 Bainbridge v. Union Traction Co., 206 Pa. St. 71 319, 364 Baird v. Citizens' R. Co., 46 Mo. 265 380 Baird v. Sheehan, 38 App. Div. (N. Y.) 7 38 Baker v. Backus, 32 111. 79 17 Baker v. Boston Elevated Ry. Co., 183 Mass. 178 224 Baker v. Eighth Ave. R. Co., 62 Hun (N. Y.) 39 410 Baker v. Manhattan Ry. Co., 118 N. Y. 533 346 SXXLl TABLE OF CASES. [References are to Sections.] Baker v. Selma St. & S. Ky. Co., 130 Ala. 474 18 Balder v. Tacoma Ky. & P. Co., 52 Wash. 75 382, 387 Baldwin v. Fort Haven & W. R. Co., 68 Conn. 567 297 Baldwin v. Schenectady By. Co., 118 App. Div. (N. Y.) 441 435 Ball v. Mobile Light & R. Co., 146 Ala. 309 251 Baltimore v. Baltimore, C. & E. M. Pass. E. Co., 84 Md. 1 5, 175 Baltimore v. Baltimore Trust & Guarantee Co., 166 U. S. 673 120, 125 Baltimore v. State, 15 Md. 462 18 Baltimore v. Telephone Co., 92 Md. 692 133 Baltimore & F. Turnpike Road, President, etc., of, v. Baltimore, C. ft E. M. Pass. R. Co., 81 Md. 247 113 Baltimore & Ohio Ry. Co. v. Barger, 80 Md. 23 249, 329, 471 Baltimore & Ohio Ry. Co. v. Butler Passenger Ry. Co., 207 Pa. St. 406. 110 Baltimore & Ohio Ry. Co. v. Camp, 65 Fed. 959, 960 449 Baltimore ft Ohio Ry. Co. v. Cannon, 72 Md. 493 291 Baltimore & Ohio Ry. Co. v. Griffith, 159 U. S. 603 497 Baltimore & Ohio Ry. Co. v. Kane, 69 Md. 11 360 Baltimore & Ohio Ry. Co. v. State, 33 Md. 542 437 Baltimore & Ohio Ry. Co. v. Walker, 45 Ohio St. 577 177 Baltimore ft Ohio Ry. Co. v. Whitacre, 35 Ohio St. 627 501 Baltimore & Ohio Ry. Co. v. Whittington, 30 Gratt. (Va.) 805 475, 501 Baltimore & Susquehanna R. Co. v. Nesbet, 10 How. (U. S.) 395 14 Baltimore 4 Y. Turnpike Road v. Boon, 45 Md. 344 137 Baltimore 4 Y. Turnpike Road v. Leonhardt, 66 Md. 70 292 Baltimore Belt R. Co. v. Baltzell, 75 Md. 94 97 Baltimore, C. & A. R. Co. v. Ocean City, 89 Md. 89 178 Baltimore City Pass. Ry. Co. v. Baer, 90 Md. 97 301 Baltimore City Pass. Ry. Co. v. Cooney, 87 Md. 261 404, 462, 476 Baltimore City Pass. Ry. Co. v. Kemp, 61 Md. 619 244, 245, 352, 507 Baltimore City Pass. Ry. Co. v. McDonnell, 43 Md. 534 248, 347, 357 Baltimore City Pass. Ry. Co. v. Nugent, 86 Md. 349 241, 274, 289 Baltimore City Pass. Ry. Co. v. Wilkinson, 30 Md. 224 224, 312 Baltimore Consol. Ry. Co. v. Armstrong, 92 Md. 554 523 Baltimore Consol. Ry. Co. v. Foreman, 94 Md. 226 364 Baltimore Consol. Ry. Co. v. Pierce, 89 Md. 495 457 Baltimore Consol. Ry. Co. v. Ripcowitz, 89 Md. 338 462 Baltimore Consol. Ry. Co. v. State, 91 Md. 506 385 Baltimore P. R. Co. v. Jones, 95 U. S. 439 241 Baltimore Traction Co. v. Appel, 80 Md. 603 400, 462 Baltimore Traction Co. v. State, Ringgold, 78 Md. 409 259, 277, 302, 358, 362 Baltimore Traction Co. v. Wallace, 77 Md. 435 369, 381, 408, 462 Baltimore Trust G. Co. v. Atlantic Traction Co., 69 Fed. 357 449 Baltimore Trust & G. Co. v. Baltimore, 64 Fed. 153 26 Baltimore, etc., R. Co. v. Breinig, 25 Md. 378 398 Baltimore, etc., R. Co. v. Cason, 72 Md. 377 396 Baltimore, etc., R. Co. v. Kane, 69 Md. 11 364 Baltimore, etc., R. Co. t Marshall, 3 W. Va. 319 14 Baltimore, etc, R. Co. v. McDonnell, 43 Md. 534 464 Baltimore, etc., R. Co. v. State, 62 Md. 479 347 Baltimore, etc., R. Co. v. Whitacre, 35 Ohio St. 627 501 TABLE OF CASES. XXX111 [References are to Sections.] Baltimore, etc., R. Co. v. Whittington, 30 Gratt. (Va.) 809 475, 501 Baltimore, etc., R. Co. v. Wilkinson, 45 Conn. 284 291 Balurn v. Barney, 12 R. I. 392 359 Bancroft v. San Diego, 120 Cal. 432 86 Bane v. Irwin, 172 Mo. 306 449 Bangor, O. & M. E. Co. v. Smith, 47 Me. 34 57 Bangor Township v. Bay City Traction & Electric Co., 147 Mich. 165. .45, 77 Bangs v. Lewiston & A. Horse Co., 89 Me. 194 372 Bank v. Railroad Co., 25 S. C. 216 353 Bank of Augusta v. Earle, 38 U. S. ( 13 Pet.) 519, 595 19 Bank of U. S. v. Dandridge, 25 U. S. (12 Wheat.) 64 57 Banks v. Connecticut By. & L. Co., (Conn.) 64 Atl. 14 '. 489 Bannestein v. New York City Ry. Co., 107 N. Y. Supp. 23 328 Bannett v. Alton, etc., R. Co., 13 111. 504 16 Banta v. Chicago, 172 111. 204 166 Barber v. Essex, 27 Vt. 62 241 Barber Asphalt Pav. Co. v. New Orleans & C. R Co., 49 La. Ann. 1608 . . 154 Barber v. Broadway & S. A. R. Co., 10 Misc. Rep. (N.'Y.) 109 324 Barbier v. Connolly, 113 U. S. 27 15 Bargen v. North Chicago St. R. Co., 54 111. App. 284 471 Bard v. Pennsylvania Traction Co., 176 Pa. St. 97 317, 319 Bardstown & Louisville R. Co. v. Metcalf, 4 Mete. (Ky.) 199 63 Barker v. Central Park, etc., R. Co., 121 N. Y. 31 291 Barker v. "Central Park, N. & E. River Co., 151 N. Y. 237, 238 265, 291 Barksdull v. New Orleans & C. R. Co., 23 La. Ann. 180 357 Barnard v. Philadelphia, etc., R. Co., 60 Md. 555 495 Barnes v. District of Columbia, 91 U. S. 540 8 Barnes v. Shreveport City R. Co., 47 La. Ann. 1218 380, 385, 464 Barnett v. Brooklyn Heights R. Co., 53 App. Div. (N. Y.) 432 140 Baron v. New York City Ry. Co., 52 Misc. Rep. (N. Y.) 581 139, 267 Barre v. Reading City Pass. Ry. Co., 155 Pa. St. 170 322, 357 Barrett v. Markett St. R. Co., 81 Cal. 296 263, 265 Barrett v. Stockton & D, R. Co., 2 M. & G. 134 15 Barrett v. Third Ave. R. Co., 45 N. Y. 628 345, 386 Barrie v. St. Louis Traction Co., 119 Mo. App. 38 462 Barrie v. United Railways of St. Louis Co., 138 Mo. App. 557 63 Barry v. Boston Electric Ry. Co., 194 Mass. 265 447 Barry v. Burlington Ry. & L. Co., 119 Iowa 62, 93 N. W. 68, 95 N. W. 229 462, 481, 487 Barry v. Second Ave. R. Co., 41 St. Rep. (N. Y.) 342 464 Barry v. Second Ave. R. Co., 1 Misc. Rep. (N. Y.) 502 487 Barry v. Third Ave. R. Co., 51 App. Div. (N. Y.) 385 341 Barry v. Union Ry. Co., 105 App. Div. (N. Y.) 520 324, 516 Barry v. Union Traction Co., 194 Pa. St. 576 298, 314, 319 Barth v. Houghton Co. St. R. Co., (Mich.) 93 N. W. 620 496 Barth v. Kansas City Elec. R. Co., 142 Mo. 535 259, 301, 350 Bartley v. Met. St. Ry. Co., 148 Mo. 124 298, 314, 496 Bartley v. Railway Co., 148 Mo. 124 480, 484 Basch v. North Chicago St. R. Co., 40 111. 583 301 Bass v. Chicago, etc., R. Co., 42 Wis. 654 328 Bass v. Chicago & N. W. R. Co., 36 Wis. 450 291 XXXIV, TABLE OF CASES. [References are to Sections.] v. Concord St. Ry. Co., 70 N. H. 170 308, 365, 48a v. Met. St. Ry. Co., 66 App. Div. (N. Y.) 554 • • 517 Bass' Adm'r v. Norfolk Ey. & L. Co., 3 Va. Sup. Ct. Rep. 571. . . .346, 380, 393 Bassau v. Madison El. Ry. Co., 106 Wis. 301 265 Bassett v. Los Angeles Traction Co., 133 Cal. 1 495, 496 Basting v. Brooklyn H. R. Co., 39 App. Div. (N. Y.) 629 480 Bates v. Boston Elevated R. Co., 187 Mass. 328 100 Bath Gas Light Co. v. Claffy, 151 N. Y. 24, 44 64 Battishill v. Humphrey, (Mich.) 23 Am. & Eng. R. Cas. 597 464 Baulec v. New York & H. R. Co., 59 N. Y. 356 375, 442 Bauman v. Ross, 169 U. S. 593 97 Baumgartner v. City of Mankato, 60 Minn. 244 126, 161, 517 Baxter v. St. Louis Transit Co., 198 Mo. 1 SSO- Bay City Line R. Co. v. Hitchcock, 90 Mich. 531 97 Bay Shore, etc., R. Co. v. Harris, 67 Ala. 6 464 Beach v. Parmeter, 23 Pa. St. 197 240 Beacham v. Portsmouth Bridge, 68 N. H. 382 359 Beal v. Lowell & B. St. R. Co., 157 Mass. 444 355 Beard v. C, etc., R. Co., 48 Vt. 101 350 Beardsley v. Minneapolis St. R. Co., 54 Minn. 504 438, 490 Beath v. Rapid R. Co., 119 Mich. 512 492 Beattie v. Detroit United Ry., 158 Mich. 243 274, 275, 302 Beatty v. Metropolitan W. S. El. R. Co., 141 111. App. 92 298 Beaumont Traction Co. v. State, 46 Tex. Civ. App. 576 136 Becker v. Albany R. Co., 35 App. Div. (N. Y.) 46 512 Becker v. Detroit Citizens' St. R. Co., 121 Mich. 580 388, 389, 399 Becker v. Gulf City Street Railway & Real Estate Co., 80 Tex. 475 101 Becker v. Lebanon &. M. St. Ry. Co., 30 Pa. Super. Ct. 546 98 Becker v. Metropolitan Elev. Ry. Co., 131 N. Y. 509 229 Becker v. Van Valkenburgh, 29 Barb. (N. Y.) 319, 324 185 Bedell v. Detroit Y. & A. A. Ry., 131 Mich. 668 382, 462 Bedford, etc., R. Co. v. Rambolt, 99 Ind. 551 495 Beebe v. St. Louis Transit Co., 206 Mo. 419 431 Beekman v. Third Ave. R. Co., 153 N. Y. 144, 154 9, 12, 23, 33, 38, 40 Beem v. Tama & T. Electric Ry. & L. Co., 104 Iowa 563 382, 481 Beers v. Metropolitan St. Ry. Co., 104 App. Div. (N. Y.) 96 366 Beers v. West Side R. Co., 101 App. Div. (N. Y.) 108 476 Beeson v. Chicago, 75 Fed. 880 35 Behen v. St. Louis Transit Co., 186 Mo. 430 305, 474 Behling v. Southwest Pennsylvania Pipe Lines, 160 Pa. St. 359 244 Behr v. Erie R. Co., 69 App. Div. (N. Y.) 416 263 Bell v. Central Electric Ry. Co., 125 Mo. App. 660 298 Bell v. Incorporated Town of Clarion, 113 Iowa 126 498 Bell v. Midland R. Co., 10 C. B. N. S. 287 328 Bellefontaine R. Co. v. Schneider, 24 Ohio St. 670 498 Bellefontaine, etc., R. Co. v. Snyder, 18 Ohio St. 400 464 Belleville v. Citizens' Horse R. Co., 152 111. 171 20 Bellew v. New York W. & C. Traction Co., 47 App. Div. (N. Y.) 447. .44, 78 Bellinger v. N. Y. C. R. Co., 23 N. Y. 42 123 Bell Tel. Co. v. Montreal St. R. Co., (Rap. Jud. Quebec) 6 B. R. 223.. 23, 114 TABLE OF CASES. XXXV [References are to Sections.] Bell Tel. Co. v. Montreal St. R. Co. (Can.) Rap. Jud. Quebec 10 C. S. 162 379 Belt Elec. Line Co. v. Tomlin, 19 Ky. L. Rep. 433 263, 484 Belt Ry. Co. v. Banicki, 102 111. App. 642 242, 457 Beman v. Rufford, 1 Sim (N. S.) 550 64 Bendict v. Goit, 3 Barb. (N. Y.) 459 8 Benedick v. Potts, 88 Md. 52 499 Benedict v. Minneapolis k St. L. R. Co., 86 Minn. 224 319 Bengivenga v. Brooklny H. R. Co., 48 App. Div. (N. Y.) 515 407 Benigan v. New York, L. E. & W. R. Co., 131, 582 433 Benjamin v. Holyoke St. R. Co., 160 Mass. 3 395, 487 Benjamin v. Met. St. Ry. Co., 84 N. Y. Supp. 459 302 Benjamin v. Met. St. Ry. Co., 133 Mo. 274 458 Bennerman v. Q. P., etc., R. Co., 32 Minn. 340 350 Bennett v. Brooklyn H. R. Co., 1 App. Div. . 314, 315, 319 Kramer v. Brooklyn Heights R. Co., 114 App. Div. (N. Y.) 804 319 Kramer v. New Orleans City & L. R. Co., 51 La. Ann. 1689 494 Kramm v. Stockton R. Co., 3 Cal. App. 606 407, 412 Krau v. West Chicago St. R. Co., 75 111. App. 38 314 Kreusen v. Forty-Second St., etc., R. Co., 13 N. Y. Supp. 588 333 Kroeger v. Seattle Elec. Co., 37 Wash. 544 284 Kroner v. St. Louis Transit Co., 107 Mo. App. 41 305 Kruger v. Omaha & C. B. St. Ry. Co., 80 Neb. 490 368 Krulevitz v. Eastern R. Co., 143 Mass. 228 341 Kudik v. Lehigh Valley R. Co., 78 Hun (N. Y.) 492 433 Kuhlen v. Boston & N. St. Ry. Co., 193 Mass. 341 274, 332, 350, 351 Kuhlman v. Metropolitan St. R. Co., 30 Misc. Rep. (NY.) 417 363 Kuhlman v. Metropolitan St. Ry. Co., 29 Misc. Rep. (N. Y.) 773 363 Kuhn v. Knight, 190 N Y. 339 38 Kuhn v. Knight, 115 App. Div. (N. Y.) 837 38 Kuhnen v. Union Ry. Co., 10 App. Div. (N. Y.) 195 380, 501 Kunigunde Ode v. Manhattan Ry. Co., 56 Hun (N. Y.) 199 206 Kunz v. Brooklyn Heights R. Co., 25 Misc. Rep. (N. Y.) 334 104 Cll TABLE OF CASES. [References are to Sections.] L. La Blanc v. Sweet, 107 La. 355 274 Lacas v. Detroit City Ry. Co., 92 Mich. 412 367 La Crosse City R. Co. v. Higbee, 107 Wis. 389 82 Lacy v. Winn, 4 Pa. Dist. Rep. 409 396 Ladd v. Brockton St. Ry. Co., 180 Mass. 454, 62 N. E. 730 447, 451 Laetham v. Fort Wayne & B. I. R. Co., 100 Mich. 297 383 Lafferty v. Third Ave* R. Co., 85 Opp. Div. (N. Y.) 592 511 La Fitte v. Railroad Co., 43 La. Ann. 34 328, 329, 341 Lafflin v. Buffalo & S. W. R. Co., 106 N. Y. 136 350 La Ford v. Detroit Citizens' St. Ry. Co., 131 Mich. 586 311 Lagare v. Union Ry. Co., 61 App. Div. (N. Y.) 202 405 La Grange, etc., R. Co. v. Raney, 7 Coldw. (Tenn.) 420 17 Lahey v. Central Park, etc., R. Co., 22 N. Y. Supp. 380 407 Lahr v. Metropolitan E. Ry. Co., 104 N. Y. 268 181, 182, 206, 209 Laidlaw v. Sage, 158 N. Y. 73 244, 245, 350, 479, 503 Lake v. Cincinnati Inc. P. R. Co., 13 Ohio C. C. 494 318 Lake v. Mulliken, 62 Me. 240 244 Lake Erie & W. R. Co. v. Commissioners of Hancock Co., 63 Ohio St. 23. 92 Lake Erie & W. R. Co. v. Hancock, 15 Ind. App. 104 475 Lake Erie & W. R. Co. v. Matthews, 13 Ind. App. 355 322, 338 Lake Erie, etc., R. Co. v. Arnold, 26 Ind. App. 190 475 Lake Erie, etc., R. Co. v. Christison, 39 111. App. 495 328 Lake Roland Elec. R. Co. v. City of Baltimore, 77 Md. 532 33 Lake Shore & M. S. R. Co. v. Frantz, 127 Pa. St. 297 398 Lake Shore & M. S. R. Co. v. Kelsey, 180 111. 130 355 Lake Shore & M. S. R. Co. v. Mau, 9 Ohio C. C. 173 436 Lake Shore & M. S. R. Co. v. Prentur, 147 U. S. 101, 109 328, 510 Lake Shore & M. S. R. Co. v. Salzman, 52 Ohio St. 558 358, 558 Lake Shore & M. S. R. Co. v. Ward, 135 111. 511 291 Lake Shore, etc., R. Co. v. Miller, 25 Mich. 474 461 Lake St. Elev. R. Co. v. Burgess, 200 111. 628 254, 510 Lake St. Elev. R. Co. v. Burgess, 99 111. App. 499 354, 499, 516 Lake St. Elev. R. Co. v. Johnson, 70 111. App. 413 512 La Londe v. Trans. St. Mary's Traction Co., (Mich.) 108 N. W. 368 486 Lamb v. St. Louis, etc., R. Co., 33 Mo. App. 489 148, 400 Lambert v. Westchester Electric R. Co., 191 N. Y. 248 129 Lambeth v. N. C, etc., R. Co., (N. C.) 8 Am. Rep. 508 363 Lamline v. Houston, etc., R. Co., 14 Daly (ST. Y.) 144 294 Lamm v. Chicago, St. P., M. & O. R. Co., 45 Minn. 71 86 Lammerman v. Detroit Citizens' St. R. Co., 112 Mich. 602 507 Land v. Pittsb. Traction Co., 166 Pa. St. 4 267 Landrigan v. Brooklyn H. R. Co., 23 App. Div. (N. Y.) 43 346, 366 Lane v. Atlantic Works, 111 Mass. 136 244, 347 Lane v. Brooklyn H. R. Co., 85 App. Div. (N. Y.) 85 511 Lane v. Syracuse, 12 App. Div. (N. Y.) 118 372 Lane v. Town of Hancock, 142 N. Y. 510, 516 241 Lang v. Transp. Line Co., 119 Mich. 85 451 I PTipdoTi v. Bowen, 43 Vt. 512 238 TABLE OF CASES. Clll [References are to Sections.] Xangdon v. Mayor, 133 N. Y. 628 230 Lange v. La Crosse & Eastern Ry. Co., 118 Wis. 558 22, 80 Langin v. N. Y. & B. Bridge, 10 App. Div. (N. Y.) 529 309 Langley v. Met. St. Ry. Co., 36 Misc. Rep. (N. Y.) 804 496 Laning v. New York Cent. R. Co., 49 N. Y. 521 451 Lanline v. Houston, etc., Co., 14 Daly (N. Y.) 144 125 Lansing v. Coney Island, etc., R. Co., 16 App. Div. (N. Y.) 146 349 Lansing v. Lansing City El. R. Co., 109 Mich. 123 155 Lepleine v. Morgan's L. & T. B. & S. Co., 40 La. Ann. 661 246 Laponte v. Middlesex R. Co., 144 Mass. 18 320 Laredo El. Ry. Co. v. Hamilton, 23 Tex. Civ. App. 480 163 Larimer & L. St. Ry. Co. v. Larimer St. Ry. Co., 137 Pa. St. 533 77 Larkin v. Railroad, 13 Oreg. 436 353 Larkin v. United Traction Co., 76 App. Div. (N. Y.) 238 517 Larmore v. Crown Point Iron Co., 101 N. Y. 391 352 Laroe v. Northampton St. Ry. Co., 189 Mass. 254 86 Laroube v. Boston & Maine R., 73 N. H. 247 462 Larnmer L. St. R. Co. v. Larrimer St. Ry. Co., 137 Pa. St. 553 130 Larson v. Central R. Co., 56 111. App. 263 369 Laschinger v. St. Paul City Ry. Co., 84 Minn. 333 517 Lasher v. Third Ave. R. Co., 27 Misc. Rep. (N. Y.) 824 266 Latimer v. Metropolitan St. Ry. Co., 126 Mo. App. 70 511 Laufer v. Bridgeport Traction Co., 68 Conn. 475 387, 393, 462, 477 Laughlin v. Grand Rapids St. R. Co., 80 Mich. 154 492 Laughlin v. St. Railway of Grand Rapids, 62 Mich. 220 373 Lauman v. Lebanon Valley R. Co., 30 Pa. St. 42 101 Laurence v. Metropolitan Elev. R. Co., 126 N. Y. 483 233 Laurence Co. v. Newcastle El. St. R. Co., 8 Pa. Super. Ct. 313 113 Laurence v. Scranton Traction Co., 2 Lack. Leg. N. (Pa.) 101 478 Lavigne v. City of New Haven, 75 Conn. 693 372 , Lavin v. Second Ave. R. Co., 12 App. Div. (NY.) 381 410 Lavis v. Newton, (C. C. S. D. Iowa) 75 Fed. 884 70 Lawler v. Hartford St. R. Co., 72 Conn. 74 393, 401 Lawshe v. Tacoma Ry. & P. Co., 29 Wash. 681 267 Lawson v. Metropolitan St. Ry. Co., 166 N. Y. 589 517 Lawson v. Metropolitan St. Ry. Co., 40 App. Div. (N. Y.) 307, 312 381, 400, 463, 517 Lawton v. Steele, 152 U. S. 133 15 Lax v. Firty-Second St., etc., R. Co., 46 N. Y. Super. Ct. 448 2, 316 Lazarus v. Metropolitan Elev. R. Co., 69 Hun (N. Y.) 190 183 Leahey v. Cass Ave., etc., R. Co., 97 Mo. 165 493 Leary v. Boston El. Ry. Co., 180 Mass. 203 282 Leary v. Railroad Co., 173 Mass. 373 302 Lease v. Pennsylvania Co., 10 Ind. App. 47 443 Leavenworth v. Hatch, 57 Kan. 57 467 Leavenworth Elec. R. Co. v. Cusick, 60 Kan. 590 295, 305 Lebin v. Second Avenue Traction Co., 201 Pa. St. 58 297 Lebov v. Consolidated Ry. Co.. 203 Mass. 380.' 324 Ledie v. Lewiston, 62 Me. 468 464 Lee v. Boston El. Pv. Co.. 182 Mass. 454 309 CIV TABLE OE CASES. [References are to Sections.] Lee v. Elizabeth P. & C. J. Ry. Co., 69 N. J. L. 607 36£ Lee v. Market St. Ry. Co., 135 Cal. 393 354, 46a Lee v. Railroad Co., 116 Cal. 97 363 Lee v. Troy Citizens Gas L. Co., 98 N. Y. 115 475- Lee v. Union R. Co., 12 R. I. 33 475, 573 Lee Bank, Matter of, 21 N. Y. 9 16 Leeper v. Texas, 139 U. S. 462 16ft Legan v. Union Ry. Co., 161 App. Div. (N. Y.) 202 381 Lehigh Coal & Nav. Go. v. Inter County St. Ry. Co., 167 Pa. St. 75 24 Lehigh Val. R. Co. v. Bradford Co. Com'rs, (Pa. C. P.) 24 Pa. Co. Ct. 537, 170 Lehmaier, People ex rel. v. Interurban St. Ry. Co., 85 App. Div. (N. Y.) 407 ~ 141 Lehman v. Brooklyn City R. Co., 47 Hun (N. Y.) 355 245 Lehner v. Metropolitan St. Ry. Co., 110 Mo. App. 215 274 Lehr v. Steinway & H. P. R. Co., 118 N. Y. 556 313, 355 Lehrman v. Chambersburg & Gettysburg Electric R., 224 Pa. St. 276 33 Leigh v. Omaha St. R. Co., 36 Neb. 131 432, 439 Lentell v. Boston & Worcester St. R. Co., 202 Mass. 115 80 Lentell v. Boston & Worcester St. Ry. Co., 187 Mass. 445 80 Leonard v. Boston & Albany R., 170 Mass. 318 324 Leonard v. Brooklyn H. R. Co., 57 App. Div. (N. Y.) 125. .274, 285, 290, 367, 511, 516, 521 Lepomte v. Middlesex R. Co., 144 Mass. 18 355- Lesan v. Maine Cent. R. Co., 77 Me. 85 501 Leslie v. Jackson & Suburban Traction Co., 134 Mich. 518, 96 N. W. 580 . 295, 502, 516 Lesser v. St. Louis & S. Ry. Co., 85 Mo. App. 326 291, 522 Leu v. St. Louis Transit Co., 106 Mo. App. 329 360 Levelsmeier v. St. Louis & S. Ry. Co., 114 Mo. App. 412 371 Levenson v. Boston Elev. Ry. Co., 191 Mass. 75 220- Leveret v. Shreveport Belt Line Co., 110 La. 399 290, 300, 308, 350 Levi v. Campbell, (Tex.) 19 S. W. 438 274 Levi v. Lynn, etc., R. Co., 11 Allen (Mass.) 300 1 Levin v. Memphis & C. R. Co., 109 Ala. 332 484 Levin v. New York Elev. R. Co., 165 N. Y. 572 19fr Levin v. Second Ave. R. Co., 12 App. Div. (N. Y.) 381 496 Levin v. Second Ave. Traction Co., 201 Pa. St. 58 322, 357 Levine v. Met. St. Ry. Co., 78 App. Div. (N. Y.) 426 517 Levine v. Nassau Elec. R. Co., 50 Misc Rep. (N. Y.) 552 141, 270 Levison v. Met. St. Ry. Co., 36 Misc. Rep. (N. Y.) 827 406 Levitt v. Nassau Elec. R. Co., 14 App. Div. (N. Y.) 83 513 Levy v. Dry Dock E. B. & B R. Co., 58 Hun (N. Y.) 610 464 Levy v. Dry Dock E. B. & B. R. Co., 12 N. Y. Supp. 485 408 Lewin v. Lehigh Valley R. Co., 41 App. Div. (N. Y.) 89 467 Lewin v. Lehigh Valley R. Co., 52 App. Div. (N. Y. ) 69 467 Levy v. Metropolitan Ry. Co., 34 Misc. Rep. (N. Y.) 220 469 Lewis v. Binghamton R. Co., 35 App. Div. (N. Y.) 12 407 Lewis v. Board of Chosen Freeholders of Cumberland, 56 N. J. L. 416.. 115 Lewis v. Cincinnati St. Ry. Co., 10 Ohio S. & C. P. Dec. 53 144, 384, 412- Lewis v. Emery, 108 Mich. 641 442: TABLE OF CASES. CV [References are to Sections.] Lewis v. Flint R, 54 Mich. 55 245 Lewis v. Houston Electric Co., 39 Tex. Civ. App. 625 259, 360 Lewis v. Long Island R. Co., 162 N. if. 52 297, 342, 382, 466 Lewis v. Long Island R. Co., 32 App. Div. (N. Y.) 627 466 Lewis v. New York & H. R. Co., 162 N. Y. 202 86 Lewis v. Seifert, 116 Pa. St. 628 449 Lewiston & Y. F. R. Co. v. Ayer, 27 App. Div. (N. Y.) 571 97 Lewiston W. & P. Co. v. Asotin Co., 24 Wash. 371 172 Lewke v. Dry Dock E. B. & B. R. Co., 46 Hun (N. Y.) 283 492 Lewyt v. Dry Dock, East Broadway & B. R. Co., 56 Misc. Rep. (N. Y.) 496 273 Lexington & Ohio R. Co. v. Applegate, 8 Dana (Ky.) 289 13 Lexington Ry. Co. v. Cozine, 23 Ky. Law Rep. 1137, 64 S. W. 1148. .328, 510 Lexington Ry. Co. v. Fairs's Admr., 24 Ky. L. Rep. 1443 377 Lexington Ry. Co. v. Herring, 29 Ky. Law Rep. 794 360' Lexington Ry. Co. v. Laden's Adm'r, 32 Ky. Law Rep. 1047 408 Lexington Ry. Co. v. O'Brien, 27 Ky. Law Rep. 336 510 Leyh v. Newburgh El. Ry. Co., 168 N. Y. 667 289 Leyh v. Newburgh El. Ry. Co., 41 App. Div. (N. Y.) 218 2S'J Lezensky v. Met. St. Ry. Co., 88 Fed. 437 457 Lezensky v. Met. St. Ry. Co., 59 U. S. App. 88 341 Libby v. Maine Cent. R. Co., 85 Me. 34 290, 332 Lickens v. Staten Island M. R. Co., 64 App. Div. (N. Y.) 327 401, 484 Liddy v. St. Louis R. Co., 40 Mo. 506, 509 148, 347, 400, 408 Lifschitz v. Dry Dock, etc., R. Co., 67 App. Div. (N. Y.) 602 464 Light v. Harrisburg & M. El. R Co., 4 Pa. Super. Ct. 427 337 Lightcap v. Philadelphia Traction Co., 60 Fed. 212 395 Lilbstrom v. Northern Pac. R. Co., 53 Minn. 461, 55 N. W. 624 497 Lima Ry. Co. v. Little, 67 Ohio St. 91 457 Limburger v. San Antonio R. T. St. Co., 88 Tex. 79 82 Limburger v. San Antonio Rapid Transit R. Co., (Tex. Civ. App.) 22 S. W. 198 90 Lincoln v. Walker, 18 Neb. 247 £01 Lincoln, City of v. Lincoln Street Ry. Co., (Neb.) 97 N. W. 255 163 Lincoln & K. Bank v. Richardson, 1 Me. 79 57 Lincoln R. T. Co. v. Nichols, 37 Neb. 332 395 Lincoln St. Ry. Co. v. Cox, 48 Neb. 807 431, 438, 496 Lincoln St. Ry. Co. v. McClellan, 54 Neb. 672 6, 274, 495 Lincoln St. Ry. Co. v. City of Lincoln, 61 Neb. 109 23, 56, 123, 154 Lincoln Traction Co. v. Heller, 72 Neb. 127 245, 274, 347 Lincoln Traction Co. v. Shepherd, 74 Neb. 369 298, 469, 495, 496, 499 Lincoln Traction Co. v. Webb, 73 Neb. 136 274, 495, 500 Linden Land Co. v. Milwaukee Electric Railway & Light Co., 107 Wis. 493 42, 60, 87, 98 Lindgren v. Omaha St. Ry. Co., 73 Neb. 628 346 Lindsay v. Winn, 3 Pa. St. Dist. Rep. 811 396 Lines v. Winnipeg Elec. St. R. Co., 11 Manitoba 77 395 Link v. Brooklyn H. R. Co., 64 App. Div. (N. Y.) 406 476 Little v. Boston & Maine R. Co., 72 N. H. 502 462 Little v. Grand Rapids Street Ry. Co., 78 Mich. 205 380 ■CV1 TABLE OF CASES. [References are to Sections.] Little v. Hackett, 116 U. S. 366 467 Little v. Superior R. T. R. Co., 88 Wis. 402 ^ 462 Littlejohn v. Railroad Co., 148 Mass. 478 263 Little Rock v. Citizens St. R. Co., (Ark.) 50 Am. & Eng. R. Cas. 456. . . 372 Little Rock, etc., R Co. v. Eubanks, 48 Ark. 460 443 Little Rock & M. R. Co. v. Barry, 84 Fed. 944 244 Little Rock & M. R. Co. v. Hasell, 58 Ark. 454 467 Little Rock Ry. Elec. Co. v. Goerner, 80 Ark. 158 270, 273, 291 Little Rock Ry. & Elec. Co. v. City of North Little Rock, 76 Ark. 48. . . 28 Little Rock Ry. & Elec. Co. v. Dobbins, 78 Ark. 553 250, 275, 511 Little Rock Ry. & Elec. Co. v. Newman, 77 Ark. 599 2 Little Rock Traction & El. Co. v. Dunlap, 68 Ark. 291 376 Little Rock Traction & Elec. Co. v. Kinebro, 75 Ark. 211 274, 305 Little Rock Traction & Elec. Co. v. McCaskill, 75 Ark. 133 246 Little Rock Traction & Elec. Co. v. Morrison, 69 Ark. 289 375,404, 462 Little Rock Traction & Elec. Co. v. Nelson, 66 Ark. 494 251, 277, 323, 357, 478, 491 Little Rock Traction & Elec. Co. v. Walker, 64 Ark. 144 341 Little Rock Traction & Elec. Co. v. Winn, 75 Ark. 529 510 Little Saw-Mill Valley Turnpike or Plank Road Co. v. Federal St. & P. V. Pass. Ry. Co., 194 Pa. St. 144 113 Littman v. Dry Dock E. B. & B. R. Co., 6 Misc. Rep. (N. Y.) 34.' 319 Livingston v. Bishop, 1 Johns (N. Y.) 290 38 Livingston v. Metropolitan Elev. R. Co., 138 N. Y. 76. 183, 235 Lobner v. Metropolitan St. Ry. Co., 79 Kan. 811 313 Lockhart v. Craiz St. Ry. Co., 139 Pa. St. 419 11, 46, 82, 114 Lockwood v. Belle City St. R. Co., 92 Wis. 97 461 Lockwood v. Wabash R. Co., 122 Mo. 86 80 Lockyer v. Covert, 25 Ohio Cir. Ct. 486 146 Loftus v. Union Ferry Co. of Brooklyn, 84 N. Y. 455 350 Logan v. Boston Elevated Ry. Co., 188 Mass. 414 224 Logan v. Metropolitan St. Ry. Co., 183 Mo. 582 274, 283 Logan v. Railroad Co., 116 N. C. 940 353 Lokenz v. Metropolitan St. Ry. Co., 72 App. Div. (N. Y.) 181 523 Lomas v. New York City R. Co., 188 N. Y. 628 298 Lomas v. New York City Ry. Co., Ill App. Div. (N. Y.) 332 298, 305 Lonergan v. La Fayette St. Ry. Co., (Ind.) 3 Am. Elec. Cas. 273 18 Long v. Township of Milford, 137 Pa. St. 122 461 Long Lake R. Co., Matter of, 11 App. Div. (NY.) 233 29 Longnecker v. Wichita R. & L. Co., 80 Kan. 413 30, 46, 77, 80, 124 Loofbourow v. Utah Light & R. Co., 33 Utah 480 387, 516 Lookout Inc. & L. L. Ry. Co. v. King, (Tenn. Ch. App.) 59 S. W. 805. .. 174 Looney v. Metropolitan R. Co., 24 App. D. C. 510 62 Looram v. Third Ave. R. Co., 57 N. Y. Super. Ct. 165 507 Lopez de Lopez v. Central Arizona Mining Co., 1 Ariz. 464 ; 475 Lorain Steel Co. v. Norfold & Bristol St. R. Co., 187 N. Y. 500 67 Lorenzen -Ex parte,- 128 Cal. 431 139 Lorickio v. Brooklyn H. R. Co., 44 App. Div. (N. Y.) 628 481, 501 Lorimer v. St. Paul City R. Co., 48 Minn. 391 285 Losee v. Clute, 51 N. Y. 494 290 TABLE OP CASES. CV11 [References are to Sections.] Losee v. Watervliet Turnp. & R. Co., 63 Hun (N. Y.) 404 305, 321 Lothrop v. Steadman, 13 Blatchf. (U. S.) 143 17 Lori v. New Orleans City, etc., K. Co., 37 La. Ann. 337 333 Loudoun v. Eighth Ave. R. Co., 162 N. Y. 380 386, 399, 476, 495, 496 Loudoun v. Eighth Ave. R. Co., 16 App. Div. (N. Y.) 152 399, 476, 495 Louisiana v. Heydenhain, 42 La. Ann. 483 143 Louisiana v. Wood, 102 U. S. 294 64 Louisiana Met. Ins. Co. v. Tweed. 7 Wall. (U. S.) 44 244 Louisville A J. Ferry Co. v. Nolan, 135 Ind. 60 332 Louisville A N. R. Co. v. Barboursville, 20 Ky. L. Rep. 1105 170 Louisville A N. R. Co. v. Bell, 100 Ky. 203 293 Louisville & N. R. Co. v. Bowling Green Ry. Co., 110 Ky. 788.. 11, 109, 111 Louisville & N. R. Co. v. Finn, 16 Ky. L. Rep. 57 332 Louisville A N. R. Co. v. Fitzpatrick, 129 Ala. 322 403 Louisville A N. R. Co. v. Hale, 19 Ky. L. Rep. 1651 277 Louisville A N. R. Co. v. Hunt, 101 Ala. 34 484 Louisville A N. R. Co. v. Kelly's Admx., 100 Ky. 421 510 Louisville A N. R. Co. v. Logan, 88 Ky. 232 337 Louisville A N. R. Co. v. McEwan, 17 Ky. L. Rep. 406 332 Louisville A N. R. Co. v. Mobile J. A K. Co. R. Co., 124 Ala. 162... 13, 23 Louisville A N. R. Co. v. Weaver, 108 Ky. 392 436 Louisville A Portland R. Co. v. Louisville CityRy. Co., 2Duv. (Ky.) 175, 3 Louisville Bagging Mfg. Co. v. Central Pass. R Co., 95 Ky. 50 82, 87, 116 Louisville Bagging Mfg. Co. v. Central Passenger Ry. Co., (Ky. 1890) 3 Am. Electl. Cas. 236 116 Louisville City R. Co. v. Central Pass. R. Co., 87 Ky. 223 15, 104 Louisville City Ry. Co. v. Hudgins, 124 Ky. 79 388 Louisville City Ry. Co. v. Hudgins, 30 Ky. Law Rep. 316 354, 366 Louisville, etc., R. Co. v. Allen, 78 Ala. 494 495 Louisville, etc., R. Co. v. Bowlds, 23 Ky. L. Rep. 1212 358, 476 Louisville, etc., Ry. Co. v. Buck, 116 Ind. 566 493 Louisville, etc. R. Co. v. Falvey, 104 Ind. 409 461 Louisville, etc., R. Co. v. Fleming, 14 Lea (Tenn.) 128 328, 358 Louisville, etc., R. Co. v. Guthrie, 10 Lea (Tenn.) 432 244 Louisville, etc., R. Co. v. Hall, 87 Ala. 708 350 Louisville, etc., R. Co. v. Johnson, 108 Ala. 62 336 Louisville, etc., R. Co. v. Logan, 88 Ky. 232 336 Louisville, etc., R. Co. v. Nitsche, (Ind.) 45 Am. A Eng. R. Cas. 532... 244 Louisville, etc., R. Co. v. Orr, 84 Ind. 50 501 Louisville, etc., R. Co. v. Sandford, 117 Ind. 265 475 Louisville, etc., R. Co. v. Stommel, 126 Ind. 35 467 Louisville, etc. R. Co. v. Sullivan, 81 Ky. 624 494 Louisville E. A St. L. Consolidated R. Co. v. Miller, 140 Ind. 685 440 Louisville Gas Co. v. Citizens' Gas Light Co., 115 U. S. 683 15 Louisville N. A G. S. R. Co. v. Fleming, 14 Lea (Tenn.) 128 277 Louisville N. A. A C. Ry. Co. v. Boney, 117 Ind. 501 101, 102 Louisville N. A. & C. Ry. Co. v. Taylor, 126 Ind. 126 263 Louisville N. A. A C. Ry. Co. v. Wagner, 153 Ind. 420 450 Louisville N. A. A C. Ry. Co. v. Wolfe, 128 Ind. 347 328 Louisville Ry. Co. v. Blaydes, 21 Ky. L. Rep. 668 381, 396 CV111 TABLE OF CASES. [References are to Sections.] Louisville Ey. Co. v. Commonwealth, 20 Ky. L. Rep. 1509 174 Louisville Ey. Co. v. Eddeir's Adm'r, 29 Ky. L. Rep. 1125 410, 462, 522 Louisville Ry. Co. v. French, 24 Ky. L. Rep. 1278 380 Louisville Ry. Co. v. Hartman's Adm'r, 26 Ky. L. Eep. 1174 519 Louisville Ey. Co. v. Holmes, (Ky.) 117 S. W. 953 406 Louisville Ry. Co. v. Hoskin's Adm'r, 28 Ky. L. Eep. 124 462 Louisville Ey. Co. v. Hulchcraft, 32 Ky. L. Eep. 429 462. Louisville Ey. Co. v. Johnson's Adm'r, 131 Ky. 277, 115 S. W. 207. . .381, 490, 491, 492. Louisville Ey. Co. v. Parke, 96 Ky. 580 261, 274 Louisville Ey. Co. v. Pullman, 30 Ky. L. E. 1025 301 Louisville Ry. Co. v. Eammacker, 21 Ky. L. Eep. 250 305, 308 Louisville Ey. Co. v. Williams, 30 Ky. L. Rep. 493 305, 516 Louisville Ry. Co. v. Will's Admx., 23 Ky. L. Rep. 1961 522 Louisville Trust Co. v. Cincinnati, 76 Fed. 296 23 Louisville Trust Co. v. Cincinnati, 73 Fed. 716 46 Louisville Trust Co. v. Cincinnati, 22 C. C. A. 334 14, 71 Lovett v. Salem & South Darners R., 9 Allen (Mass.) 557.-323, 324, 338, 363 Lowell v. Middlesex Co., 152 Mass. 372 174 Lowery v. Brooklyn City R. Co., 76 ST. Y. 28 163, 372 Lowery v. Manhattan R. Co., 99 N. Y. 158 245, 495 Loyalsock Township v. M. T. R. Co., 7 Pa. Dist. 291 46 L. S. & Mich. So. Ry. v. Bangs, 3 Am. & Eng. E Cas. 426 363 Luby v. Hudson E. R Co., 17 N. Y. 131 491 Lucas v. Met. St. Ey. Co., 56 App. Div. (N. Y.) 405. 313, 349 Lucas v. Michigan "C. E. Co., 98 Mich. 1 337 Lucy v. Chicago G. W. E. Co., 64 Minn. 7 334 Ludeman v. Third Ave. E. Co., 72 App. Div. (N. Y.) 26 480 Ludwig v. Met. St. Ey. Co., 71 App. Div. (N. Y.) 210 378 Lundquist v. Duluth St. E. Co., 65 Minn. 387 419, 455, 456 Lundy v. Second Ave. E. Co., 1 Misc. Rep. (N. Y.) 100 295. Lurie v. Met. St. Ry. Co., 18 Misc. Rep. (N. Y.) 81 396 Lydecker v. St. Paul City R. Co., 61 Minn. 414 472 Lyman v. Railway Co., 114 Mass. 88 400, 412, 462 Lynch v. Metropolitan Elev. Ry. Co., 129 N. Y. 274 196, 203 Lynch v. Met. El. Ry. Co., 90 N. Y. 77 328, 341 Lynch v. Smith, 104 Mass. 52 464 Lyndon v. Georgia Ry. & Elec. Co., 3 Ga. App. 534 296 Lynn v. Southern Pacific Co., 103 Cal. 7 313 Lyons v. Bay Cities Consol. R. Co., 115 Mich. 114 382 Lyons v. Broadway & S. A. R. Co., 32 St. Rep. (N. Y.) 232 328, 337 Lysander v. Syracuse L. & B. R. Co., 51 App. Div. (N. Y.) 617 30, 113 Lyttle v. Chicago & W. M. E Co., 84 Mich. 289 442. M. Maas v. Fauser, 36 Misc. Eep. (N. Y.) 831 39ft Mabry v. City Elec Ry. Co., 116 Ga. 624 506 Mabry v. City Elec. Ry. Co., (Ga.) 42 S. E. 1025 338; Macdonald v. St. Louis Transit Co., 108 Mo. App. 374 309 TABLE OF CASES. C1X [References are to Sections.] MacFeat v. Philadelphia W. & B. R. Co., 5 Del. 52 238, 240 MacGregor v. Rhode Island Co., 27 R. I. 85 502 Machen v. Pittsburg W. E. Pass. Ry. Co., 13 Pa. Super. Ct. 642 305, 516 Mack v. Dry Dock, etc., R. Co., 2 Wkly Dig. (N. Y.) 251 314 Mack v. Railroad Co., 52 S. C. 323, 334 245 Mackey v. Railroad, 185 Mo. 348 353 Macomber v. Nichols, 34 Mich. 212 18 Macon v. Paducah St. Ry. Co., 23 Ky. L. Rep. 46 377 Macon & T. S. Elec. St. R. Co. v. Holmes, 103 Ga. 655 380 Macon & W. R. Co. v. Davis, 27 Ga. 113 461 Macon Consol. St. R. Co. v. Barnes, 113 Ga. 212 274, 280, 485, 511, 521 Macon Consolidated St. R. Co. v. Macon, 112 Ga. 782 123 Macon Ry. & L. Co. v. Vining, 120 Ga. 511 308 Macy v. New Bedford, M. & B. St. Ry. Co., 182 Mass. 291 516 Madigan v. Belin St. Ry. Co., 74 N. H. 303 408 Madigan v. St. Louis Transit Co., 117 Mo. App. 118 338, 511 Magar v. Hammond, 54 App. Div. (N. Y.) 532 328 Magee v. Overshiner, 150 Ind. 127 82 Magee v. Pennsylvania S. V. R. Co., 13 Pa. Super. Ct. 187 386 Maggioli v. St. Louis Transit Co., 108 Mo. App. 416 274 Magrane v. St. Louis & Sub. Ry. Co., 183 Mo. 119 242, 495, 496 Maguire v. Middlesex R. Co., 115 Mass. 239 315, 346 Mahady v. Bushwick R. Co., 91 N. Y. 148 80 Mahan v. Brown, 13 Wend. (N. Y.) 261 352 Mahanoy City, etc., Ry. Co. v. Ashland Borough, 224 Pa. St. 375 157 Maher v. Central Park, etc., R. Co., 39 N. Y. Super. Ct. 155... 295, 302, 315 Maher v. Central Park R. Co., 67 N. Y. 55 294 Maher v. Metropolitan St. Ry. Co., 102 App. Div. (N. Y.) 517 496 Mahon v. N. Y. C. R. Co., 24 N. Y. 658 86 Mahoney v. Met. R. Co., 104 Mass. 73 373 Mahoney v. Philadelphia Rapid Transit Co., 214 Pa. St. 180 365 Mahoney v. Railroad, 63 Me. 68, 69 353 Mahoning Valley S. E. Ry. v. Houston, 29 Ohio C. C. 358 395 Mahoning Valley Ry. Co. v. De Dascale, 70 Ohio St. 179 338, 506 Mahnke v. New Orleans City & L. R- Co., 104 La. 411 161, 281, 309, 366 Mahrle v. Brooklyn, etc., R. Co., 59 App. Div. (N. Y.) 617 481 Maillefert v. Interborough R. T. Co., 50 Misc. Rep. (N. Y.) 160 311, 350 Maine v. Grand Trunk R. Co., 142 U. S. 217 176 Maine v. Railroad Co., (Iowa) 70 N. W. 638 443 Maui v. Railroad, 18 Mo. App. 388 353 Maisels v. Dry Dock, E. B. & B. R. Co., 16 App. Div. (N. Y.) 391 485, 491 Maitland v. Cleveland, etc., R. Co., 4 Ohio L. New. 289 241 Maitland v. Manhattan R. Co., 9 Misc. Rep. (N. Y.) 616 195 Makepeace v. Worden, 1 N. H. 16 ; . . . . 8 Malcolm v. New York Elev. R. Co., 147 N. Y. 308 228 Malcolm v. New York El. Ry. Co., 78 Hun (N. Y.) 616 228 Mali v. Lord, 39 N. Y. 381 341 Maloney v. Natick & C. St. Ry. Co., 173 Mass. 587 161, 373, 383 Mallard v. Ninth Ave. R. Co., 7 N. Y. Supp. 666 408 Malpass v. Hestonville M. & F. Pass. R. Co., 189 Pa. St. 599 319 CX TABLE OF CASES. [References are to Sections.] Mammesburg v. Met. St. R. Co., 62 Mo. App. 562 487 Manchester v. City of Hartford, 30 Conn. 118 8 Mancusco v. Kansas City, 74 Mo. App. 138 353 Mangam v. Brooklyn City R. Co., 38 N. Y. 450 241, 408, 457, 464 Mangan's Adm'r v. Louisville Elec. L. Co., 122 Ky. 476 377 Manhattan v. Merges, 167 N. Y. 539 165 Manhattan v. Merges, 38 App. Div. (N. Y.) 120 165 Mann v. Philadelphia Traction Co., 175 Pa. St. 122 320 Manning v. West End St. R. Co., 166 Mass. 230 496 Manor v. Bay Cities Consol. R. Co., 118 Mich. 1 381 Mantel v. Chicago M. & St. P. R. Co., 33 Minn. 62 487 Manville v. Cleveland & T. R. Co., 11 Ohio St. 417 436 Mapes v. Union Ry. Co., 56 App. Div. (N. Y.) 508 462 Maples v. New York, etc., R. Co., 38 Conn. 557 263 Marble v. Ross, 124 Mass. 44 461 Marble v. Worcester, 4 Gray (Mass.) 395 245, 479 Marcellus Electric R. Co. v. Crisler, 33 Misc. Rep. (N. Y.) 1 97 Marchal v. Indianapolis St. Ry. Co., 28 Ind. App. 133 517 Marcon v. Raleigh & A. A. L. R. Co., 126 N. C. 200 283 Marden v. Railway Co., 100 Me. 41 412 Marion City Ry. Co. v. Buboise, 23 Ind. App. 342 393 Marion St. R. Co. v. Carr, 10 Ind. App. 200 395 Marion St. Ry. Co. v. Shaffer, 9 Ind. App. 486, 36 N. E. 861 315 Market St. R. Co. v. Cent. R. Co., 51 Cal. 583 108 Markey v. Consolidated Traction Co., 65 N. J. L. 82 464, 517 Markowitz v. Dry Dock E. B. & B. R. Co., 12 Misc. Rep. (N. Y.) 412. . 151, 373 Marks v. Rochester, 77 Hun ( N Y. ) 77 449, 457 Marks v. Rochester R Co., 146 N Y. 181 480 Marks v. Rochester Ry. Co., 41 App. Div. (N. Y.) 66 322, 449 Marquette & C. R. Co. v. Taft, 28 Mich. 289 460 Marshall v. Boston & W. St. Ry. Co., 195 Mass. 284 274, 290 Marshall v. Green Bay & W. R. Co., 125 Wis. 96 366 Marshall v. Nashville Ry. & L. Co., 118 Tenn. 254 255 Marshalltown Light, Power & R Co. v. Marshalltown, 127 Iowa 637 159 Martin v. Chicago S. T. & C. R. Co., 47 Mo. App. 452 80 Martin v. Interurban St. Ry. Co., 84 N. Y. Supp. 921 381 Martin v. New York, etc., R. Co., 103 N. Y. 626 493 Martin v. New York Cent. & H. R. R Co., 20 Misc. Rep. (N. Y.) 363. . . 398 Martin v. Second Ave. R. Co., 3 App. Div. (N. Y.) 448 315, 360, 495 Martin v. Third Ave. R. Co., 27 App. Div. (N. Y.) 52 380, 405 Martin v. Tyler, 4 N. Dak. 299 97- Martineau v. Rochester Ry. Co., 81 Hun (N. Y.) 263 144, 384 Martus v. Delaware, L. & W. R. Co., 15 Misc. Rep. (N. Y.) 248 398 Maschek v. St. Louis R. Co., 71 Mo. 276 410 Mashall v. Boston 4 W. St. Ry. Co., 195 Mass. 284 274, 290 Mason v. Boston & N. St. Ry. Co., 190 Mass. 255 315^ 364 Mason v. Brooklyn City, etc., R. Co., 35 Barb. (N. Y.) 373 .' 15 Mason v. Metropolitan St. Ry. Co., 30 Misc. Rep. (N. Y.) 108 400 Mason v. Spencer, 35 Kan. 510 14 TABLE OF CASES. CXI [References are to Sections.] Mason & Perkins v. Post, 105 Va. 494 446, 447 Massell v. Boston Elevated Ry. Co., 191 Mass. 491 322, 324 Massoth v. Delaware & Hudson Canal Co., 64 N. Y. 524, 533 347, 497 Masterson v. Chicago & N. W. Ry. Co., 102 Wis. 571 328, 510 Masterson v. Macon City, etc., R. Co., 88 Ga. 436 363 Mathers v. Cincinnati, 3 Ohio C. C. 551 38 Mathesius v. Brooklyn H. R. Co., 96 Fed. 793 509 Mathieson v. Omaha St. Ry. Co., (Neb.) 92 N. W. 639 485. 486 Mathison v. Staten Island M. R Co., 66 App. Div. (N. Y.) 610 482 Mathison v. Staten Island M. R. Co., 72 N. Y. Supp. 954 336 Matlage v. New York El. R. Co., 58 Hun (N. Y.) 603 86 Matter of Atlantic Avenue Elevated R. Co., 136 N. Y. 292 188 Matter of Brooklyn Elevated R. Co., 125 N. Y. 434 188, 193 Matter of Brooklyn Union Elev. R. Co., 105 App. Div. (N. Y.) 111.... 187 Matter of Kings County Elevated Ry. Co., 112 N. Y. 47 188 Matter of Rochester, Corning & Elmira Tr. Co., 118 App. Div. (N. Y.) 521 29 Matter of Union Elevated R. Co., 113 N. Y. 275 192 Matter of Union Elevated R. Co., 112 N. Y. 61 189, 192 Matteson v. N. Y. Cent R. Co., 35 N. Y. 487 492 Matthews v. Southern Ohio T. Co., 25 Ohio Cir. Ct. 486 82 Mattis v. Philadelphia Traction Co., 6 Pa. Dist. Rep. 94 502 Matz v. St. Paul City R. Co., 52 Minn. 159 315, 355 Maust v. Pennsylvania & M. St. R. Co., 219 Pa. St. 568 77, 89 Maverick v. Eighth Ave. R. Co., 36 N. Y. 378 ' 275, 294, 309 Maxey v. Metropolitan St. Ry. Co., 95 Mo. App. 303 301, 521, 523 Maxwell v. Fresno City Ry. Co., 4 Cal. App. 745.... 260, 274, 303, 308, 516 Maxwell v. Wilmington City R. Co., 1 Marr. (Del.) 199.. 369, 387, 400, 462, 485 May v. Inhabitants of Princeton, 11 Mete. (Mass.) 442 475 Mayer v. Detroit Y. A. A. & J. Ry. Co., 142 Mich. 459 477 Mayor v. Baltimore, etc., R. Co., 21 Md. 50 6 Mayor v. Bleecker Street & Fulton Ferry R. Co., 130 App. Div. (N. Y.) 830 158 Mayor y. Broadway & Seventh Ave. R. Co., 130 App. Div. (N. Y.) 834. . 157 Mayor v. Broadway & Seventh Ave. R. Co., 17 Hun (N. Y.) 242 56 Mayor v. Consolidated Traction Co., 70 N. J. L. 364 176 Mayor v. Cunliff, 2 N. Y. 165 352 Mayor v. Dry Dock E. B. & B. R. Co., 133 N. Y. 104 121, 143 Mayor v. Eighth Ave. R. Co., 118 N. Y. 389 122 Mayor v. Eighth Ave. R. Co., 7 App. Div. (N. Y.) 84 40, 154, 156 Mayor v. Fitch, 9 App. Div. (N. Y.) 452.' 38 Mayor v. Harlem Bridge, Morrisaina & F. R. Co., 186 N. Y. 304 157 Mayor v: HaTlem Bridge, M. & F. R. Co., 100 App. Div. (N. Y.) 257. . . 157 Mayor v. Houston Belt & M. P. Ry. Co., 84 Tex. 581 46, 115, 132 Mayor v. Houston City St. R. Co., (Tex.) 50 Am. & Eng. R. Cas. 280. . . 13 Mayor v. Hudson River Traction Co.. 73 N. J. L. 227 47, 48, 163 Mayor v. Manhattan Ry. Co., 143 N. Y. 1 188, 194 Mayor v. New York & H. R. Co., 139 N. Y. 643 40, 154. 156 Mayor v. New York & H. R. Co., 64 Hun (N. Y.) 635 154, 156 CX11 TABLE OF CASES. [References are to Sections.] Mayor v. New York & H. R. Co., 46 St. Rep. (N. Y.) 349 40 Mayor v. New York & H. R. Co., 10 Misc. Rep. (N. Y.) 417 144, 383 Mayor v. Ninth Ave. R. Co., 130 App. Div. (N. Y.) 839 54 Mayor v. North Jersey St. Ry. Co., 73 N. J. L. 175 63 Mayor v. North Jersey St. Ry. Co., 72 N. J. L. 383 30,- 63, 176 Mayor v. North Jersey St. Ry. Co., 73 N. J. L. 265 139 Mayor v. North Jersey St. Ry. Co., (N. J. S. C. 1909) 73 Atl. 609.. 139, 176 Mayor v. Norwich, etc., R. Co., 109 Mass. 103 16, 20 Mayor v. Ohio, etc., R. Co., 26 Pa. St. 355 115 Mayor v. Oregon ShoA Line Co., 21 Utah 141 274 Mayor v. Second Ave. R. Co., 102 N. Y. 572 155, 161, 163 Mayor v. Second Ave. R. Co., 32 N. Y. 261 56 Mayor v. Third Ave. R. Co., 117 N. Y. 404, 646 56 Mayor v. Third Ave. R. Co., 33 N. Y. 42 56, 176 Mayor v. Twenty-third St. Ry. Co., 113 N. Y. 311 16, 65, 175, 353 Mayor v. W., etc., R. Co., 109 Mass. 103 ., 16 McAdam v. Central Ry. & Elec. Co., 67 Conn. 445 438 McAlan v. Trustees of N. Y. & B. Bridge Co., 56 App. Div. (N. Y.) 629. . 519 McAllister v. People's Ry. Co., 4 Penn. (Del.) 272 274 McAlpin v. Powell, 70 N. Y. 126 352 McAndrew v. St. Louis & S. Ry. Co., 88 Mo. App. 97 405 MeAndrews v. St. Louis & S. Ry. Co., 83 Mo. App. 233 248, 462, 517 McArdle v. Chicago City Ry. Co., 141 111. App. 59 87, 98 McAuley v. Columbus, etc., R. Co., 83 111. 348 14 McBride v. Des Moines City Ry. Co., 134 Iowa 398 397, 478, 485 McBride v. Georgia Ry. & Elec. Co., 125 Ga. 515 259, 274 McBride v. Northern Pac. R. Co., 19 Oreg. 64. 498 McCaffrey v. Twenty-Third St. R. Co., 47 Hun (N. Y.j 402 375 McCaig v. Erie R. Co., 8 Hun (N. Y.) 599 499 McCalle v. Mayor, 3 Head (Tenn.) 317 53 McCambley v. Staten Island M. R. Co., 32 App. Div. (N. Y.) 346... 248, 402 McCambley v. Staten Island M. R. Co., 52 N. Y. Supp. 849 444 McCann v. Consol. Traction Co., 59 N. J. L. 481 395, 457 McCann v. Interurban St. Ry. Co., 117 App. Div. (N. Y.) 188 439 McCann v. Newark & S. O. R. Co., 58 N. J. L. 642 246, 277, 358 McCann v. Sixth Ave. B. Co., 117 N. Y. 505, 510 322, 328 McCarter v. Greenville Traction Co., 72 S. C. 134 250 McCartney v. Chicago, etc., R. Co., 112 111. 611 14, 77 McCauley v. Rhode Island Co., 25 R. I. 558 245 McCauley v. Springfield R. Co., 169 Mass. 311 451 McClain v. Brooklyn City R. Co., 116 N. Y. 459 387, 388 McClary v. Sioux City R. Co., 3 Neb. 44 238, 244, 245 McClean v. Westchester El. R. Co., 25 Misc. Rep. (N. Y.) 383 40, 44, 60 McClellan v. Chippewa Valley Elec. Ry. Co., 110 Wis. 326 ..382. 469 McClelland v. Louisville, etc., R. Co., 94 Ind. 276 336 McColgan v. Baltimore Belt R. Co., 86 Md. 325 86 McConnell v. Atlantic Ave. R. Co., 11 Misc. Rep. (N. Y.) 177 382 McCorkle v. Anheuser-Busch Brewing Ass'n, 107 La. 461 390 McCormack v. Boston Elevated Ry. Co., 188 Mass. 342 519 McCormack v. Nassau Elec. R. Co., 18 App. Div. (N. Y.) 333 468 TABLE OF CASES. CX111 [References are to Sections.] McCormack v. Nassau Elec. Ry. Co., 16 App. Div. (N. Y.) 24 465 McCormick v. Pittsburgh & B. Traction Co., 13 Pa. Super. Ct. 638 521 McCoy v. Cincinnati, etc., R. Co., 13 Fed. 3 6 McCoy v. Railroad Co., 36 Mo. App. 445 353 McCoy v. Milwaukee St. R. Co., 88 Wis. 56 476, 488, 505 McCoy v. Milwaukee St. R. Co., 82 Wis. 215 479 McCracken v. Consol. Traction Co., 201 Pa. St. 378 389 McCready v. Staten Island R. Co., 51 App. Div. (ST. Y.) 338 480 McCruden v. Rochester Ry. Co., 5 Misc. Rep. (N. Y.) 59, 61 79, 86 McCullen v. New York & N. S. Ry. Co., 68 App. Div. (N. Y.) 269 337 McCulloch v. Maryland, 17 U. S. 428 165 McCurdy v. United Traction, 15 Pa. Super. Ct. 29 297, 302 McCurrie v. Southern Pac. Co., 122 Cal. 561 274, 495 McDade v. Washington & Georgetown R. Co., 5 Mackey 144 449 McDaniel v. Highland R. Co., 90 Ala. 64 436 McDermott v. Hannibal & St. Joseph R. Co., 73 Mo. 516 442 McDermott v. Nassau El. R. Co., 85 Hun (N. Y.) 422 33 McDermott v. Severe, 202 U. S. 599 408, 505 McDermott v. Third Ave. R. Co., 44 Hun (N. Y.) 107 487 McDermott v. Warren, Brookfield & Spencer St. Ry. Co., 172 Mass. 197. 59 McDermott v. Warren, etc., Ry. Co., (Mass.) 7 Am. Electl. Cas. 367... 82 McDivitt v. Des Moines St. Ry. Co., 99 Iowa 141 462, 463 McDonald v. Brooklyn H. R. Co., 51 App. Div. (N. Y.) 186 477 McDonald v. Eagle & P. Mfg. Co., 68 Ga. 839 442 McDonald v. Hovey, 110 U. S. 619, 630 185 McDonald v. Kansas City & Independence Rap. Tr. Ry. Co., 127 Mo. 38 . . 355 McDonald v. Metropolitan City R. Co., 93 App. Div. (N. Y.) 238 462 McDonald v. Metropolitan St. Ry. Co., 46 App. Div. (N. Y.) 143 515 McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66, 69 515 McDonald v. Metropolitan St. Ry. Co., 36 Misc. Rep. (N. Y.) 703 513 McDonald v. Metropolitan St. Ry. Co., 75 App. Div. (N. Y.) 559 513 McDonald v. Montgomery St. R. Co., 110 Ala. 161 355, 476, 495, 501 McDonald v. Savannah Elec. Ry. Co., 120 Ga. 49 311 McDonald v. Snelling, 14 Allen (Mass.) 290 244 McDonald v. Toledo Consol. St. R. Co., 74 Fed. 104 151, 395 McDonald v. Toledo Consol. St. R. Co., 43 U. S. App. 79 373 McDonald v. Union Freight R. Co., 190 Mass. 123 2 McDonough v. Boston Elev. Ry. Co., 191 Mass. 509 292, 490, 516 McDonough v. Met. R. Co., 137 Mass. 210 252, 259, 359, 360 McDonough v. Third Ave. R. Co., 95 App. Div. (N. Y.) 311 307 McDougal v. Central R. Co., 63 Cal. 431 501 McEwen v. Atlanta R. & P. Co., 120 Ga. 1003 348 McFarlan v. Orange, etc., Car Co., 37 N. J. Eq. 17 15 McFarland v. Consol. Traction Co., 204 Pa. St. 423 389, 400 McFarland v. Third Ave. R. Co., 29 Misc. Rep. (N. Y.) 121 380, 381, 402 McGary v. West Chicago St. R. Co., 85 111. App. 610 386, 400 McGarry v. Holyoke St. Ry. Co., 182 Mass. 123 263 McGean v. Manhattan Ry. Co., 117 N. Y. 219 222, 230 McGean v. Metropolitan Elev. R. Co., 133 N. Y. 9 208 McGeary v. Eastern R. Co., 135 Mass. 363 , 464 CX]V TABLE OF CASES. [References are to Sections.] McGearty v. Manhattan R. Co., 15 App. Div. (N. Y.) 2 313, 351 McGee v. Consol. St. R. Co., 102 Mich. 107 376, 498 McGhee & Fink, Receivers, etc., v. Reynolds, 117 Ala. 413 267 McGilvray v. West End St. R. Co., 164 Mass. 122 329 McGloin v. Metropolitan St. Ry. Co., 71 App. Div. (N. Y.) 72 515 McGovern v. Interurban Ry. Co., 136 Iowa 13 30* McGowan v. Central Vermont R. Co., 123 N. Y. 280 450 McGraff v. City & S. R. Co., 93 Ga. 312 467 McGrath v. Brooklyn, etc., R. Co., 87 Hun (N. Y.) 310 314, 315 McGrath v. New York, etc., Co., 63 N. Y. 522 347, 495 McGrath v. New York Cent., etc., R. Co., 59 N. Y. 468 398 McGrath v. Street Ry. Co., 66 N. J. L. 312 412 McGraw v. Chicago R. T. & P. Ry. Co., 59 Neb. 397 241 McGregor v. Rhode Island Co., 27 R. I. 85, 60 Atl. 761 469 McGrew v. Stone, 53 Pa. St. 436 : 245 McGuckin v. Western Union, N. Y. & P. R. Co., 77 Hun (N. Y.) 69 436 McGuire v. Interborough Rapid Transit Co., 104 App. Div. (N. Y.) 105. . 350 McGuire v. New Orleans Ry. L. Co., 118 La. 811 495 McHugh v. Manhattan Ry. Co., 88 App. Div. (N. Y.) 554 456 McHugh v. St. Louis Transit Co., 190 Mo. 85 143, 485 Mclnerney v. Denver, 17 Colo. 302 137 Mclntire St. Ry. Co. v. Bolton, 43 Ohio St. 224 44r McKay v. So. Bell Teleph. & Teleg. Co., Ill Ala. 337 379 McKee v. Grand Rapids & R. L. St. Ry. Co., 41 Mich. 274 65 McKee v. St. Louis Transit Co., 108 Mo. App. 470 355, 360 McKeesport v. Citizens' Pass. R. Co., 2 Super. Ct. (Pa.) 249 46 McKeesport v. McKeesport Pass. R. Co., 158 Pa. St. 447 163 McKeever v. Market St. R. Co., 59 Cal. 294 505 McKelvey v. Twenty-Third St. R. Co., 5 Misc. Rep. (N. Y.) 424 479 McKenna v. Brooklyn H. R. Co., 41 App. Div. (N. Y.) 255 503 McKenna v. Brooklyn Union Elev. R. Co., 184 N. Y. 391 207, 208 McKenna v. Brooklyn Union Elev. R. Co., 95 App. Div. (N. Y.) 226. .207, 208 McKenna v. Metropolitan Ry. Co., 112 Mass. 55 372, 374 McKenna v. North Hudson County Ry. Co., 64 N. J. L. 106 512" McKennie v. Charlottesville & A. Ry. Co., (Va.) 63 S. E. 503 158 McKenzie v. United Rys. Co., 216 Mo. 1 371 McKeon v. Cincinnati St. R. Co., 2 Ohio Leg. N. 388. .369, 382, 404, 407, 462 McKeon v. New York, N. H. & H. R., 183 Mass. 271 324 McKeon v. Steinway R. Co., 20 App. Div. (N. Y.) 601 401 McKernan v. Detroit Citizens' St. Ry. Co., 138 Mich. 519 397 McKine v. Michigan C. R. Co., 51 Mich. 601 350- McKinley v. Chicago, etc., Ry. Co., 44 Iowa 314 328 McKinstry v. St. Louis Transit Co., 108 Mo. App. 12 305 McKnight v. Brooklyn H. R. Co., 23 Misc. Rep. (N. Y.) 527 440 McKune v. Railroad Co., 21 Am. & Eng. R. Cas. 539 449 McLain v. Graven, 73 Fed. 627 462 McLamb v. Wilmington & W. R. Co., 122 N. C. 862 245 McLaren v. Pennington, 1 Paige (N. Y.) 102 Iff McLaughlin v. Electric L. Co., 100 Ky. 173 377 McLaughlin v. Manhattan Ry. Co., Ill App. Div. (N. Y.) 254 ,. 48S TABLE OF CASES. CSV [References are to Sections.] McLaughlin v. New Orleans A C. R. Co., 48 La. Ann. 23 382, 410 McLaughlin v. New York City Ey. Co., 106 App. Div. (N. Y.) 1 141 McLaughlin v. Phila. Traction Co., 175 Pa. St. 565 372 McLean v. Burbank, 11 Minn. 277 319 McLean v. Interurban St. Ey. Co., 102 App. Div. (N. Y.) 18 141 McLean v. Interurban St. Ey. Co., 87 N. Y. Supp. 134 267 McMahon v. New York, 33 N. Y. 642 464 McMahon v. New York El. E. Co., 50 N. Y. Super. Ct. 507 350 McMahon v. Northern Cent. Ry. Co., 39 Md. 438 357, 464 McMahon v. Second Ave. E. Co., 75 N. Y. 231 236 McMahon v. Third Ave. E. Co., 47 N. Y. Super. Ct. 282 267 McNamara v. St. Louis Transit Co., 182 Mo. 676 '. 510 McManigal v. South Side Pass. E. Co., 181 Pa. St. 358 402 McManus v. Thing, 194 Mass. 362 324 McMillan v. Federal St. & P. V. Pass. E. Co., 172 Pa. St. 523 337 McNair v. Manhattan E. Co., 123 N. Y. 664 502 McNamara v. Brooklyn City E. Co., 11 Misc. Eep. (NY.) 667 440 McNamara v. St. Louis Transit Co., 182 Mo. 676 511 McNeill v. Durham & C. E. Co., 130 N. C. 256 484 McNulta v. Norgren, 90 111. App. 419 517 MeNulta v. Brooklyn Heights E. Co., 36 Misc. Eep. (NY.) 402 140 McNulty v. Brooklyn Heights E. Co., 31 Misc. Rep. (N. Y.) 674.... 137, 140 McNulty v. Pennsylvania E. Co., 182 Pa. St. 479 436 McPadden v. New York Cent. E. Co., 44 N. Y. 478 240, 290 McQuade v. Manhattan Ey. Co., 53 N. Y. Super. Ct. 91 301 McQuade v. Met. St. Ry. Co., 17 Misc. Rep. (N. Y.) 154. 404 McQuade v. Philadelphia Eapid Transit Co., (Pa. St.) 64 Atl. 327 342 McQuade v. Street Ey. Co., 39 N. Y. Supp. 335 412 McQuerry v. Met. St. Ey. Co., 117 Mo. App. 255 274, 292, 329, 330, 354 McQuillen v. Central Pac. E. Co., 50 Cal. 7 501 McEae v. Met. St. Ey. Co., 125 Mo. App. 562 274, 287, 471, 496 McVay v. Brooklyn, Q. C. & S. E. Co., 113 App. Div. (N. Y.) 724.-238, 247, 314 Mead v. N. Y., etc., R. Co., 45 Conn. 199 14 Mead v. Boston Elec. Ey. Co., 185 Mass. 327 363 Meade v. Brooklyn H. E. Co., 3 App. Div. (N. Y.) 83 513 Mechanics' Bank v. Debolt, 1 Ohio St. 591 169 Mechanicsburgh v. Meredith, 54 111. 84 161 Medbury v. New York & Erie E. Co., 26 N. Y. 564 325 Medcalf v. St. Paul City Ey. Co., 82 Minn. 18 396 Medlor v. Atlantic Ave. E. Co., 36 St. Rep. (N. Y.) 89 295, 314 Meek v. Puma R. Co., 38 Ohio St. 632 248 Meeks v. Eailroad Co., 56 Cal. 513 464 Meesel v. Lynn, etc., E. Co., 8 Allen (Mass.) 234 315 Meibus v. Dodge, 38 Wis. 300 464 Meier v. Penn. R. Co., 64 Pa. St. 225 6 Meisick v. Hartford &, West Hartford H. R. Co., 76 Conn. 11 68, 180 Meitz v. Detroit Ry. Co., 125 Mich. 11 389 Meixell v. Northampton Cent. St. Ry. Co., 7 North. Co. R. (Pa. Orphan Ct.) 274 60 CXV1 TABLE OF CASES. [References are to Sections.] Mele v. Delaware, etc., Canal Co., 14 N. Y. Supp. 630 475 Melhado v. Poughkeepsie Trans. Co., 27 Hun (N. Y.) 99 475 Melton v. Birmingham Ry., L. & P. Co., 153 Ala. 95 260, 326 Memphis v. Berry, 112 U. S. 604, 607 62 Memphis & L. R. Co. v. Eailroad Com'rs, 112 U. S. 609, 621 19 Memphis City E. Co. v. Memphis, 4 Coldw. (Tenn.) 406 13 Memphis, etc., E. Co. v. Eeeves, 10 Wall. (U. S.) 176 245 Memphis, P. P. & B. E. Co. v. State, 87 Tenn. 745 161, 163, 372 Memphis St. Ey. Co. v. Graves, 110 Tenn. 232 267 Memphis St. Ey. Co. v. Haynes, 112 Tenn. 712 347, 462 Memphis St. Ey. Co. v. Kartright, 110 Tenn. 277 369 Memphis St. Ey. Co. v. Morris, 108 Tenn. 632 521 Memphis St. Ey. Co. v. Shaw, 110 Tenn. 467 277, 304, 305, 510 Memphis St. Ey. Co. v. Wilson, 108 Tenn. 618 381 Mendizabal v. New York Cent. & H. E. E. Co., 85 N. Y. Supp. 896 511 Mendoza v. Metropolitan St. Ey. Co., 51 App. Div. (N. Y.) 430 133, 140 Menger v. Laur, 55 N. J. L. 205 461 Mercantile Trust & Deposit Co. v. Collins Pk. & B. E. Co., 102 Fed. 347. 104 Mercantile Trust & Deposit Co. v. Collins Pk. & B. R. Co., 99 Fed. 812. 11 Mercantile Trust Co. v. Texas & Pac. Ey., 51 Fed. 533, 540, 542 137 Mercer County Trac. Co. v. United New Jersey E. & Canal Co., 68 N. J. Eq. 715 109 Mercer County Trac. Co. v. United New Jersey E. & Canal Co., 64 N. J. Eq. 588 32 Merchants' Ins. Co. v. Newark, 54 N. J. L. 138 172 M. E. E. Co. v. Commissioners, 37 N. J. 228 16 Merrick v. Intramontaine E. Co., 118 N. C. 1081 82 Merrigan v. Boston & A. R. Co., 154 Mass. 189 398 Merrill v. Met. St. Ey. Co., 73 App. Div. (N. Y.) 401 275, 306, 476, 521 Merrill Ry. & Lighting Co. v. City of Merrill, 119 Wis. 249 168, 177 Merriman v. Utica Belt Line St. E. Co., 18 Misc. Rep. (N. Y.) 269.. 35, 651 Merritt v. New York, N. H. & H. R. Co., 162 Mass. 326 355 Merritt v. Port Chester, 71 N. Y. 309 33 Merriwether v. Kansas City Cable E. Co., 45 Mo. App. 528 301 Mersch v. Rochester Elec. Ry. Co., 72 Hun (N. Y.) 604 403 Mertz v. Detroit Elec. Ey. Co., 125 Mich. 11 486, 517 Merwin v. Manhattan Ey. Co., 113 N. Y. 659 313, 351 Merwin v. Manhattan Ey. Co., 48 Hun (N. Y.) 608 313, 351 Messenger v. Manhattan Ey. Co., 129 N. Y. 502 206, 222 Messenger v. Pennsylvania R. Co., 37 N. J. L. 531 6 Messenger v. St. Paul City Ry. Co., 77 Minn. 34 385 Metlar v. Middlesex & Somerset Trac. Co., 72 N. J. L. 524 93 Metropolitan City R. Co. v. Chicago, 96 111. 620 130 Metropolitan Ry. Co. v. Collins, 1 App. D. C. 385 491 Metropolitan Ry. Co. v. Falvey, 23 Wash. L. Rep. 53 285 Metropolitan Ry. Co. v. Fowler, (C. A.) 1 Q. B. 165 170 Metropolitan Ry. Co. v. Hammett, 13 App. D. C. 370 389 Metropolitan Ry. Co. v. Jones, 21 Wash. L. Rep. 646 305, 363, 477 Metropolitan Ry. Co. v. Quashall, 22 Wash. L. Rep. 377 320, 355, 495, 496, 497 TABLE OP CASES. CXV11 [References are to Sections.] Metropolitan By. Co. v. Quincy B. Co., 12 Allen (Mass.) 262 104 Metropolitan St. By. Co. v. Arnold, 67 Kan. 260, 12 Pac. 857 465 Metropolitan St. By. Co. v. Chicago, 96 111. 620 10 Metropolitan St. Ry. Co. v. Chicago West Div. R. Co., 87 111. 317 . . 20, 97 Metropolitan St. Ry. Co. v. Hanson, 67 Kan. 256 274 Metropolitan St. Ry. Co. v. Hudson, 113 Fed. 449 502, 521 Metropolitan St. Ry. Co. v. Johnson, 91 Ga. 466 507 Metropolitan St. Ry. Co. v. Johnson, 90 Ga. 500, 18 S. E. 816 478, 507 Metropolitan St. Ry. Co. v. Kennedy, 82 Fed. 158 399, 477 Metropolitan St. Ry. Co. v. Moore, 83 Ga. 453 251 Metropolitan St. Ry. Co. v. Powell, 88 Ga. 601 467 Metropolitan St. Ry. Co. v. Rouch, 66 Kan. 195 522 Metropolitan St. Ry. Co. v. Slayman, 64 Kan. 722 517 Metropolitan St. Ry. Co. v. Walsh, 197 Mo. 392 98 Metropolitan Transit Co., Matter of, 111 N. Y. 588 124 Metropolitan West Side El. Ry. Co. v. Dick, 87 111. App. 40 458 Metropolitan West Side El. Ry. Co. v. Fortin, 203 111. 454 442, 449, 450 Metropolitan West Side Elev. R. Co. v. Kersey, 80 111. App. 301 511 Metropolitan West Side El. Ry. Co. v. Skola, 183 111. 454 441 Metropolitan West Side El. R. Co. v. Skola, 83 111. App. 659 441 Metropolitan West Side El. Ry. Co. v. Stickney, 150 111. 362 99 Metropolitan West Side El. Ry. Co. v. White, 166 111. 375 99 Mettlestadt v. Ninth Ave. R. Co., 4 Robt. (NY.) 377 360, 363 Metz v. St. Paul City R. Co., 88 Minn. 48 498, 522 Mey v. Seattle Electric Co., 47 Wash. 497 412 Meyer v. Brooklyn City R. Co., 10 Misc. Eep. (NY.) 11 487 Meyer v. Brooklyn H. R. Co., 10 App. Div. (N. Y.) 335 267 Meyer v. Johnson, 53 Ala. 237 20 Meyer v. Milwaukee Electric By. & Light Co., 116 Wis. 336 244, 511 Meyer v. Missouri P. R. Co., 2 Neb. 320 240 Meyer v. Second Ave. R. Co., 8 Bosw. (N. Y.) 305 337 Meyer v. Second Ave. R. Co., 21 N. Y. Super. Ct. (8 Bosw.) 305 259 Meyerowitz v. Interurban St. By. Co., 84 N. Y. Supp. 233 302, 480 Meyers v. St. Louis Transit Co., 99 Mo. App. 363 400, 462, 469 Michigan Cent. B. Co. v. Burrows, 33 Mich. 15. . 245 Michigan City v. Boeckling, 122 Ind. 39 86, 467 Mickels v. Eochester City Band, 11 Paige (N. Y.) 118 17 Middlebury Bank v. Edgerton, 30 Vt. 190 19 Middletown, etc., St. By. Co. v. Middletown, etc., El. Ey. Co., 2 Dauph. Co. Eep. 319 113 Middlesex E. Co. v. Boston, etc., B. Co., 115 Mass. 347 64 Midland Elev. Co. v. Stewart, 50 Kan. 378 166 Mikesell v. Durkee, 34 Kan. 509 7, 12 Milds v. Hudson Eiver E. Co., 24 N. Y. 230 501 Millard v. West End St. E. Co., 173 Mass. 512 452 Mill Creek Tp. v. Erie Rapid Transit St. E. Co., 216 Pa. St. 132 49 Mill Creek Tp. v. Erie Rapid Transit St. Ry. Co., 209 Pa. St. 300 50, 52 Miller v. Brooklyn Heights E. Co., 124 App. Div. (N. Y.) 537 260 Miller v. Brooklyn H. E. Co., 18 App. Div. (N. Y.) 177 431 Miller v. Detroit, Y. & A. A. By., 125 Mich. 171 80, 81 CXT111 TABLE OF CASES. [References are to Sections.] Miller v. Green Bay, etc., R. Co., 39 Minn. 169 82 Miller v. Grieme, 53 App. Div. (N. Y.) 276 407 Miller v. Lebanon & A. St. Ry. Co., 186 Pa. St. 190 104, 125, 372 Miller v. Metropolitan St. Ry. Co., 125 Mo. App. 414 298 Miller v. New York, L. & W. R. Co., 125 N. Y. 118 65, 353 Miller v. South Covington & C. St. Ry. Co., 25 Ky. L. Rep. 207 306 Miller v. St. Paul City Ry. Co., 66 Minn. 192 252, 480 Miller v. St. Louis, etc., R. Co., 9 Mo. 389 244 Miller v. St. Louis R. Co., 5 Mo. App. 471 354, 484 Miller v. Truesdale, 56 Minn. 274 493 Miller v. Union Traction Co., 198 Pa. St. 639 410 Miller v. United Rys. & Elec. Co., 108 Md. 84 496 Miller v. Woodhead, 104 N. Y. 471 352 Milhau v. Sharp, 27 N. Y. 611 7, 9, 20 Milhau v. Sharp, 28 Barb. (N. Y.) 228 87 Milhau v. Sharp, 17 Barb. (N. Y.) 435 61, 137 Millie v. Manhattan R. Co., 5 Misc. Rep. (N. Y.) 301 479 Milligan v. Texas & N. O. R. Co., 27 Tex. Civ. App. 600 241 Milliman v. New York Cent. & Hudson R. R. Co., 66 N. Y. 642 336, 494 Mills v. Wilmington City R. Co., 1 Marv. (Del.) 269 241 Millvale Borough v. Evergreen Ry. Co., 131 Pa. St. 1 2 Millville Traction Co. v. Goodwin, 53 N. J. Eq. 448 411 Milwaukee v. Milwaukee A. C. R. Co., 7 Wis. 85 18 Milwaukee & L. W. R. Co. v. Stolze, 101 Wis. 91 97 Milwaukee & St. P. R. Co. v. Ames, 91 U. S. 489, 493, 495 238, 242, 328 Milwaukee El. Ry. & L. Co. v. City of Milwaukee, 87 Fed. 577 137 Milwaukee El. Ry. & L. Co. v. City of Milwaukee, 95 Wis. 39 75, 179 Milwaukee, etc., R. Co. v. Finney, 10 Wis. 388 328 Milwaukee, etc., R. Co. v. Hunter, 11 Wis. 160 501 Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 475 244, 245 Mineral St. Ry. Co. v. Maynard, 5 Ind. App. 372 395 Minersville Borough v. Schuylkill Elec. Ry. Co., 205 Pa. St. 394 42, 104 Minneapolis & St. L. R. Co. v. Minnesota R. Com'rs, 44 Minn. 336 29 Minneapolis & St. L. R. Co. v. Nicolin, 76 Minn. 302 93 Minneapolis & St. Paul Sub. Ry. Co. v. Manitou Forest-Syndicate, 101 Minn. 132 3, 4, 96 Minneapolis Eastern R. Co. v. Minnesota, 134 U. S. 467, 469, 482 137 Minneapolis St. Ry. Co. v. Chicago, M. & St. P. R. Co., 33 Minn. 62 398 Minnick v. Lancaster, etc., R. Co., (Pa. C. P.) 24 Pa. Co. Rep. 312 77 Minot v. Phila., W. & B. R. Co., 85 U. S. 206 171 Minster v. Citizens' R. Co., 53 Mo. App. 276 481 Missouri Furnace Co. v. Abend, 107 111. 44 501 Missouri Pac. R. Co. v. Evans, 71 Tex. 361 336 Missouri Pac. R. Co. v. Foreman, 73 Tex. 311 495, 499 Missouri Pac. R. Co. v. Fox, 56 Neb. 746 461 Missouri Pac. R. Co. v. Johnson, 72 Tex. 95 240 Missouri Pac. R. Co. v. McCally, 41 Kan. 639 501 Missouri, etc., R. Co. v. Sanders, 12 Tex. Civ. App. 5 492 Missouri, K. & T. Ry. Co. v. Flood, (Tex. Civ. App.) 70 S. W. 331 293 Missouri, K. & T. Ry. Co. v. Miller, 8 Tex. Civ. App. 241 354 TABLE OF CASES. CX1X [References are to Sections.] .Missouri, K. & T. Ry. Co. v. Pfinger, (Tex.) 25 S. W. 792 241 Missouri, K. & T. Ry. Co. v. Tinley, 1 Ind. Ter. 275 512 Missimer v. Railroad Co., 17 Phila. 172 355 Mitchell v. Deeds, 49 111. 416 14 Mitchell v. El. Traction Co., 12 Pa. Super. Ct. 472 364 Mitchell v. Metropolitan Elev. Ry. Co., 134 N. Y. 11 199 Mitchell v. Metropolitan Elev. Ry. Co., 56 Hun (N. Y.) 543 199 Mitchell v. Railway Co., 51 Mich. 236 298 Mitchell v. Rochester Ry. Co., 151 N. Y. 107 245, 505, 507 Mitchell v. Rochester Ry. Co., 77 Hun (N. Y.) 607 245 Mitchell v. Rochester R. Co., 4 Misc. Rep. (N. Y.) 575 244 Mitchell v. Tacoma R. & M. Co., 9 Wash. 120 380, 404 Mitchell v. Third Ave. R. Co., 62 App. Div. (N. Y.) 371 380, 481, 517 Mittelstadt v. Morrison, 76 Wis. 265 347 Mittleman v. New York City Ry. Co., 107 N. Y. Supp. 108 405 Mobile v. St. Joseph & B. H. St. R. Co., 98 Mich. 249 275, 355 Mobile & Montgomery R. Co. v. Jay, 65 Ala. 113 501 Mobile & O. R. Co. v. Tenn, 153 U. S. 486 167 Mobile, etc., R. Co. v. Dale, 61 Miss. 206 495 Mobile, etc., R. Co. v. Hopkins, 41 Ala. 486 436 Mobile, etc., R. Co. v. State, 39 Ala. 573 17 Mobile, etc., R. Co. v. State, 29 Ala. 585 17 Mobile Light 4 R. Co. v. Walsh, 146 Ala. 290 260, 275, 303, 308, 365 Mobile St. Ry. Co. v. Walters, 135 Ala. 227 265, 469, 476 Mock v. Los Angeles Traction Co., 139 Cal. 616 286, 369 Moebus v. Herrmann, 108 N. Y. 349 , 380, 408 Mogk v. Chicago City R. Co., 80 111. App. 411 457 Molloy v. ST. Y. City Ry. Co., 98 N. Y. Supp. 211 298 Molyneaux v. So. Mo. Elec. R. Co., 181 Mo. App. 25 395 Molyneaux v. So. Mo. Elec. R. Co., 2 Mo. App. 687 406 Molyneaux v. S. W. Mo. Elec. Ry. Co., 81 Mo. App. 25 347 Moneham v. City of Covington A; Cincinnati St. Ry. Co., 25 Ky. L. Rep. 1920 323 Money v. New York El. R. Co., 13 App. Div. (N. Y.) 380 88 Monk v. Town of New Utrecht, 104 N. Y. 552 '. 494 Monnier v. N. Y. C. A H. R. R. Co., 175 N. Y. 281 267 Monnon v. Camden Interstate Ry. Co., 56 W. Va. 554 367 Monongahela Bridge Co. v. Pittsburg & Birmingham Traction Co., 196 Pa. St. 25 75 Monongahela Nav. Co. v. United States, 148 U. S. 312 15 Monroe v. Detroit M. & T. Short Line R. Co., 143 Mich. 315 30 Monroe v. Metropolitan St. Ry. Co., 79 App. Div. (N. Y.) 587 516 Monroe v. Third Ave. R. Co., 50 N. Y. Super. Ct. (18 J. & S.) 114 305 Montclair Military Academy v. New Jersey St. Ry. Co., 65 N. J. L. 328 . . 46 Montclair Military Academy v. North Jersey St. Ry. Co., 70 N. J. L. 229. 36, 82 Montenes v. Metropolitan St. Ry. Co., 78 N. Y. Supp. 1059 481 Montgomery v. Buffalo Ry. Co., 165 N. Y. 139 291, 333 Montgomery v. Buffalo Ry. Co., 24 App. Div. (N. Y.) 454.... 143, 291, 337, 338 CXX TABLE OE CASES. [References are to Sections.] Montgomery v. Johnson, 22 Ky. L. Rep. 596 381, 401 Montgomery v. Lansing City El. R. Co., 103 Mich. 46 462 Montgomery v. Philadelphia City E. Co., 136 Pa. St. 96 9> Montgomery v. Santa Ana & W. K. Co., 104 Cal. 186 82 Montgomery Amusement Co. v. Montgomery Trac. Co., 139 Fed. 353 .... 58 Montgomery & E. E. Co. v. Mallette, 92 Ala. 209 274, 496 Montgomery County v. Montgomery Trac. Co., 140 Ala. 456 30 Montgomery St. Ey. Co. v. Lewis, 148 Ala. 134 2 Montgomery St. Ry. Co. v. Mason, 133 Ala. 508. .260, 281, 308, 365, 471, 475 Montgomery St. Ey. Co. v. Shanks, 139 Ala. 489 492 Montgomery St. Ry. Co. v. Smith, 146 Ala. 316 155, 161 Montgomery Trac. Co. v. Fitzpatrick, 149 Ala. 511 273 Montgomery Trac. Co. v. Montgomery Amusement Co., 72 C. C. A. 682. . 38 Montgomery Trac. Co. v. Whatley, 162 Ala. 101 274, 334, 336 Montooth Borough v. Brownsville Avenue St. Ey. Co., 206 Pa. St. 338.. 49 Montreal St. E. Co. v. Montreal, 23 Can. S. C. 259 176 Montz v. Interurban St. Ry. Co., 84 N. Y. Supp. 162 484 Moody v. Springfield St. Ry. Co., 182 Mass. 158 319, 320 Moon v. Interurban St. Ry. Co., 85 N. Y. Supp. 363 269 Mooney v. Luzerne, 186 Pa. St. 161 385 Mooney v. New York Elev. R. Co., 163 N. Y. 242 88 Mooney v. New York Elev. R. Co., 30 St. Rep. (N. Y.) 651 217 Mooney v. Seattle E. & S. Ey., 47 Wash. 540 295 Mooney v. Trow Directory P. & B. Co., 2 Misc. Eep. (N. Y.) 238 390 Moore v. Camden & T. E. Co., 73 N. J. L. 599 130 Moore v. Charlotte Elec. Ey. Co., 128 N. C. 455 381, 400, 517 Moore v. Green, etc., E. Co., 3 Phila. (Pa.) 210, 417 11 Moore v. Lindell Ey. Co., 176 Mo. 528 384 Moore v. Lindell Ey. Co., 176 Mo. 528, 75 S. W. 672 406, 465 Moore v. Nashville C. & St. L. Ey., 137 Ala. 495 469 Moore v. New York Elev. E. Co., 130 N. Y. 523 206, 222 Moore v. Eailroad Co., 119 Mich. 613 480 Moore v. Eailroad Co., 126 Mo. 265 387 Moore v. Shreveport, 3 La. Ann. 645 501 Moore v. St. Louis Transit Co., 194 Mo. 1 4C2 Moore v. W., etc., E. Co., 84 Mo. 481 350 Moors v. Commissioners of Streets of Borough of Haddonfield, 62 N. J. L. 386, 792 30 Moorshead v. United Eailways Co., 203 Mo. 121 62, 65, 353 Moorshead v. United Eailways Co., 119 Mo. App. 541 62, 65 Moran v. Detroit, Y. A. A. Ey. Co., 124 Mich. 582 517 Moran v. Lydecker, 27 Hun (N. Y.) 582 88 Moran v. Milford & N. St. Ey. Co., 193 Mass. 52 381 Moran's Case, 44 Md. 282 449 Mordhurst v. Ft. Wayne & S. W. Traction Co., 163 Ind. 268 82, 83, 130 More v. Woonsocket St. E. Co., 27 E. I. 450 307 Moreland v. Boston & P. R. Co.-, 141 Mass. 31 274, 350 Morgan v. Bell Teleph. Co., (Can.) Rap. Jud. Quebec 11 S. C. 103 .' 379 Morgan v. Cox, 22 Mo. 373 239 Kfi-""" 1 v. Hudson Ore TABLE' OF CASES. CXXXV11 [References are to Sections.] Philadelphia v. Thirteenth * Fifteenth Sts. Pass. Ey. Co., 169 Pa. St. 269. 157 Philadelphia v. Thirteenth, etc., E. Co., 3 Pa. Dist. 468 163 Philadelphia, etc., B. Co. v. Derby, 14 How. (U. S.) 468 320, 352 Philadelphia, etc., B. Co. v. Hogeland, 66 Md. 147 467 Philadelphia, etc., R. Co. v. Kerr, 25 Md. 521 495 Philadelphia, etc., R. Co. v. Larkins, 47 Md. 155 328 Philadelphia, etc., E. Co. v. Lehman, 56 Md. 209 359 Philadelphia, etc., E. Co. v. Long, 75 Pa. St. 257 464 Philadelphia, etc., E. Co. v. Stebbing, 62 Md. 504 347, 495 Philadelphia, etc., E. Co. v. Stinger, 78 Pa. St. 225 238, 241 Philadelphia, etc., E. Co. v. Williams, 54 Pa. St. 103 72 Philadelphia City Pass. Ey. Co. v. Henrice, 92 Pa. St. 431 495 Philadelphia Pass. Ey. Co. v. Hassard, 75 Pa. St. 367 370, 357, 408 Philadelphia & Baltimore E. Co. v. Anderson, 72 Md. 519 306 Philadelphia & Fenton Ey. Co. v. Neshaminy Elev. Ry Co., 206 Pa. St. 343 192 Philadelphia & G. F. Pass. E. Co.'s Appeal, 102 Pa. St. 123 15 Philadelphia & E. E. Co. v. Boyer, 97 Pa. St. 916 248, 353, 386, 398 Philadelphia & E. E. Co. v. Ervin, 89 Pa. St. 71 248 Philadelphia & Southern M. S. S. F. Co. v. Pennsylvania, 122 U. S. 326. 175 Philadelphia & W. B. R. Co. v. Quigley, 21 How. (U. S.) 22 510 Philadelphia, B. & W. R. Co. v. Layer, 112 Pa. St. 414 408 Picard v. Ridge Ave. Pass. R. Co., 147 Pa. St. 195 360 Pie Baking Co. v. Metropolitan St. Ry. Co., 36 Misc. Rep. (N. Y.) 855. . 517 Piehl v. Albany R. Co., 19 App. Div. (N. Y.) 471 480 Pierce v. Camden, etc., Ey. Co., 58 N. J. L. 400 450 Pierce v. Davis, 53 U. S. App. 291 479 Pierce v. Emery, 32 N. H. 484 20 Pierce v. Kile, 80 Fed. 865 479 Pierce v. Montana, 22 Mont. 445 .480, 484 Pierce v. Van Deusen, 78 Fed. 706 ', 489 Piercy v. Metropolitan St. Ey. Co., 30 Misc. Eep. (N. Y.) 612 381, 401 Pierson v. Boston Elev. Ey. Co., 191 Mass. 223 214, 232 Piggott v. Eastern, etc., E. Co., 3 C. B. 229 495 Pike v. Boston Elev. Ey. Co., 192 Mass. 426 292, 320 Pikesville, etc., E. Co. v. State, Eussell, 88 Md. 563 452 Pill v. Brooklyn H. E. Co., 6 Misc. Eep. (N. Y.) 267 504 Pilmer v. Boise Traction Co., 14 Idaho 327 387, 388, 404, 412, 462, 465 Pinder v. Brooklyn Heights E. Co., 173 N. Y. 519 328 Pinder v. Brooklyn Heights E. Co., 65 App. Div. (N. Y.) 521 328, 517 Pine v. St. Paul City E. Co., 50 Minn. 144 269, 328, 510 Pine v. St. Louis Transit Co., 108 Mo. App. 713 363 Pinkerton v. Pennsylvania Trac. Co., 193 Pa. St. 229 133, 467 Piper v. Minneapolis St. E. Co., 52 Minn. 269 364 Piqua Branch of State v. Knoop, 57 U. S. ( 16 How.) 369 15 Pitard v. New Orleans Ey. & L. Co., 120 La. 925 294, 360, 361 Pitcher v. Old Colony St. Ey. Co., 196 Mass. 69 274, 275, 311 Pitcher v. People's St. E. Co., 174 Pa. St. 402 297 Pitcher v. People's St. E. Co., 154 Pa. St. 560 362 Pitcher v. People's St. E. Co., 9 Lane. L. Rev. (Pa. C. P.) 276 258 CXXXV111 TABLE OF CASES. [References are to Sections.] Pittsburg, A. & M. Pass. Ry. Co. v. Caldwell, 74 Pa, St. 421 251 Pittsburg & Lake Erie R. Co. v. Laurence County, 198 Pa. St. 1 110 Pittsburg, C. C. & St. L. Ry. Co. v. Aldridge, 27 Ind. App. 498 28S Pittsburg, C. C. & St. L. Ry. Co. v. Backus, 154 U. S. 421 170, 171 Pittsburg, C. C. & St. L. Ry. Co. v. Gray, (Ind. App.) 59 N. E. 1000.. 499 Pittsburg, C. C. & St. L. Ry. Co. v. Hewitt, 102 111. App. 428 450 Pittsburg, C. C. & St. L. Ry. Co. v. Keokuk & Hamilton Bridge Co., 131 U. S. 371 64 Pittsburg, C. C. 4 St. L. Ry. Co. v. Montgomery, 152 Ind. 1 456 Pittsburg, C. C. & St. L. Ry. Co. v. Sullivan, 141 Ind. 83 460 Pittsburg Elec. R. Co. v. Kelly, 57 Kan. 514 407 Pittsburg, etc., R. Co. v. Andrews, 39 Md. 329 320 Pittsburg, etc., R. Co. v. Bunstead, 48 111. 221 464 Pittsburg, etc., R. Co. v. Caldwell, 74 Pa. St. 421 320 Pittsburg, etc., R. Co. v. Commonwealth, 101 Pa. St. 192 77, 131 Pittsburg, etc., R. Co. v. Donahue, 70 Pa. St. 119 , 338 Pittsburg, etc., R. Co. v. Hinds, 53 Pa. St. 512 334 Pittsburg, etc., R. Co. v. Pillow, 76 Pa. St. 510 336, 510 Pittsburg, etc., R. Co. v. Ruby, 38 Ind. 294 442 Pittsburg, etc., R. Co. v. Russ, 57 Fed. 822 33" Pittsburg, etc., R. Co. v. Taylor, 104 Pa. St. 306 244 Pittsburg, etc., R. Co. v. Vining, 27 Ind. 513 464 Pittsburg Rys. Co. v. City of Pittsburg, 211 Pa. St. 479 170 Pittsburg W. E. Pass. Ry. Co. v. Point Bridge Co., 165 Pa. St. 37 113 Placke v. Union Depot R. Co., 140 Mo. 634 82 Plant v. Heraty, 131 Mich. 619 517 Planz v. Boston & Albany R., 157 Mass. 377, 381 324 Piatt v. Albany Ry., 170 N. Y. 115 376, 577 Piatt v. Forty-Second St. & G. St. F. R. Co., 4 T. & C. (N. Y.) 406. .. . 261 Piatt v. Forty-Second St. &, G. S. R., 2 Hun (N. Y.) 124 261 Platz v. Coloes, 89 N. Y. 219 359 Pletcher v. Scranton Traction Co., 185 Pa. St. 147 410 Plumley v. Birge, 124 Mass. 257 464 Plymouth Tp. v. Chestnut Hill & N. R. Co., 168 Pa. St. 181 70 Pohle v. Second Ave. R. Co., 161 N. Y. 666 302, 479 Pohle v. Second Ave. R. Co., 13 App. Div. (N. Y.) 393 302 Poland v. United States Traction Co., 107 App. Div. (N. Y.) 561 258 Pollock v. Brooklyn, etc., R. Co., 15 N. Y. Supp. 189 496, 507 Pomaski v. Grant, 119 Mich. 675 314, 319 Pomeroy v. Boston & N. St. Ry. Co., 193 Mass. 507 315, 319 Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459 ' 8 Pond v. Metropolitan Elev. Ry. Co., 112 N. Y. 186 206 Poole v. Falls Road El. R. Co., 88 Md. 533 82 Poole v. Northern Pac. R. Co., 16 Oreg. 261 262,291 Pope v. United Traction Co., 30 Pittsb. L. J. N. S. 62 323 Port Chester St. Ry. Co., In re, 43 App. Div. (K Y.) 536 5, 43 Porter v. Metropolitan Elev. Co., 120 N. Y. 284 202 Portland & W. V. R. Co. v. Portland, 14 Oreg. 188 8 TABLE OF CASES. CXXX1X [References are to Sections.] Port Richmond & P. B. Electric R. Co. v. Staten Island Rapid Transit R. Co., 144 N. Y. 445 108, 112 Port Richmond & P. P. Electric R. Co. v. Staten Island Rapid Transit R. Co., 71 Hun (N. Y.) 179 108, 112 Posch v. So. El. R. Co., 76 Mo. App. 601 274 Post v. Beacon Vacuum Pump & E. Co., 84 Fed. 371 101 Posten v. Denver Consolidated Tramway Co., 20 Colo. App. 324 519 Posten v. Denver Consol. Tramway Co., 11 Colo. App. 187 289, 3S5 Potter v. Collis, 156 N. Y. 16 7, 9, 13, 23, 26, 30, 72, 116 Potter v. Collis, 19 App. Div. (N. Y.) 392 46, 72 Potter v. O'Donnell, 199 111. 119 486, 517 Potter v. O'Donnell, 101 111. App. 546 517 Potter v. Railroad Co., 20 Wis. 533 475 Potter v. Scranton Traction Co., 176 Pa. St. 271 45, 161, 375 Potter v. Warner, 91 Pa. St. 367 461 Potts v. Chicago City Ry. Co., 33 Fed. 610 369, 495 Potts v. Quaker City El. R. Co., 161 Pa. St. 396 86 Poughkeepsie Bridge Co., Matter of, 108 N. Y. 483, 490 92 Poulin v. Broadway, etc., R. Co., 61 N. Y. 621 294, 305, 310, 321 Poulsen v. Brooklyn City R. Co., 13 Misc. Rep. (N. Y.) 387 294 Poulson v. Nassau Electric R. Co., 30 App. Div. (N. Y.) 246.. 290, 367, 368 Poulson v. Nassau Electric R. Co., 18 App. Div. (N. Y.) 221.. 290, 367, 495 Pounder v. Northeastern R. Co., 1 Q. B. 385 332 Powell v. Hudson Valley Ry. Co., 84 N. Y. Supp. 337 484 Powell v. Macon ft Indian Spring R. Co., 92 Ga. 209 24, 59 Powell v. Railroad Co., 42 Mo. 63 102 Powell v. Wiley, 125 Ga. 823 326 Powelson v. United Traction Co., 204 Pa. St. 474 360 Powers v. Connecticut Co., (Conn.) 74 Atl. 931 261 Powers v. Des Moines City Ry. Co., 137 Iowa 730 462 Powers v. Manhattan Ry. Co., 120 N. Y. 178 216 Prather v. Richmond & D. R. Co., 80 Ga. 427 501 Pratt v. Home St. R. Co., 49 Mo. App. 63 163 Pratt v. New York, etc., R. Co., 77 Hun (N. Y.) 139 221 Pray v. Omaha St. Ry. Co., 44 Neb. 167 274, 313, 315, 479 Prenderville v. Coney Island & B. R. Co., 131 App. Div. (N. Y.) 303 323 Prentiss v. Cleveland Tel. Co., 5 Am. Electl. Cas. 125 133 Preshyterian Church v. Mayor, etc., 5 Cow. (N. Y.) 538 7 Prescott, etc., R. Co. v. Rees, (Ariz.) 28 Pac. 1134 461 President, etc., of Baltimore ft F. Turnpike Road v. United Railways ft Electric Co., 93 Md. 138 113 President, etc., of Perkiomen ft R. Turnpike Road v. Berks County, 196 Pa. St. 21 113 Price v. Charles Warner Co., 1 Penn. (Del.) 462 387, 477, 478, 486 Price v. State, 74 Ga. 378 2 Price v. St. Louis, I. M. ft S. Ry. Co., 75 Ark. 469 336 Prideaux v. Mineral Point, 43 Wis. 513 501 Priest v. Nichols, 116 Mass. 401 479 Prime v. Twenty-Second St. R. Co., (N. Y.) 1 Abb. N. C. 63. 151 Prince v. Charles Warner Co., 1 Penn. (Del.) 462 400 CXI TABLE OF CASES. [References are to Sections.] Prince v. Crocker, 166 Mass. 347 1 Proctor v. Railway Co., 64 Mo. 112 177" Propert v. Rhode Island Suburban Ry. Co., 28 R. I. 367 276 Propes v. Haskell, 7 Me. 474 16 Proprietor of Locks v. Lowell H. R. Co., 109 Mass. 221 162 Prospect Park & Coney Island R. Co., Re, 67 N. Y. 371, 376 94, 101 Prospect Park & Coney Island R. Co. v. Coney Island & B. R. Co., 144 N. Y. 152 65, 105 Prothew v. Citizens' St. Ry. Co., 134 Ind. 431 311, 350, 355 Pruitt v. Hannibal, etc., R. Co., 62 Mo. 527 245 Pryor v. Metropolitan St. Ry. Co., 85 Mo. App. 367 279, 294, 504 Pueblo El. St. R. Co. v. Sherman, 25 Colo. 114 323, 355 Pugh v. Texarkana L. & T. Co., 86 Ark. 36 372 Pullman Co. v. Reed, 75 111. 125 262 Pullman Palace Car Co. v. Barker, 4 Colo. 344 244 Pumphrey v. Baltimore, 47 Md. 151, 152 18 Pumpyansky, People ex rel. Keating, 168 N. Y. 390 141 Purcell v. St. Paul City R. Co., 48 Minn. 134 245, 246, 247, 502 Purdy v. Manhattan R. Co., 3 Misc. Rep. (N. Y.) 50 214 Purdy v. Manhattan Elev. R. Co., 38 St. Rep. (N. Y.) 47 227 Purdy v. Rome, W. & O. R. Co., 125 N. Y. 209 442, 443 Purington-Kimball Brick Co. v. Eckman, 102 111. App. 183 316, 519 Purple v. Union Pac. R. Co., 114 Fed. 123 242 Putnam v. Broadway & S. A. R. Co., 55 N. Y. 108 334, 336, 350' Q. Quested v. Railroad, 127 Mass. 204 353 Quincy, etc., R. Co. v. Welhoener, 72 111. 60 245, 495 Quincy Gas & Elec. Co. v. Bauman, 104 111. App., 600 377 Quincy Horse R. & C. Co. v. Gnuse, 38 111. App. 212 347 Quincy H. R., etc., R. Co. v. Gnuse, 26 111. App. 397 461 Quincy Min. Co. v. Kitts, 42 Mich. 34 479 Quinlan v. Newton & B. St. Ry., 191 Mass. 58 308, 365 r Quinn v. Atlantic Ave. R. Co., 34 St. Rep. (N. Y.) 801 387 Quinn v. Shamokin & M. C. Elec. R. Co., 7 Pa. Super. Ct. 344 368 Quinn v. Shields, 62 Iowa 129 60 Quirk v. Rapid Ry. Co., 130 Mich. 654 51T K. Rack v. Chicago City R. Co., 173 111. 289 382 Rack v. Chicago City R. Co., 69 111. App. 565 393, 394 Radjavilla v. Third Ave. R. Co., 58 App. Div. (N. Y.) 11 511 Rafferty v. Central Trac. Co., (Pa. C. P.) 22 Pittsb. L. J. (N. S.) 15. . 62 Rahn Township v. Tamaqua & L. St. Ry. Co., 167 Pa. St. 84 5, 21, 124 Railroad C. v. Auspe, 5 Tex. Civ. App. 611 449 Railroad Co. v. Ballard, 85 Ky, 307 331 Railroad Co. v. Bell, 44 Neb. 44 443 TABLE OF CASES. Cxli [References are to Sections.] Railroad Co. v. Bemis, 51 N. J. 340 436 Railroad Co. v. Berry, 58 Ark: 198 449 Railroad Co. v. Boyer, 97 Pa. St. 91 345 Railroad Co. v. Cooper, 85 Va. 939 467 Railroad Co. v. Curtia, 51 Neb. 442 443 Railroad Co. v. Delamore, 114 U. S. 501 62 Railroad Co. v. Dwyer, 36 Kan. 58 449 Railroad Co. v. Elliott, 28 Ohio St. 340 461 Railroad Co. v. Fleming, 14 Lea (Tenn.) 145 291 Railroad Co. v. Fullbright, 7 Ohio L. J. 157 475 Railroad Co. v. Georgia, 98 U. S. 359 102 Railroad Co. v. Gladmon, 15 Wall. (U. S.) 401 464 Railroad Co. v. Hambleton, 40 Ohio St. 496 467 Railroad Co. v. Henderson, 37 Ohio St. 552 449 Railroad Co. v. Johnson, 64 Ark. 420 387 Railroad Co. v. Kanaley, 39 Kan. 1 449 Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357 461 Railroad Co. v. Lyon, 123 Pa. St. 140 291 Railroad Co. v. Maine, 96 U. S. 499 102 Railroad Co. v. Marion Co. Com'rs, 48 Ohio St. 249 171 Railroad Co. v. McCandless, 33 Kan. 366 360 Railroad Co. v. McKewen, 80 Md. 593 387 Railroad Co. v. McLallen, 84 111. 109 449 Railroad Co. v. Miller, 59 N. J. L. 423 387 Railroad Co. v. Mitchell, 98 Tenn. 31 305 Railroad Co. v. O'Brien, 119 U. S. 99 491 Railroad Co. v. Powell, 89 Ga. 601 467 Railroad Co. v. Renken, 15 Tex. Civ. App. 229 387 Railroad Co. v. Rhodes, 25 Fla. 40 291 Railroad Co. v. Ross, 112 U. S. 390 449 Railroad Co. v. Scott, Adm'r, 108 Ky. 392 253 Railroad Co. v. Simmons, 38 111. 242 475 Railroad Co. v. Spelker, 134 Ind. 380 467 Railroad Co. v. Stein, (Ind.) 31 N. E. 180 491 Railroad Co. v. Whittemore, 43 111. 420 291 Railroad Co. v. Wilmington & W. R. Co., 130 N. C. 597 240 Railroad Co. v. Winans, 58 U. S. 30 64 Railroad Co. v. Zeiger, 78 111. App. 463 387 Railroad & Tel. Co.'s v. Board of Equalizers, 85 Fed. 302 166 Railroad Com'rs v. Market St. Ry. Co., 53 Cent. L. J. 268 2 Railroad Com'rs of Texas v. Houston & T. C. Ry. Co., 90 Tex. 340 29 Railroad Tax Cases, 92 U. S. 575 178 Railway Co. v. Atkins, 40 Ark. 423 360 Railway Co. v. Block, 55 N. J. L. 612 412 Railway Co. v. Brown, 17 Wall. (U. S.) 445 353 Railway Co. v. Caldwell, 74 Pa. St. 421 322 Railway Co. v. Cincinnati, 52 Ohio St. 607 40 Railway Co. v. Cox, 55 Ohio St. 498 443 Railway Co. v. Culberson, 72 Tex. 375 353 Railway Co. v. Higgs, 38 Kan. 375 313 cxlli TABLE OF CASES. [References are to Sections.] Railway Co. v. Lee, 50 N. J. L. 435 318, 319 Railway Co. v. Merchant, 23 C. C. A. 544 245 Railway Co. v. Moore, 152 Ind. 345 443 Railway Co. v. Peekert, 2 Cent. 791 507 Railway Co. v. Rector, 104 111. 296 328 Railway Co. v. Ryan, 56 Ark. 245 137 Railway Co. v. Scott, 86 Va. 902 319 Railway Co. v. Shacklet, 105 111. 364 467 Railway Co. v. Spangler, 44 Ohio St. 471 443 Railway Co. v. State, 49 Ohio St. 189 170 Railway Co. v. Valleley, 22 Ohio St. 345. 336 Railway Co. v. Williams, 140 111. 275. . . ! 360 Eakenkamp v. United Traction Co., 14 Pa. Super. Ct. 635 353, 386 Earning v. Metropolitan St. Ry. Co., 157 Mo. 477 258, 315, 324, 471 Ramsay v. Montreal St. Ry. Co., 32 C. L. J. 52 248 Ramsden v. Boston & A. R. Co., 104 Mass. 117 328 Ramsey Co. v. Chicago, etc., R. Co., 33 Minn. 537 167 Ramsey v. Montreal St. Ry. Co., 32 C. L. J. 52 408 Randall v. Frankfort & S. Pass. Ry. Co., 8 Pa. Co. Ct. 277 314 Randall v. Jacksonville St. R. Co., 19 Fla. 409 132 Randall v. Krieger, 90 U. S. (23 Wall.) 137-150 14 Randall v. New Orleans & N. E. R. Co., 45 La. Ann. 778 293 Randall v. New York Elev. R. Co., 149 N. Y. 211 218, 230 Randall v. New York Elev. R. Co., 76 Hun (N. Y.) 427 218 Randall v. Providence & D. Ry. Co., (R. I.) 67 Atl. 419 298 Randall v. South Frankford, etc., R. Co., 139 Pa. St. 464 333 Rangenier v. Seattle Electric Co., 52 Wash. 401 306 Ranger v. Great Western Ry. Co., 5 H. L. Cas. 86, 87 328 Ranken v. St. Louis & B. Sub. Ry. Co., 98 Fed. 479 118, 125 Ranous v. Seattle Electric . Co., 47 Wash. 544 305, 363, 364 Banson v. Citizens' Ry. Co., 104 Mo. 375 72, 82 Rapid E. Co. v. Mt. Clement, 118 Mich. 133 23, 126 Rapid Transit Co. v. Venable, 105 Tenn. 460 436 Rapp v. St. Louis Transit Co., 190 Mo. 144 462 Raritan Eiver E. Co. v. Middlesex & S. Tr. Co., 70 N. J. L. 732 112, 263 Eascher v. East Detroit & G. P. Ey. Co., 90 Mich. 413 380, 387 Eavenna v. Pennsylvania Co., 45 Ohio St. 18 398 Bawlings v. Wabash R. Co., 97 Mo. App. 511 263 Ray v. Cortland & H. Traction Co., 19 App. Div. (N. Y.) 530 267, 338 Bay v. United Traction Co., 96 App. Div. (N. Y.) 48 506 Eaymond v. Portland E. Co., 100 Me. 529 242, 274 Re Kings Co. El. E. Co., 105 N. Y. 97 11 Re Loader v. The Brooklyn Heights E. Co., 14 Misc. Rep. (N. Y.). 208.. 143 Eea v. St. Louis So. W. Ey. Co. of Texas, (Tex.) 73 S. W. 555 240 Bead v. Brooklyn H. B. Co., 32 App. Div. (N. Y.) 503 400, 462 Bead v. City & Suburban Ey. Co., 115 Ga. 366 377, 466 Beading, City of v. Beading & S. W. St. By. Co., 215 Pa. St. 132 163 Beading, City of, v. Union Trac. Co., (Pa. C. P.) 24 Pa. Co. Ct. 629.. 155 Beading Co. v. Schuylkill Valley Trac. Co., 14 Mont. L. Bep. 10 21 Readington v. Phila. Traction Co., 132 Pa. St. 154 362 TABLE OF CASES. Cxliil [References are to Sections.] Reagan v. St. Louis Transit Co., 180 Mo. 117 298, 305 Reardon v. Third Ave. R. Co:, 24 App. Div. (N. Y.) 163 400 Reber v. Pittsburg, etc., Traction Co., 179 Pa. St. 339 314, 349 Recktenwald v. Metropolitan St. Ey. Co., 121 Mo. App. 595 462 Recip Bank, Matter of, 22 N. Y. 9 16 Reddon v. Union Pac. Ry. Co., 5 Utah 355 501 Redfield v. Oakland Consol. St. R. Co., 110 Cal. 277 274, 295 Redfield v. Oakland Consol. St. R. Co., 112 Cal. 220 478, 507 Redford v. Spokane St. R. Co., (Wash.) 36 Pac. 1085 477 Redford v. Spokane St. Ey. Co., 15 Wash. 419 462 Redington v. Hafrisburg Traction Co., 210 Pa. St. 648 301 Eedmon v. Metropolitan St. Ey. Co., 185 Mo. 1 283, 298, 491, 496 Eeed v. Erie, 79 Pa. St. 346 8 Reed v. Frankfort Bank, 23 Me. 318 16 Eeed v. Metropolitan St. Ey. Co., 58 App. Div. (NY.) 87 400, 466 Reformed Presbyterian Church, Matter of, 7 How. Pr. (N. Y.) 476 17 Began v. Brooklyn Heights E. Co., 115 App. Div. (N. Y.) 705 488 Eegensburg v. Nassau Elec. E. Co., 58 App. Div. (N. Y.) 566 275, 521 Regner v. Glens Falls, S. H. & Ft. E. St. Co., 74 Hun (N. Y.) 203. . .336, 358 Reichla v. Gruensfelder, 52 Mo. App. 43 497 Reem v. St. Paul City Ey. Co., 77 Minn. 503 275, 313, 489 Reem v. St. Paul City Ry. Co., 82 Minn. 98 522 Reese v. Pennsylvania R. Co., 131 Pa. St. 422 262 Eeeves v. Philadelphia Traction Co., 152 Pa. St. 153 10, 65, 114 Eeid v. Norfolk City R. Co., 94 Va. 117 82 Reid v. Omnibus R. Co., 33 Cal. 211 72 Reidman v. Brooklyn, Q. C. & S. R. Co., 28 App. Div. (N. Y.) 540 134 Reidy v. Metropolitan St. Ey. Co., 27 Misc. Eep. (N. Y.) 527 360, 479 Eeiley v. Salt Lake E. T. Co., 10 Utah 428 408 Eeilly v. Brooklyn H. E. Co., 65 App. Div. (N. Y:) 1080.. 388, 390, 511, 522 Eeilly v. Met. St. E. Co., 30 Misc. Eep. (N. Y.) 110 40O Eeilly v. New York City Ey. Co., 46 Misc. Eep. (N. Y.) 72 329 Eeilly v. Third Ave. E. Co., 16 Misc. Eep. (N. Y.) 11 393 Eeilly v. Troy City E. Co., 32 App. Div. (N. Y.) 131 401 Eeinig v. Broadway E. Co., 49 Hun (N. Y.) 269 450 Eeining v. New York, L. & W. E. Co., 128 N. Y. 157, 164 80, 86 Eeiser v. New York & H. E. Co., 24 App. Div. (NY.) 23 447 Eeiser v. Pennsylvania Co., 153 Pa. St. 38 442 Eeiss v. Met. St. Ey. Co., 28 Misc. Eep. (N. Y.) 198 402 Eeiss v. Wilmington City Ey. Co., (Del.) 67 Atl. 153 355 Eeiten v. Lake St. El. R. Co., 85 111. App. 657 480 Eemsen v. Metropolitan Elev. E. Co., 9 App. Div. (N. Y.) 534 231 Eend v. Chicago W. D. Ey. Co., 8 111. App. 517 387 Eenfro v. Fresno City Ey. Co., 2 Cal. App. 317 298, 306 Eenne v. United States Leather Co., 107 Wis. 305 512 Repairing Fulton St., In re, 29 How. Pr. (N. Y.) 429 157 Eevell v. City of Annapolis, 81 Md. 1,9 lg Bex v. Kerrison, 3 Maule & S. (Eng.) 526 372 Reynolds v. New York, etc., E. Co., 58 N. Y. 248 497 Reynolds v. Pacific Elec. Ey. Co., 146 Cal. 261 65 CXliv TABLE OF CASES. [Beferences are to Sections,] Reynolds v. Presidio & F. R. Co., 1 Cal. App. 229 82, 124 Reynolds v. Richmond & M. R. Co., 92 Va. 400 274 Reynolds v. St. Louis Transit Co., 189 Mo. 408 253, 504 Rhing v. Broadway & S. A. R. Co., 53 Hun (N. Y.) 321 463 Rhode Island Suburban Ry. Co., Re, 22 R. I. 457 96 Rice v. Crescent City R. Co., 51 La. Ann. 108 382, 408, 513 Rice v. Detroit, Y. & A. A. Ry. Co., 122 Mich. 677 138 Rice v. Philadelphia Rapid Transit Co., 214 Pa. St. 147 319 Rice v. Railroad Co., 1 Black (U. S.) 358 15 Rich v. New York Cen$. R. Co., 87 N. Y. 382 352 Richards v. Detroit R. R. & L. O. Ry., (Mich.) 89 N. W. 52 353 Richards v. Holt, 61 Iowa 533 130 Richardson v. Carlow Hill Coal Co., 6 Wash. 52 460 Riche v. Brooklyn, etc., R. Co., 105 N. Y. 294 492 Richmond v. Chicago & W. M. & R. Co., 87 Mich. 374 ■ 398 Richmond v. Metropolitan St. Ry. Co., 123 Mo. App. 495 487 Richmond v. Railroad Co., 87 Mich. 374 345 Richmond v. Second Ave. R. Co., 76 Hun (N. Y.) 233 511 Richmond v. Southern Pac. Co., 41 Oreg. 54 293 Richmond & D. R. Co. v. Parmer, 97 Ala. 141 484 Richmond & D. R. Co. v. Jefferson, 89 6a. 554 332 Richmond & D. R. Co. v. Scott, 16 Va. L. J. 362 356 Richmond & D. Ry. Co. v. Yeamans, 86 Va. 860 461 Richmond & M. R. Co. v. Moore, 94 Va. 493 458 Richmond & P. Electric Ry. Co. v. Rubin, 102 Va. 809 517 Richmond & P. Electric Ry. Co. v. Seaboard Air Line Co., 103 Va. 399. 98, 99 Richmond City Ry. Co. v. Scott, 86 Va. 902 281, 308 Richmond, etc., R. Co. v. Jones, 92 Ala. 218 443 Richmond, etc., R. Co. v. Richmond, 26 Gratt. (Va.) 96 1 Richmond, etc., Ry. Co. v. Richmond, 96 U. S. 521 411 Richmond Passenger & Power Co. v. Gordon, 102 Va. 498 412, 462 Richmond Pass. & P. Co. v. Packs, 101 Va. 487 371 Richmond Ry. Co. v. Carthright, 92 Va. 627 412 Richmond Ry. & Elec. Co. v. Bowles, 92 Va. 738 476 Richmond Ry. & Elec. Co. v. Brown, 97 Va. 26 57 Richmond Ry. & Elec. Co. v. Garthwright, 92 Va. 627 393 Richmond Ry. So Elec. Co. v. Hudgins, 100 Va. 409 496 Richmond Ry. & Elec. Co. v. West, (Va.) 40 S. E. 643 480, 484 Richmond Traction Co. v. Hilbrand, (Va.) 34 S. E. 888 469, 522 Richmond Traction Co. v. Martin's Adm'r, 102 Va. 209 463 Richmond Traction Co. v. Wilkinson, 101 Va. 394 322, 465 Richter v. Cicero & P. St. R. Co., 70 111. App. 196 395 Richter v. Harper, 95 Mich. 221 461 Ricketts v. Birmingham St. Ry. Co., 85 Ala. 600 363,467 Ricketts v. Chesapeake, etc., R. Co., 33 W. Va. 43 328 Riddle v. Forty-Second St., etc., Ry. Co., 173 N. Y. 327 447 Riddle v. Forty-Second St., etc., Ry. Co., 76 N. Y. Supp. 1029 447 Ridenhour v. Kansas City Cable Ry. Co., 102 Mo. 270, 283 277, 358, 484 Rideout v. Winnebago Traction Co., 123 Wis. 297 492, 504 TABLE OF CASES. Cxlv [Keferences are to Sections.] Hidge Ave. Pass. Ry. Co. v. City of Philadelphia, 181 Pa. St. 592 113 Ridpath v. Spokane Co., 23 Wash. 436 172 Riedel v. Wheeling Traction Co., 63 W. Va. 522 388, 412 Ries v. St. Louis Transit Co., 179 Mo. 1 462 Riggs v. Metropolitan St. Ry. Co., 216 Mo. 304 462 Riggs v. St. Francois County Ry. Co., 120 Mo. App. 335 2, 4 Riley v. Galveston City R. Co., 13 Tex. Civ. App. 247 449, 456 Riley v. Salt Lake R. T. Co., 10 Utah 428 487 Ring v. City of Cohoes, 77 N. Y. 83 350 Ripley v. Second Ave. R. Co., 8 Misc. Rep. (N. Y.) 449 355, 520 Rippe v. Metropolitan St. Ry. Co., 35 App. Div. (N. Y.) 321 511 Rische v. Texas Transportation Co., 27 Tex. Civ. App. 33 83 Rittenhouse v. Wilmington St. R. Co., 120 N. C. 544 447, 449, 456 Riverside & A. Ry. Co. v. City of Riverside, 118 Fed. 736 114 Roach v. Brooklyn Heights, 119 App. Div. (N. Y.) 520 139, 267 Robare v. Seattle Traction Co., 24 Wash. 577 451 Robarde v. Indianapolis St. Ry. Co., 32 Ind. App. 297 Robbins v. Railway Co., 168 Mass. 461 412 Robert Mitchell Furniture Co. v. Cleveland, 7 Ohio N. P. 639 125 Roberts v. Easton, 19 Ohio St. 78 . .33, 44 Roberts v. Indianapolis St. Ry. Co., 158 Ind. 634 412, 451 Roberts v. New York Elev. R. Co., 155 N. Y. 31 189, 195, 196 Roberts v. New York Elev. R. Co., 128 N. Y. 455 225, 230, 231 Roberts v. New York Elev. R. Co., 12 Misc. Rep. (N. Y.) 345.. 189, 195, 196 Roberts v. New York, N. H. & H. R. Co., 175 Mass. 296 366 Roberts v. Spokane St. Ry. Co., 23 Wash. 325 375, 462 Roberts v. Terre Haute Elec. Co., 37 Ind. App. 664 9, 23, 60, 475 Robertson v. Boston & N. St. Ry. Co., 190 Mass. 108 , 258 Robertson v. Wabash K. Co., 152 Mo. 382 350 Robertson v. West Jersey & S. R. Co., (N. J. L.) 79 Atl. 300. . . .247,261, 303 Robinson v. Cone, 22 Vt. 213 464 Robinson v. Helena Light A Ry. Co., (Mont.) 6 St. Ry. Rep. 653.. 258, 275, 484 Robinson v. Louisville R. Co., 112 Fed. 484 401, 486 Robinson v. Manhattan R. Co., 73 App. Div. (N. Y.) 626 230 Robinson v. Metropolitan St. Ry. Co., 103 App. Div. (N. Y.) 243 144 Robinson v. New York Cent. R. Co., 20 Blatchf . 338 . 495 Robinson v. New York Cent., etc., R. Co., 66 N. Y. 11 467 Robinson v. New York Elev. R. Co., 175 N. Y. 219 230 Robinson v. Rockland T. & C. R. Co., 87 Me. 387 337 Robinson v. Sup. R. T. R. Co., 94 Wis. 345 510 Robson v. Nassau Elec. R. Co., 80 App. Div. (N. Y.) 301 516 Rochester v. Bell Tel. Co., 32 App. Div. (N. Y.) 6 133 Rochester v. Rochester, 98 App. Div. (N. Y.) 521 178 Rochester v. Rochester Co., 182 N. Y. 99 178 Rochester v. Simpson, 134 N. Y. 414 143 Rochester v. Telephone Co., 52 App. Div. (N. Y.) 6 133 Rochester v. West, 164 N. Y. 510, 514 143 Rochester & Lake Ontario R. Co., 51 App. Div. (N. Y.) 65 114 Rochester R. Co. v. Robinson, 133 N. Y. 242 97 CXM TABLE OF CASES. [References are to Sections.] Rochester, Syracuse & E. R. Co. v. Tolan, 116 App. Div. (N. Y.) 696 97" Rock v. Chicago City R. Co., 173 111. 289 410 Rockford v. Tripp, 83 111. 247 245 Rockford City R. Co. v. Blake, 173 111. 354 476. Rockwell v. Third Ave. R. Co., 64 Barb. (N. Y.) 448 372 Rocky Mountain Bell Telephone Co. v. Salt Lake City R. Co., (Utah) 3 Am. Electl. Cas. 356 379 Roddy v. Brooklyn City & Newtown R. Co., 32 App. Div. (N. Y.) 311, 314 1, 3, 10 Rodgers v. St. Louis\ransit Co., 117 Mo. App. 678 462 Rodrian v. New York & N. H. R. Co., 125 N. Y. 526 49& Roebling v. Trenton Pass. R. Co., 58 N. J. L. 666 114 iloedecker v. Met. St. Ry. Co., 87 App. Div. (NY.) 227 244, 320 Roesner v. Herman, 8 Fed. 782 44? Roettcher v. Detroit Citizens' St. Ry. Co., 131 Mich. 295 517 Rogers v. Galveston City R. Co., 76 Tex. 502 450 Rogers v. Interurban St. Ry. Co., 84 N. Y. Supp. 974 509 Rogers v. Kennebec Steamboat Co., 86 Me. 261 43C Rogers v. Overton, 87 Ind. 410 475 Rohan v. Met. St. Ry. Co., 59 App. Div. (N. Y.) 250 451 Roller v. Sutter St. Ry. Co., 66 Cal. 230 369, 408, 464, 495 Rollins v. Clay, 33 Me. 132 64 Rolseth v. Smith, 38 Minn. 14 475 Rome St. R. Co. v. McGinnis, 94 Ga. 229 395 Romeo v. Union Ry. Co., 52 Misc. Rep. (N. Y.) 578 518 Romer v. St. Paul City R. Co., 75 Minn. 211 4tf Rommel v. Schambacher, 120 Pa. St. 519 332 Ronnebaum v. Mt. Auburn Cable R. Co., 29 Ohio L. J. 338 35 Rood v. St. Louis Transit Co., 115 Mo. App. 202 495 Rooke v. Houston, etc., R. Co., 10 App. Div. (N. Y.) 98 462 Roosa v. Brooklyn Heights R. Co., 28 Misc. Rep. (N. Y.) 387 140 Root v. Des Moines City Ry. Co., 113 Iowa 675.. 305, 355, 476, 479, 519, 521 Rosa v. Volkening, 173 N. Y. 590 431 Rosa v. Volkening, 64 App. Div. (N. Y.) 426 431 Roscoe v. Metropolitan St. Ry. Co., 202 Mo. 576 499 Rose v. Boston & Albany R. Co., 58 N. Y. 217, 221 435 Rose v. Boston & M. St. Ry. Co., 194 Mass. 415 260, 354 Rose v. Des Moines Valley R. Co., 39 Iowa 246 436 Rose v. Railroad Co., 106 N. C. 170 328 Rose v. Stephens Transp. Co., 11 Fed. 483 495 Roseman v. Carolina C. R. Co., 112 N. C. 709 336 Rosen v. Chicago G. W. R. Co., 83 Fed. 300 241 Rosenberg v. Brooklyn Heights R. Co., 91 App. Div. (N. Y.) 580 141 Rosenberg v. Third Ave. R. Co., 168 N. Y. 681 471 Rosenberg v. Third Ave. R. Co., 47 App. Div. (N. Y.) 323. .250, 259, 260, 471 Rosenberg v. West End St. R. Co., 168 Mass. 561 394 Rosenblatt v. Brooklyn H. R. Co., 26 App. Div. (N. Y.) 600 387, 402 - Rosenbranz v. Lindell St. Ry. Co., 108 Mo. 8 40S Rosencranz v. Lindell Ry. Co.. 108 Mo. 9 464, 508 Rosensburg v. Nassau Elec. R. Co., 58 App. Div. (N. Y.) 566 27S TABLE OF CASES. Cxlvii [References are to Sections.] Eoss v. Delaware, L. & W. E. Co., 12 N. J. L. J. 235 398 Ross v. Railway, 113 Mo. App. 605 469 Ross v. Shanley, 86 111. App. 144 386 Roth v. Union Depot R. Co., 13 Wash. 525 511 Rounds v. Delaware, L. & W. R., 64 N. Y. 120, 129 263, 324, 328 Rouser v. North Park St. R. Co., 97 Mich. 565 267 Rouser v. Washington & G. R. Co., 26 Wash. L. Rep. 559 355 Rouston v. Detroit United Ey., 151 Mich. 237 290, 342 Rowalski v. Newark Pass. Ey. Co., 15 N. J. L. 50 280 Rowe v. Augusta Council, 24 6a. 326 22 Rowe v. Brooklyn H. R. Co., 71 App. Div. (N. Y.) 474 292, 510 Eowe v. Central of Georgia R. Co., 115 Ga. 929 461 Rowe v. New York, etc., E. Co., 59 Conn. 364 461 Rowe v. New York &. N. J. Tel. Co., 66 N. J. L. 19 379 Eown v. Christopher & Tenth St. E. Co., 34 Hun (N. Y.) 471. .265, 337, 341 Euble v. Turner, 2 Hen. & M. ( Va.) 38 386 Euckert v. Grand Ave. Ey. Co., 163 Mo. 260 16, 123 Eudgeair v. Eeading Traction Co., 180 Pa. St. 333 457 Eudy v. Eio Grande W. E. Co., 8 Utah 165 337 Eunt v. Herring, 21 N. Y. Supp. 244 442 Eunt v. Herring, 49 St. Eep. (N. Y.) 126 443 Euschenberg v. Southern Elec. E. Co., 161 Mo. 70 144, 384, 489, 522 Eusk v. Manhattan Ey. Co., 46 App. Div. (N. Y.) 100 350 Eussell v. Chicago & Milwaukee Elec. Ey. Co., 205 111. 155 25, 27 Russell v. Hudson E. Co., 17 N. Y. 134 436 Eussell v. Huntsville Ey., L. & P. Co., 137 Ala. 627 469 Eussell v. Pittsburg, C. C. & St. L. Ey. Co., 157 Ind. 305 263, 293 Eussell v. Seattle, etc., E. Co., 47 Wash. 500 342 Eussell v. Shreveport Belt Ey. Co., 50 La. Ann. 635 345 Eussell v. Street Ey. Co., 83 Minn. 304 412 Euth v. St. Louis Traction Co., (Mo.) 71 S. W. 1055 341 Eyan v. La Crosse City Ey. Co., 108 Wis. 122 381, 404, 481 Eyan v. Manhattan Ey. Co., 121 N. Y. 126 285, 350 Eyan v. St. Louis Transit Co., 190 Mo. 621 246 Ryan v. Third Ave. R. Co., 36 Misc. Eep. (N. Y.) 849 511 Eyan v. Third Ave. E. Co., 86 N. Y. Supp. 1070 449 Eyeberg v. Portland Cable E. Co., 22 Oreg. 224 390, 400 Eyder v. Kinsey, 62 Minn. 85 495 S. Saner v. Westchester Elec. R. Co., 22 Misc. Eep. (N. Y.) 555 381, 400 Safford v. Drew, 3 Duer (N. Y.) 627 469 Saginaw Union St. Ey. Co. v. Michigan Central E. Co., 91 Mich. 657. .369, 378 Sahlgaard v. St. Paul City Ey. Co., 48 Minn. 232 360 Sailo v. St. Paul City E. Co., 67 Minn. 8 363 Salisbury v. Herchenroder, 106 Mass. 458 245, 248 Sallie v. New York City Ry. Co., 110 App. Div. (N. Y.) 665 516 Salmon v. City Electric Ry. Co., 124 Ga. 1056 356 Cxlviii TABLE OF CASES. [References are to Sections.] Salmon v. Railroad Co., 38 N. J. L. 11 241 Salter v. Utica & B. R. Co., 59 N. Y. 632 486 Salter v. Utica R. Co., 88 N. Y. 42 347 Saltzman v. Brooklyn City R. Co., 148 N. Y. 745 313 Saltzman v, Brooklyn City R. Co., 73 Hun (N. Y.) 567 313 Salt Lake City v. Hollister, 118 U. S. 256, 263 64 Sample v. Consol. L. & Ry. Co., 50 W. Va. 472 408, 489 Sams v. St. Louis & M. R. Co., 174 Mo. 53 456 Samuels v. California^St. Cable R. Co., 124 Cal. 294 480 Samuels v. Railroad Co., 35 S. C. 493 510 San Antonio v. Rische (Tex. Civ. App.) 38 S. W. 388 7 San Antonio & A. P. R. Co. v. Bennett, 76 Tex. 151 501 San Antonio & A. P. R. Co. v. Fanis, (Tex. Civ. App.) 26 S. W. 82 90 San Antonio & A. P. R. Co. v. Keller, 11 Tex. Civ. App. 569 502 San Antonio Edison Co. v. Beyer, (Tex. Civ. App.) 57 S. W. 851 478 San Antonio Elec. Co. v. Beyer, 24 Tex. Civ. App. 145 395, 478 San Antonio Rapid Transit St. Ry. Co. v. Lunberger, 88 Tex. 79 372 San Antonio St. Ry. Co. v. Callouette, 79 Tex. 341 408, 469 San Antonio St. R. Co. v. Mechler, 87 Tex. 628 382, 404, 408, 481 San Antonio St. R. Co. v. Muth, 7 Tex. Civ. App. 443 473, 502, 508 San Antonio St. R. Co. v. Ranken, 15 Tex. Civ. App. 229 380, 511 San Antonio St. Ry. Co. v. State, (Elmendorf) 60 Tex. 520 15 San Antonio Tr. Co. v. Athgeld, (Tex. Civ. App.) 81 S. W. 106 138 San Antonio Traction Co. v. Altgelt, 200 U. S. 304 52, 102 San Antonio Traction Co. v. Bryant, 30 Tex. Civ. App. 437, 70 S. W. 1015 361, 485, 519 San Antonio Traction Co. v. Court (Tex. Civ. App.) 71 S. W. 777.. 409, 381, 484, 522 San Antonio Traction Co. v. Crawford, (Tex. Civ. App.) 71 S. W. 306.. 331 San Antonio Traction Co. v. Flory, 45 Tex. Civ. App. 233 302, 304, 310 San Antonio Traction Co. v. Upson, (Tex. Civ. App.) 71 S. W. 565. .484, 485 San Antonio Traction Co. v. Warren (Tex. Civ. App.) 85 S. W. 26 305 Sanders v. Reister, 1 Dak. 172 501 Sanders v. Southern R. Co., 107 Ga. 132 355 Sanders v. Southern Elec. R. Co., 147 Mo. 411 482, 496 Sanderson v. Boston Elev. Ry. Co., 194 Mass. 337 305, 306 Sandford v. Hestonville, etc., R. Co., 136 Pa. St. 84 297, 315, 323 Sandford v. Hestonville, M & T. Pass. R. Co., 153 Pa. St. 300 297 Sandy River Cannel Coal Co. v. Candill, 22 Ky. L. Rep. 1175 461 Sanfleet v. Toledo, 10 Ohio C. C. 460 30, 33 Sanford v. Eighth Ave. R. Co., 23 N. Y. 343 259, 263, 338 Sanford v. Pawtucket St. R. Co., 19 R. I. 650 179, 458 Sanford v. Union Ry. Pass. Co., 16 Pa. Super. Ct. 393 161, 372, 517 San Francisco v. Central P. R. Co., 63 Cal. 467 170 San Francisco & N. P. R. Co. v. State Board of Equalizers, 60 Cal. 12. . 170 San Fransico & San Mateo Elec. Ry. Co. v. Scott, 142 Cal. 222 164, 171 Sanitary Dairy Co. v. St. Louis Trans. Co., (Mo.) 71 S. W. 726 517, 522 Santa Fe R. Co. v. New Mexico & S. P. R. Co., 3 N. M. 116 172 Santer v. New York Cent., etc., R. Co., 66 N. Y. 50 244 Sauers v. Union Traction Co., 193 Pa. St. 602 382 TABLE OP CASES. CxllX [References are to Sections.] Saunders v. City & S. R. Co., 99 Tenn. 130 248 Savage v. Marlborough St. Ey. Co., 186 Mass. 203 344 Savage v. Nassau Elec. B. Co., 168 N. Y. 680 449 Savage v. Nassau Electric R. Co., 42 App. Div. (N. Y.) 241 449 Savage v. Rhode Island Co., 28 R. I. 391, 67 Atl. 633 450, 453 Savage v. Third Ave. R. Co., 29 App. Div. (N. Y.) 556 301, 471 Savannah, City of, v. Hoist, 132 Fed. 901 24, 30 Savannah Electric Co. v. Wheeler, 128 Ga. 550 265, 328, 471 Savannah, etc., Ry. Co. v. Williams, 117 6a. 414 456 Savannah F. & W. Ry. Co. v. Boyle, 115 Ga. 836 332 Savannah St. R. Co. v. Bryan, 86 Ga. 312 328, 329 Savannah & T. R. Co. v. Savannah, 45 Ga. 602 8 . Savannah, Thunderbolt OPEEATE. The primary meaning of street railway or street railroad is one constructed and operated on and along the streets of a city or town for the carriage of persons from one point to another in such city or town or to and from its suburbs. 2 And street railroads are generally understood to be only such as are constructed and operated in the streets of a city for the purpose of conveying passengers, with ordinary hand luggage, from one point to another along the line thereof. Whether the road be a street railroad or not will depend upon the character of its traffic. 3 They derive their business from the street; are intended for the convenience of the travel thereon and are in aid of the identical use for which the street was created. 4 Street railroads may occupy every street in a city and iron the whole surface, or spin their webs in the air over every avenue, or undermine the entire system of city streets. They may be under or elevated above the surface of the streets and still be street railroads in those streets. 5 They are public tan St. R. Co., 81 Mo. App. 78, citing Williams v. Railway, 41 Fed. 556; Funk v. St. Paul City Ry. Co., 61 Minn. 435, 63 N. W. 1099, 52 Am. St. Rep. 608. Street railroads are not carriers of goods except under spe- cial circumstances. Thomson-Houston Elec. Co. v. Simon, 20 Oreg. 60, 47 Am. & Eng. R. Cas. 51, 25 Pac. 147. A street railroad company was held liable for the loss of merchandise de- livered for transportation to one of its conductors and carried upon the platform of a passenger car, for money paid by owners of goods to conductor, upon proof that two other persons had before then paid con- ductors for like transportation of goods, with the knowledge of the su- perintendent of the road. Levi v. Lynn, etc., R. Co., 11 Allen (Mass.) 300, 87 Am. Dec. 713. 2. Hannah v. Metropolitan St. Ry. Co., 81 Mo. App. 78, citing Williams v. Railway, 41 Fed. 556; Funk v. St. Paul City Ry., 61 Minn. 435, 63 N. W. 1099, 52 Am. St. Rep. 608. 3. Spalding v. Macomb & W. J. Ry. Co., 225 111. 585, 80 N. E. 327, 5 St. Ry. Rep. 188. 4. Carli v. Stillwater St. Ry. & Tr. Co., 28 Minn. 373, 10 N. W. 205, 41 Am. Rep. 290. 5. So stated in a case holding that the consents of abutting owners as well as of local authorities were neces- sary to the construction of an under- ground street railroad. Matter of New York Dist. Ry. Co., 107 N. Y. 42, 52, 32 Am. & Eng. R. Cas. 202, 14 N. E. 187. A railroad wholly oper- ated within the limits of a city, and proposed to be built exclusively under the surface thereof, is a street rail- way within the meaning of a. consti- tutional provision that no law shall authorize the construction of a street railroad except upon the condition of the consent of the owners of one-half in value of the property bounded on and the consent also of the local au- thorities having control of the street. Matter of New York Dist. Ry. Co., 107 N. Y. 42, 14 N. E. 187. The- THE EIGHT TO CONSTRUCT AND OPEBATE. § 1 high-ways in themselves and may exclude all other means of transit over the route. 6 In the absence of constitutional restric- tion, street railroads may be organized to be operated for the transportation of passengers, or freight, or both, by the use of any motive power. 7 In the absence of statutes circumscribing their • powers, the persons or corporations operating them may carry property, freight, as well as passengers. 8 In short, street rail- court said in thia case : " Where the railway runs under the streets, the adjoining owners are as much and as dangerously affected as where it runs on their surface or above them. Whether the new surface is safe and sufficient, or weak and perilous, and invites or frightens away passage; whether the opening obstruct or hinder access to the abutter, or pour out through the ventilators smoke and steam upon his premises ; whether his vaults and foundations will re- main safe and secure, or be ruined or weakened by vibration; whether his gas and water supply will continue ample and convenient, and the new sewerage work him no injury; all these are to him questions of vital importance, affecting his comfort and convenience, the success of his busi- ness and the value of his property. The same reasons which dictated a a constitutional protection against roads on or above the surface of the streets apply to those which are built beneath in the manner here contem- plated, and these should justly be deemed street railroads within the meaning of that phrase as used in the Constitution." Per Finch, J. Tunnel under Boston com- mon. — The construction of a tunnel for subway purposes under the Boston common, which does not change the occupation above the surface per- ceptibly, if at all, is not inconsistent with the original dedication of the common " as a training field and cow pasture." Codman v. Crocker, 203 Mass. 146, 89 N. E. 177. See Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610. 6. Sun Printing & Publishing Ass'n v. City of New York, 152 N. Y. 257, 46 N. E. 499. 7. But the right to propel cars by steam through city streets is not to be implied, and may be prohibited by a municipality under its charter, Richmond, etc., R. Co. v. Richmond, 26 Gratt. (Va.) 96. Street railway companies incorporated under the General Railroad Law may operate cars designed and used exclusively for carrying express matter, freight, oi property. De Grauw v. Long Island Elec. R. Co., 43 App. Div. (N. Y.) 502, 508, 60 N. Y. Supp. 163; affd., 163 N. Y. 597, 57 N. E. 1108. See also People v. Brooklyn F. & C. I. R. Co., 89 N. Y. 75. 8. State v. Dayton Traction Co., 18 Ohio Cir. Ct. 490, 10 O. C. D. 212. Under the acts authorizing the con- struction of railroads in New York, passed in 1848 (chap. 140) and 1850 (chap. 140), street surface railroads are not mentioned in terms; and the acts provided for the carriage of passengers and freight; but the grant to street surface railroads in- corporated thereunder was frequently held to carry the right to convey both passengers and freight upon the con- structed line. De Grauw v. Long Island El. R. Co., 43 App. Div. (N. Y.) 502, 505, 60 St. Rep. (N. Y.) § 1 THE EIGHT TO CONSTETJCT AND OPERATE. roads are creatures of legislation; and in the absence of constitu- tional restriction, they may be organized to be operated for the transportation of passengers, or freight, or both, by the use of any motive power. 9 And it is not probable, since their right in a street is subordinate to the rights of the public therein, that such use will result in the operation upon the public thoroughfares of long trains for the transportation of freight, passengers, or prop- erty. 10 163; affd., 163 N. Y. 597, 57 N. E. 1108. And see Nichols v. Ann Arbor & Y. St. Ry. Co., 87 Mich. 361, 49 N. W. 538; Clement v. Cincinnati, 16 W. L. B. 355. A street railroad may be organized in a city street in Texas under Laws 1897, chap. 130, pp. 188, 189, to transport freight. Such pur- pose is consistent with the purposes for which streets exist, and an abut- ting property owner is not entitled to have such use enjoined or declared a nuisance. Aycock v. San Antonio Brewing Ass'n, 26 Tex. Civ. App. 341, 63 S. W. 953. 9. But the right to propel cars by steam through city streets is not to be implied, and may be prohibited by a municipality under its charter. Richmond, etc., R. Co. v. Richmond, 26 Gratt. (Va.) 96. 10. De Grauw v. Long Island Electric Ry. Co., 43 App. Div. (N. Y.) 502, 508, 60 N Y. Supp. 163. In the case cited the court said : " It is undoubtedly true that the defend- ants, as to whatever right they have acquired to transport passengers, or freight, or property, have a vested right which may not be defeated or impaired by legislation. Such is the effect of the decisions. Ingersoll v. Nassau Electric R. Co., 157 N. Y. 453, 52 N. E. 545; Roddy v. Brook- lyn City & Newtown R. Co., 32 App. Div. (NY.) 311, 52 N. Y. Supp. 1025. But we do not apprehend that such fact, nor our present construction of the statute, will entail all of the evils which the appellant insists must follow in the train of such result. It can never happen that the right of use conferred by the franchise granted street surface railroads will result in the operation of long trains for the transportation of either passengers or property. Commercial railroads do not furnish a parallel of use. The latter are constructed upon the prop- erty of the corporation over which, except for purposes of crossing and otherwise in a very limited way, the general public do not travel, and have thereon, except for purpose of trans- portation, no right. This condition is created for the express purpose of furnishing facilities for the hauling of long consolidated trains, which may be operated for the reason that all else is excluded except such opera- tion. The grant of power to these corporations was conditioned upon the creation of such surroundings as would enable them to so operate with- out detriment to the public, and with- out interfering or trespassing upon its rights. No such conditions sur- round a street surface railroad; the use of the street by the railroad is subordinate to the right of the public therein. In the struggle which is going on for the transportation of persons and property, it must be con- fessed that street surface railroads are not backward in the assertion of all the rights which the grant of THE EIGHT TO CONSTRUCT AND OPERATE. § 2 § 2. As affected by statutes generally. — Street railroads are created by statute, and, ordinarily, they are authorized to be oper- ated by animal or horse power, or by cable, electricity, or any other power than locomotive steam power. 11 Underground and elevated street railroads are, usually, authorized to be operated by the power or force of steam, or by any motive power other than animal power. 12 Ordinarily, the statutes authorizing their use expressly conferred power to convey persons and property in cars for com- pensation. 13 Frequently, however, both in general and special power confers. But the law is, and the courts may be relied upon to en- force the law, that the right of use of the street by the public is first and primary; the right of use by the street surface railroad is secondary and subordinate. It has the para- mount right of use of its tracks, but not the exclusive use, and when the right of the public or an individual member of it requires the use of the street for a proper purpose, the right of the railroad company must yield thereto, even though the effect be, for the time, to stop the operation of its cars thereon. Black v. Staten Island Electric R. Co., 40 App. Div. (N. Y.) 238, 57 N. Y. S. 1112." Prior to 1855 a railroad company was authorized to propel its cars by steam power upon Atlantic avenue in Brooklyn, N. Y. In 1859, under stat- ute authority and upon consideration paid by property benefited, it re- linquished the right to use steam. In 1876 it was again authorized to use steam and resumed the use thereof. In 1874, art. Ill, § 18, was added to the Constitution, providing that the legislature shall not pass a private or local bill granting to any corporation, association, or individ- ual, the right to lay down railroad tracks, or to any private corporation, association, or individual, any exclu- sive privilege, immunity, or franchise whatever, and that no law should au- thorize the construction or operation of a street railroad, except upon the condition that the consent of the own- ers, etc., be had. It was held that this constitutional provision was pro- spective in its operation and had no reference to, or effect upon, previ- ously existing laws. That when in 1876 the restriction upon the use of steam was removed, the original charter power was left in full force, and that the State could not restrain the use of steam upon the company's road in the avenue, and that the question whether the removal of the restriction was violative of the con- stitutional prohibition against legis- lation impairing the obligation of a contract could not be presented in an action brought by the State to which the assesed landowners, who alone had contract rights, if any existed, were not parties. The People v. Brooklyn F. & C. I. R. Co., 89 N. Y. 75. 11. For illustration, see N. Y. Railroad Law, chap. 565 of 1890, art. IV, § 100, as amended by chap. 676 of 1892, chap. 584 of 1899, chap. 679 of 1900, and chap. 533 of 1901; 3 Heydecker's Gen. Laws (2ded.) 3317. 12. N. Y. Railroad Law, chap. 565 of 1890, art. V, § 129. 13. For illustration, see N. Y. Railroad Law, chap. 565 of 1890, art. IV., § 90. The section cited authorizes the construction of street surface rail- § 2 THE EIGHT TO CONSTEUCT AND OPEEATE. laws, tHe power is limited to the carriage of passengers only. 14 Whether the General Kailroad Law is applicable to street rail- roads must be determined in every case from the context and from the purpose and intent of the statute. 15 In a case in Cali- roads, under restrictions, " for public use in the conveyance of persons and property for compensation." Under the Railroad Law of 1890 it was held that corporations might be legally formed for the transportation of pas- sengers or freight, or both, over rail- roads in the streets of cities where horses were to be the motive power, excepting the city of New York. Matter of Washington St. Asylum & P. R. Co., 115 N. Y. 442, 22 N. E. 356; People's Rapid Transit Co. v. Dash, 125 N. Y. 93, 26 N. E. 25. Construing the words quoted above, it has been held that they allow street surface railroads to operate cars de- signed and intended exclusively for carrying express matter, freight, or property, and used exclusively for that purpose. De Grauw v. Long Island Electric R. Co., 43 App. Div. (N. Y.) 502, 60 St. Rep. (N. Y.) 163; affd., 163 N. Y. 597, 57 N. E. 1108. In deciding the question, the court, per Hatch, J., said : " By familiar rules therefore we must hold that the authority existed when this contract was made to convey both passengers and freight over the de- fendant's lines and to contract for cars to run thereon for the exclusive carriage of passengers and for the ex- clusive carriage of freight. Such is the language of the statute. It is said that this language must be cut down, and the right to convey prop- erty must be read in connection with the passenger, as though it said ' pas- sengers with property.' It is not rea- sonably conceivable that the legisla- ture had such intention. In the ordi- nary carriage of passengers upon street railroads it has never been thought that passengers carrying small articles or such baggage as may be carried by hand was the occasion for the use of the word ' property ' as used in the statute. The regula- tion for the carriage of such prop- erty, that which accompanies the pas- senger, even upon commercial roads, is usually by rule of the company and not by statute; it stands upon a different footing from the carriage of other property, and by common ac- ceptation is usually denominated bag- gage, or, to adopt the English expres- sion, luggage, meaning in popular phrase that which is carried by the person. No such limited meaning is to be ascribed to language deliberately used in a statute, where the interpre- tation placed upon it was as discrim- inating freight quite independent of passage by its owner. Certainly no one would have supposed that the Johnstown and Gloversville Railroad Company was violating its charter by the carriage of a. handbag, accom- panied by its owner, and yet it was prohibited from carrying anything except persons or passengers." Authority to construct and oper- ate a street railroad confers no power to construct and operate » railroad for the purpose of transferring freight cars. South & N. A. R. Co. v. Highland Ave. & B. R. Co., 119 Ala. 105, 24 So. 114. 14. See special laws cited in De Grauw v. Long Island Electric R., 43 App. Div. (N. Y.) 502, 60 St. Rep. (N. Y.) 163; affd., 163 N. Y. 597, 57 N. E. 1108. 15. In Pennsylvania it has been THE EIGHT TO CONSTEUCT AND OPEEATE. f ornia it was held that street railroad companies were not railroad or transportation companies within the meaning of a constitu- tional provision defining the judgment and jurisdiction of the decided that the words " railway " and "railroad" as used in statutes are synonymous, and that either will be held to apply to both passenger railway companies and street rail- way companies unless there appears from the title of the act, its purpose, or its context, something to indicate that a particular kind of road is in- tended. City of Philadelphia v. Philadelphia Traction Co., 206 Pa. St. 35, 1 St. Ry. Rep. 717, 55 Atl. 762, citing Hestonville R. Co. v. Phila- delphia, 89 Pa. St. 210; Gyger v. Philadelphia City Pass. Ry. Co., 136 Pa. St. 96, 20 Atl. 399; Cheetham v. McCormick, 178 Pa. St. 186, 35 Atl. 631; Old Colony Trust Co. v. Allen- town & B. Rapid Transit Co., 192 Pa. St. 596, 44 Atl. 319. The term " railroad " is a generic term under which " street railways " falls as a species. It is a broader term than street railways, and as used in our eminent domain statute will be held not to exclude the latter kind of railroads, unless from the context of the law it should appear that the legislature intended to ex- clude them. Shreveport Traction Co. v. Kansas City S. & G. Ry. Co., 119 La. 759, 44 So. 457, 5 St. Ry. Rep. 343. A statute in Massachusetts pro- vided that any corporations created by the State, " except railroad and banking corporations," might insti- tute proceedings in insolvency. The exception was held to embrace street railway corporations. The court, per Gray, J., said: "A 'horse railroad company,' or, as it it more frequently and more properly called in recent statutes, a, ' street railway corpora- tion,' has all these attributes, and is none the less a ' railroad corpora- tion,' less public in its character, or more fit to have its franchise and property transferred to assignees un- der proceedings in insolvency, be- cause it more generally uses horses instead of steam power to draw its cars, and lays its rails over land al- ready devoted to the public use for a, street or highway, and is therefore made by statute peculiarly subject, in the location and use of its tracks, to the regulations of municipal au- thorities. Central Nat. Bank v. Wor- cester H. R. Co., 13 Allen (Mass.) 105." A " dummy " railway laid in the streets of a city, and engaged exclu- sively in carrying passengers, is a " railroad," within Tennessee Code, § 1298, which provides that " every railroad shall keep some person upon the locomotive always upon the look- out ahead; and when any obstruc- tion appears upon the road, the alarm whistle shall be sounded, and every possible means employed to prevent an accident." Katzenberger v. Lawo, 90 Tenn. 235, 16 S. W. 611. A code provision requiring engi- neers and conductors of trains to bring their cars to a. full stop within a certain distance of a railroad cross- ing and not to proceed until they have ascertained that the way is clear, has been held to apply to street railroads. Montgomery St. Ry. Co. v. Lewis, 148 Ala. 134, 41 So. 736. See also Birm- ingham Mineral R. Co. v. Jacobs, 92 Ala. 200, 9 So. 320. An act giving certain powers to " railroads " was held to embrace horse railways in the case of Chicago v. Evans, 24 111. 52. " Railroads " include street rail- § 2 THE EIGHT TO CONSTRUCT AND OPERATE. railroad commission and authorizing it to establish rates of charges for the transportation of passengers and freight by rail- roads, in a statute prohibiting the obstruction of railroad tracks. Price v. State, 74 Ga. 378. An act authorizing the consolida- tion of railroads was held to include street railroads. In re Washington St. Asylum P. R. Co., 115 N. Y. 442, 40 Am. & Eng. R. Cas. 538, 22 N. E. 350; Hestonville R. Co. v. Philadel- phia, 89 Pa. St. 210. Under a. Missouri statute, provid- ing that " every railroad corporation formed or to be formed in this State, and every corporation to be formed under this article, or any railroad corporation running or operating any railroad in this State, shall erect and maintain lawful fences on the sides of its road," it has been decided that an interurban electric railway incor- porated under the laws of that State and authorized to construct and oper- ate a street railway for the public conveyance of passengers, mail and express, is a " railroad corporation " within the above statute, and is re- quired to fence its right of way for the protection of animals. Riggs v. St. Francois County Ry. Co., 120 Mo. App. 335, 5 St. Ry. Rep. 577, 96 S. W. 707. And a statute providing for a lien in favor of one rendering services in the construction of a railroad has been held to include street railways in its operation. Egan v. Cheshire St. Ry. Co., 78 Conn. 291, 61 Atl. 950. The act making the real estate of " any railroad company " subject to certain statutes held applicable to street railroads. Citizens' Pass. R. Co. v. Pittsburg, 104 Pa. St. 522, 17 Am. & Eng. R. Cas. 438. The words " any railroad corpora- tion " in the Iowa Right-of- Way Act, are considered to apply as well to railroads operated by animal power as to those operated by steam. Clin- ton v. Clinton, etc., Horse R. Co., 37 Iowa 61. Where a railway company was, by its charter, invested with all the rights and privileges of street rail- way companies and made subject to the duties and liabilities imposed upon them by the general laws, it was held to be liable to the tax which street railway corporations were by statute required to pay, though it used steam as the motive power, and by statute a, street railroad was de- fined as one operated by motive power other than steam. McDonald v. Union Freight R. Co., 190 Mass. 123, 76 N. E. 655, construing a stat- ute imposing a tax upon the earnings of street railway corporations. A statute making the " proprietors of any railroad liable for injuries caused by the negligence of its serv- ants, etc.," was held to include horse railways. Johnson v. Louisville City R. Co., 10 Bush (Ky.) 231. But the New York Act of 1850, re- lating to the liability of railroad companies for injuries to passengers while on the platform, etc., does not apply to street railroad companies. Lax v. Forty-second St., etc., R. Co., 46 N. Y. Super. Ct. 448. And in Arkansas a, statute making all railroads responsible for all dam- ages to property caused by the run- ning of trains in the State has been held not applicable to street rail- ways. Little Rock Ry. & Elec. Co. v. Newman, 77 Ark. 599, 4 St. Ry. Rep. 3;j, 92 S. W. 864. And a statute for consolidation of railroads has been held not to apply. Gyger v. Philadelphia City P. Ry. Co., THE EIGHT TO CONSTRUCT AND OPERATE. § 3 toad and other transportation companies.? 6 And while the word " railroad " in an act of the legislature is ordinarily held not to include a street railway, this is not an arbitrary and inflexible rule and where street railways are within the spirit or purpose of the law, although not expressly named, they have been regarded as covered by the general term " railroad." 17 § 3. Distinguished from railroads. — Street railroads have many of the characteristics of ordinary commercial or general traffic railroads, but differ widely from them in their essential char- acteristics, notably, in the purposes for which they are chiefly used, in that their right in a street or highway is subordinate to the right of the public therein, and in their being peculiarly sub- ject in the location and use of their tracks and the operation of (Appeal of Montgomery) 136 Pa. St. 96, 20 Atl. 399; Shipley v. Conti- nental E. Co., 13 Phila. (Pa.) 128; Millvale Borough v. Evergreen Ry. Co., 131 Pa. St. 1, 18 Atl. 988. An elevated steam railroad oper- ated in a, street to convey passengers to different portions of the city is a railway and not a street railway within the meaning of a statutory or code provision requiring compensa- tion to owners of lots abutting on streets in which a, railroad may be laid. Freiday v. Sioux City Rapid Transit Co., 92 Iowa 191, 60 N. W. 656, 26 L. R. A. 246. 16. Railroad Comrs., Board of v. Market St. Ry. Co., 132 Cal. 677, 64 Pac. 1065, 53 Cent. L. J. 268. The case also decided that a legislative inter- pretation of a constitutional provi- sion contemporaneous with its adop- tion might be considered by the courts in an interpretation of a doubtful provision thereof, and held that street railroad companies were ex- pressly excepted from the act denning transportation companies as includ- ing all companies owning and oper- ating railroads other than street rail- roads. In the opinion of Cooper, C, the following appears : " But, inde- pendent of a contemporaneous inter- pretation so given to the Constitu- tion by the legislature, we think the interpretation correct, and that the words ' railroad company ' were not intended to mean street railway. In the ordinary acceptation of the term ' railroad company ' or ' railroad,' it is not understood to mean a street railway engaged in the business of carrying passengers the entire dis- tance, or any part of the distance, over which the road runs, for one and the same fare.'' In Georgia it is held that though the general assembly had in 1891 no power to confer on street car compa- nies the authority to become common carriers of freight, the grant of such authority would not in any way affect other powers which had been lawfully granted to such companies. Brown v Atlanta Railway & Power Co., 113 Ga. 462, 39 S. E. 71, Rev. Stat.^ §§ 2780-17. 17. Kansas City Outer Belt & Electric R. Co. v. Board of Railroad Commissioners, 73 Kan. 168, 4 St. Ry. Rep. 318, 84 Pac. 755. § 3 THE BIGHT TO C01TSTBUCT AND OPERATE. their roads to the regulations of municipal authorities. 18 The chief characteristics of a street railway is that it is built upon and passes along streets and avenues for the convenience of those 18. In De Grauw v. long Island Elec. R. Co., 43 App. Div. (N. Y.) 502, 508, 60 N. Y. Supp. 163; affd., 163 N. Y. 597, 57 N. E. 1108, the court, per Hatch, J., sa^d : " By- familiar rules, therefore, we must hold that the authority existed when this contract was made to convey both passengers and freight over the defendant's lines and to contract for cars to run thereon for the exclusive carriage of passengers and for the ex- clusive carriage of freight. Such is the language of the statute. It is undoubt- edly true that the defendants, as to whatever right they have acquired to transport passengers, or freight, or property, have a vested right which may not be defeated or impaired by legislation. Such is the effect of the decisions. Ingersoll v. Nassau Elec. R. Co., 157 N. Y. 453, 52 N. E. 545; Roddy v. Brooklyn City & Newtown R. Co., 32 App. Div. (N. Y.) 311, 52 N. Y. Supp. 1025. But we do not apprehend that such fact, nor our present construction of the stat- ute will entail all of the evils which the appellant insists must follow in the train of such result. It can never happen that the right of use con- ferred by the franchise granted street surface railroads will result in the operation of long trains for the trans- portation of either passengers or property. Commercial railroads do not furnish a parallel of use. The latter are constructed upon the prop- erty of the corporation over which, except for purposes of crossing and otherwise in a very limited way, the general public do not travel, and have thereon, except for the purpose of transportation, no right. This con- dition is created for the express pur- pose of furnishing facilities for the hauling of long consolidated trains, which may be operated for the reason that all else is excluded except such operation. The grant of power to these corporations was conditioned upon the creation of such surround- ings as would enable them to so oper- ate without detriment to the public, and without interfering with or tres- passing upon its rights. No such conditions surround a street surface railroad; the use of the street by the railroad is subordinate to the right of the public therein. In the struggle which is going on for the transporta- tion of persons and property, it must be confessed that street surface rail- roads are not backward in the asser- tion of all the rights which the grant of power confers. But the law is, and the courts may be relied upon to enforce the law, that the right of use of the street by the public is first and primary; the right of use by the street surface railroad is secondary and subordinate. It has the para- mount right of use of its tracks, but not the exclusive use, and when the right of the public or an ■ individual member of it requires the use of the street for a proper purpose, the right of the railroad company must yield thereto, even though the effect be, for the time, to stop the operation of its cars thereon. Black v. Staten Island E. R. Co., 40 App. Div. (N. Y.) 238, 57 N. Y. Supp. 1112." In Central Nat. Bank v. Worcester Horse R. Co., 13 Allen (Mass.) 105, there was a statute providing that any corporations created by the State "except railroad and banking corpo- 10 THE EIGHT TO CONSTRUCT AND OPEEATE. § 3 moving from place to place thereon. Its fundamental purpose is to accommodate street travel, and not to travel to or from points beyond the city's lines. 19 In the technical sense a street railway is not a railroad. A " railroad " and a " street railroad " are, both in their technical and popular import, as distinct and different things as " a road " and " a street " or as a " bridge " and a " railroad bridge." 20 A railroad is for the use of the uni- versal public in the transportation of all persons, baggage and other freight; a street railway is dedicated to the more limited use of the local public for the more transient accommodation of persons only and within the limits of the city. 21 The main dis- tinction is that a street railway is operated upon the street in aid of the street as a highway. It is operated for the use and benefit of persons desiring to be transported along the street. A com- mercial railroad gathers its business at termini and operates from place to place. 22 The word " railroad " as ordinarily used ap- plies to commercial railways engaged in the transportation of freight and passengers for long distances and as a general rule having steam engines for motive power and making stops at regular stations for the receipt and discharge of freight and pas- sengers. " Street railroad," however, applies only to such roads as are laid upon the surface of the street, so that the public are rations," might institute proceedings and is, therefore, made by statute in insolvency. It was held that the peculiarly subject, in the location and exception embraced street railway use of its tracks, to the regulations corporations. The court, by G-bay, J., of municipal authorities." after reviewing the chief character- 19. City of Aurora v. Elgin & A. istics of railroad corporations, said: S. Traction Co., 227 111. 485, 81 N. "A ' horse railroad company,' or, as E. 544, 5 St. Ry. Rep. 172. it is more frequently and more ap- 20. Louisville & Portland R. Co. propriately called in recent statutes, v. Louisville City Ry. Co., 2 Duv. a 'street railway corporation,' has (Ky.) 175, quoted with approval in all these attributes, and is none the Front St. Cable Ry. Co. v. Johnson, less a 'railroad corporation,' less pub- 2 Wash. St. 112, 25 Pac. 1084, 11 L. lie in its character, or more fit to R. A. 693. have its franchise and property trans- 21. Thompson-Houston Co. v. ferred to assignees under proceedings Simon, 20 Oreg. 60, 25 Pac. 147, 10 in insolvency, because it more gen- L. R. A. 251, 23 Am. St. Rep. 86. erally uses horses instead of steam 22. Minneapolis & St. Paul Sub. power to draw its cars, and lays its Ry. Co. v. Manitou Forest Syndicate, rails over land already devoted to the 101 Minn. 132, 5 St. Ry. Rep. 531, public use for a street or highway, 112 N. W. 13. 11 §4 THE BIGHT TO CONSTBUCT AMD OPEBATE. not excluded from the use of the street as a public highway and which are run at a moderate speed compared to that of steam rail- roads and which stop at crossing or other places irregularly for the receipt and discharge of passengers. 23 § 4. Use and not motive power determines. — The determination of the question whether a railroad is a street railroad or a com- mercial railroad is dependent not upon the character of the motive power employed, but upon the character of the use. 24 It can make no difference whether the cars of a railroad company are propelled by the agency of steam, or of gasolene, or of electricity, compressed air, liquified air or any other agency which science and the inventive genius of man in the future bring into use. Rather, the character of a railroad company is determined by the 23. Bloxham v. Consumers' Elec- tive L. & St. R. Co., 36 Fla. 519, 18 So. 444, 29 L. R. A. 507, 51 Am. St. Hep. 44. A railroad, the rails of which are so laid as to conform to the grade of the street, and which is otherwise so constructed that the public is not ex- cluded from the use of any part of the street as a public highway, the cars upon which are propelled at a moderate rate of speed, compared with the speed of traffic railroads, at short intervals, carrying only passen- gers from one part of a thickly popu- lated district to another, in a town or city and its suburbs, stopping at every street crossing to receive and discharge passengers, is a street sur- face railroad, no matter whether the cars are propelled by animal or me- chanical power. Williams v. City El. St. Ey. Co., (C. C. E. D. Ark.) 41 Fed. 556, 43 Am. & Eng. E. Cas 215, 7 E. R. & Corp. L. J. 448. A railroad on private land just inside the fence along a turnpike road, and not upon a street or highway, is not within the Pennsylvania statute pro- viding for the formation of street railway companies. Gay v. Bristol, etc., Co., (C. P.) 22 Pa. Co. Ct. 465. But under Pennsylvania Act of May 14, 1889, electric railways are not limited to building their lines upon streets or roads within boroughs or cities. Conshohocton v. Pa. Ey. Co, (C. P.) 15 Pa. Co. Ct. 45. A street railway differs from the ordinary railway running from one State or town to another, part of which may chance to be located on a highway in certain essential charac- teristics. Its tracks conform to the established grade of the highway. It has no exclusive privilege as to their use. Its mode of using the street does not necessarily or naturally ren- der that part of it which it occupies, whether by its tracks or its poles and wires, impassible or seriously incon- venient for ordinary travel. Canas- tota Knife Co. v. Newington Tram- way Co., 69 Conn. 146, 36 Atl. 1107. 24. Minneapolis & St. Paul Sub. Ey. Co. v. Manitou Forest Syndicate, 101 Minn. 132, 5 St. Ey. Eep. 531, 112 N. W. 13; Eiggs v. St. Francois County Ey. Co., 120 Mo. App. 335, 96 S. W. 707, 5 St. Ey. Rep. 577. 12 THE EIGHT TO CONSTRUCT AND OPEEATE. § 5 nature and extent and limits put upon its operation by law or otherwise, and by the character and object of its corporate creation as shown by its charter. 25 So a railroad upon a city street, in the operation of which animal power is used, is not a street railroad where the main purpose thereof is to connect two lines of railroads coming into the city and to transfer freight cars from the terminus of one to the terminus of the other. 26 § 5. Location not confined to streets. — The location of street railroads is not confined strictly to streets, so called, under a stat- ute providing for their location on streets or highways. 27 They 25. Diebold v. Kentucky Traction Co., 117 Ky. 146, 77 S. W. 674, 2 St. Ey. Rep. 294, 63 L. E. A. 637, quoted in Wilder v. Aurora, DeK. & E. Elec. Tr. Co., 216 111. 493, 5 St. Ey. Eep. 185, 75 N". E. 194. 26. Carli v. Stillwater St. Ey. & T. Co., 28 Minn. 373, 10 N. W. 205, 41 Am. Eep. 290. 27. Pennsylvania Ey. Co. v. Greens- burgh & H. Electric St. Ey. Co., 176 Pa. St. 559, 35 Atl. 122, 27 Pittsb. L. J. (N. S.) 134. It is none the less a street surface railroad when it is organized under the Surface Eailroad Law, although it chooses to pass for a. portion of its route over its own property, and not within the bounds of the public highways. Matter of Syracuse & So. Bay E. Co., 33 Misc. Eep. (N. Y.) 510, 514, 68 N. Y. Supp. 881; Gettysburgh Battlefield Assn. v. G. El. E. Co., (Pa. Atty.- Gen.) 2 Pa. Dist. 659. See also Far- num v. Haverhill & A. St. Ey. Co., 178 Mass. 300, 59 N. E. 755. Where a city authorized a street railroad to lay its track along a street which ran through a yard of a steam railroad company, the latter had no ground of complaint justifying the issuing of an injunction. Texas & Pac. E. Co. v. Eosedale St. E. Co., 64 Tex. 80, 53 Am. Eep. 739. Where the statute permits it, » borough ordinance permitting, with the consent of the property owner, a divergence from a highway for a quarter of a mile over private prop- erty and crossing the highway, can- not be questioned in a proceeding by residents and property owners of the borough. Keough v. Pittston, etc., E. Co., 5 Lack. Leg. N. (Pa.) 242. A corporation will not be allowed to appropriate and construct a street railroad over a. roadway which has been improved at private expense, when there are other roadways that will answer equally as well the pur- poses of the public. In re Port Ches- ter St. Ry. Co., 43 App. Div. (N. Y.) 536, 60 N. Y. Supp. 160. A local passenger railroad built along a turnpike outside the city limits, under a contract purchas- ing the privilege from the turnpike company, and for which no street franchise of any kind whatever has been conferred by the city, does not, upon the extension of the city limits to include » portion of the road, be- come a " street railway " within the Maryland laws, imposing a park tax of nine per cent, upon gross receipts from all street railway lines within the city limits. Baltimore v. Balti- more, C. & E. M. Pass. E. Co., 84 13 8 O THE EIGHT TO CONSTRUCT AND OPERATE. may be constructed in part through lands acquired by purchase which are outside the limits of streets and highways. 28 So they may diverge for a short distance where the conformation of the surface or the position of streams make it necessary in order to avoid discomfort or damage to the traveling public; but that a 6treet railway may, like a steam railway, locate its route not for the accommodation of local travel along the highways, but to reduce time and distance for passengers traveling from city to city or town to town across the country, is said to be a proposition not to be entertained. It involves a perversion of the character and object of street railways. 29 § 6. Legal status of street railroads. — Street railroads, like general traffic railroads, although private property in that they are constructed, owned, and operated by private corporations or individuals, are yet of a quasi public nature, and their use is a public use. They are, therefore, to be regarded, as to their pur- pose, which is the transportation of persons and property for the public, as highways, in which the public have an easement closely similar to that possessed in public highways. 30 The occupancy is Md. 1, 35 Atl. 17, 33 L. R. A. 503. their lines upon streets or roads with- And see New Orleans City & L. R. in boroughs or cities. Conshohocton Co. v. Watkins, 48 La. Ann. 1550, 21 v. Pa. Ry. Co., (C. P.) 15 Pa. Co. Ct. So. 199. 45. But a railroad constructed in the Does not include railway in country and without regard to roads, part. — A street railway, ex vi ter- for a considerable distance, for trans- mini, imports a railway in a street, porting persons from one city to an- whether it be propelled by horses or other, is rural rather than urban, electricity, and does not include a though it confine its business to car- passenger railway in a park. Phila- rying passengers only, and is oper- delphia v. McManes, 175 Pa. St. 28, ated by a street railroad company. 34 Atl. 331. Hanna v. Met. St. R. Co., 81 Mo. 28. Farnum v. Haverhill & A. St. App. 78. A railroad on private land Ry. Co., 178 Mass. 300, 59 N. E. 755. just inside the fence along » turn- 29. Rahn Township v. Tamaqua pike road, and not upon a street or & Lansford St. Ry. Co., 167 Pa. St. highway, is not within the Pennsyl- 84, 31 Atl. 472, wherein the court, vania statute providing for the forma- however, says that these remarks are tion of street railway companies. obiter dicta. Gay v. Bristol, etc., Co., (C. P.) 22 30. In the case of Olcott v. Pond Pa. Co. Ct. 465. But under Pennsyl- du Lac Co., 16 Wall. (U. S.) 678, 21 vania Act of May 14, 1889, electric L. ed. 382, the court, by Strong, J., railways are not limited to building said: "Whether the use of a rail- 14 THE EIGHT TO CONSTRUCT AND OPERATE. § 6 in common with that of the general public, all persons being at liberty to drive upon and over them where they are laid in the road is a public or private one de- pends in no measure upon the ques- tion who constructed it or who owns it. It has never been considered a matter of any importance that the road was built by the agency of a private corporation. No matter who is the agent, the function performed is that of the State. Though the ownership is private, the use is pub- lic. So turnpikes, bridges, ferries, and canals, although made by indi- viduals under public grants, or by companies, are regarded as publici juris." Charles River Bridge v. War- ren Bridge, 7 Pick. (Mass.) 495, 11 Pet. (U. S.) 419. So also it is held that although built and operated by private corporations, railroads are in one sense public works. They are for the accommodation of the public and are allowed and protected in their franchises, by the public law. Worcester v. Western B. Co., 4 Mete. (Mass.) 564. Again, in Holladay v. Davis, 5 Oreg. 40, it is said that they are guasi-public ; that is, they are public to such an extent that the public interest is involved in their being rightfully located, and that in consequence of this, a contract to in- fluence the location by personal bene- fit to the locator is void as against public policy. Holliday v. Patterson, 5 Oreg. 177. See also Newburyport Turnpike Co. v. Eastern B. Co., 23 Pick. (Mass.) 326; Com. v. Wilken- son, 16 Pick. (Mass.) 175; Gibson v. Mason, 5 Nev. 283; Stewart v. Erie, etc., Transp. Co., 17 Minn. 372; Cen- tral, etc., B. Co. v. Bockafellow, 17 111. 541 ; Davidson v. Bamsey Co., 18 Minn. 482; Weir v. St. Paul, etc., Co., 18 Minn. 155; Burlington, etc., B. Co. v. Spearman, 12 Iowa, 117; Bradley v. N. Y., etc., B. C6., 21 Conn. 294; Mayor, etc., of Baltimore v. Baltimore, etc., R. Co., 21 Md. 50. Right of eminent domain. — Therefore the right of eminent do- main may be exercised to secure for street railroads a right of way. Union Depot B. Co. v. Southern B. Co., 105 Mo. 562, 16 S. W. 920; St. Louis B. Co. v. Southern B. Co., 105 Mo. 577, 46 Am. & Eng. E. Cas. 1, 16 S. W. 960; Tex., etc., E. Co. v. Bosedale St. B. Co., 64 Tex. 80, 22 Am. & Eng. R. Cas. 160, 53 Am. Eep. 739; In re Petition of Kerr, 52 Barb. (N. Y.) 119. Where a railroad traok is laid down in a street, by authority of the city council, to connect a pri- vate manufacturing establishment with other railroad tracks, it becomes a public highway, and the city coun- cil has a right to devote a portion of the street to that use; the remedy if a person sustaining injuries thereby is at law, and chancery cannot con- trol the manner in which the right shall be exercised. Parlin v. Mills, 11 111. App. 396. The ground upon which private property may be taken for railroad uses is primarily that such railroads are " highways " or " im- proved public ways." In re Niagara Falls & W. By. Co., 108 N. Y. 375, 15 N. E. 429. And it was held in that case that a road which could only be operated in summer, which was solely to enable summer visitors to see the Falls better, and along whose route there could be no habitations, traffic, or business, was not a public high- way, and therefore could not be en- titled to the right of eminent domain. Railroads are not private affairs but public improvements, and it is the right and duty of the 15 § 6 THE EIGHT TO CONSTRUCT AND OPEEATE. traveled portion of the street. 31 These corporations created and endowed with special powers by the State, not with the view of promoting the private advantages of the stockholders, but rather in the interest of the public, are to be regarded as quasi public corporations, subject to special control by the government. 32 State to advance the commerce and promote the welfare of the people by making or causing them to be made at the public expense. Sfaarpless v. Mayor, etc., of Philadelphia, 21 Pa. St. 147, 59 Am. Dec. 759. In New Jersey it is said that railroads con- structed under the General Railroad Law of that State become ipso facto public, because the public have the right of passage thereon, by paying reasonable and uniform tolls; and this regardless of the motives of their projectors or the generality of their probable use. National Docks R. Co. v. Central R. Co., 32 N. J. Eq. 755; Messenger v. Pennsylvania R. Co., 37 N. J. L. 531. But the people cannot maintain an equitable action to com- pel a railroad company to operate a part of its route which it has aban- doned. The only remedy is by man- damus, quo warranto, or indictment. People v. Albany, etc., R. Co., 24 N. Y. 261. A railroad which legally for- feits its charter remains what it was, a public highway. The corporation loses its franchise, which passes ro the State. Erie, etc., R. Co. v. Casey, 26 Pa. St. 287. Railroads public highways. — In some instances railroads have been declared by statute to be public high- ways. See Com. v. Fitchburg R. Co., 12 Gray (Mass.) 180; Trunick v. Smith, 63 Pa. St. 18. And by the Constitutions of many of the States, railroads are declared to be public highways; in others, to be common carriers free to all persons for the transportation of themselves and their property. See Stimsons Am. Stat. Law, § 460, citing the Constitutions of Pennsylvania, Illinois, Nebraska, West Virginia, Missouri, Arkansas, Texas, California, Colorado, Alabama, and Louisiana. See also Const, of Mississippi (1890), § 180. And by the Nebraska Constitution it is pro- vided that the liability of railroads as common carriers can never be lim- ited. Nebraska Const. 1875, art. 11, § 4. 31. City of Detroit v. Detroit United Ry., 133 Mich. 608, 95 N. W. 736. Street railways have no supe- rior or predominant right to the use of the streets upon which their tracks are located, over the right of other users except the right of way when they require it. Indianapolis Trac- tion & Term. Co. v. Kidd, 167 Ind. 402, 5 St. Ry. Rep. 204, 79 N. E. 347. See also Daniels v. Bay City Trac- tion & Electric Co., 143 Mich. 493, 5 St. Ry. Rep. 510, 107 N. W. 94; Weinberger v. North Jersey St. Ry. Co., 73 N. J. L. 694, 5 St. Ry. Rep. 711, 64 Atl. 1059. 32. Thus, it is said in Beach on Railways, § 23: "In that they de- rive certain prerogative franchises from the sovereign power, such as the right of eminent domain, and the right to levy tolls for the carriage of passengers and freight, in return for which concessions the State retains over them a power of supervision not exercised over strictly private corpo- rations — they are to be considered public corporations." See also New- buryport Turnpike Co. v. Eastern R. Co., 23 Pick. (Mass.) 326; Worces- 1fi THE EIGHT TO CONSTRUCT AND OPERATE. § < Street railway companies are common carriers, and liable, like other common carriers, upon common-law principles, independent of contract. They are always common carriers of passengers for hire, with rights, duties, and liabilities similar to those of general railroad companies. They may be carriers of goods, also, when expressly authorized by statute, or when organized under general laws not limiting their powers, or, under special circumstances, when organized only for the purpose of carrying passengers. 33 A street railway is an internal improvement within the meaning of a constitutional provision that the State shall not be a party to or interested in any work of internal improvement and this pro- vision is construed as prohibiting a municipality as well as the State at large from engaging in the construction or operation of a street railway. A work of this character is to be distinguished from a public lighting system which tends to the suppression of crime and the safety of travelers and also from the right to con- struct and maintain parks, waterworks, and sewers as one of the grounds upon which the right to maintain these is based is that of tending to promote the public health. 34 § 7. To whom right to operate may be granted. — In the absence of constitutional prohibition, the legislature may give to individ- uals the right to construct and operate a street surface or other railroad. And such railroad will be deemed to be constructed and ter v. Western R. Co., 4 Mete. R. Co. v. Godola, 50 Neb. 906, 70 JST. (Mass.) 554; McCoy v. Cincinnati, W. 491, 7 Am. & Eng. R. Cas. (N. S.) etc., R. Co., 13 Fed. 3, 6 Am. & Eng. 300; Thompson-Houston Elec. Co. v. R. Cas. 621. Simon, 20 Oreg. 60; Citizens' St. 33. Spellman v. Lincoln Rapid Ry. Co. v. Twiname, 111 Ind. 587, 13 Transit Co., 36 Neb. 890, 20 L. R. A. N. E. 55. Railway companies are 316, 55 N. W. 270; Lincoln St. R. bound to use reasonable care and dili- Co. v. McClellan, 54 Neb. 672, 74 N. gence in the conveyance of passen- W. 1074; Topeka City R. Co. v. gers; but they are not common car- Higgs, 38 Kan. 375; Meier v. Penn. riers of passengers, and are not un- R. Co., 64 Pa. St. 225; Indianapolis der obligation to carry safely. East & St. L. R. Co. v. Horst, 93 U. S. Indian Ry. v. Kalidas Mukerjee, 291, 3 Am. Rep. 581; Dean v. Chicago (Eng.) 70 L. J. P. C, 63 App. Cas. G. R. Co., 64 111. App. 165; Citizens' 396, 84 L. T. 210. St. R. Co. of Indianapolis v. Merl, 34. Bird v. Common Council of 134 Ind. 609, 33 N. E. 1014. See City of Detroit, 148 Mich. 71, 111 N. also section 1, ante. East Omaha St. W. 860, 5 St. Ry. Rep. 456. 2 17 8 ' THE EIGHT TO CONSTEUCT AND OPEEATE. operated for public use. The legislature may, in the absence of such prohibition, delegate to individuals and their assigns the right of eminent domain as well as to corporations or joint-stock companies. As a matter of fact, however, nearly all street rail- roads are the property of private corporations, acting under charters from the State in which their road is located. 35 And a 35. Henderson v. Ogden City R. Co., 7 Utah 199, 46 Am. & Eng. R. Cas. 95; N. Y., etc., R. Co. v. Forty- Second St. R. Co., 50 Barb. (N. Y.) 309. See also Budd v. Multnomah St. R. Co., 15 Oreg. 404, 40 Am. & Eng. R. Cas. 551, 3 Am. St. Rep. 169; Matter of Kerr, 42 Barb. (N. Y.) 119, 25 How. Pr. (N. Y.) 258. In N. Y. & H. R. Co. v. Forty-second St., etc., R. Co., 50 Barb. (N. Y.) 309, 311, the court said: "There is no constitutional provision that pro- hibits such franchise being conferred upon or exercised by individuals ; nor does there appear to be any objec- tion to making such rights assign- able. The legislature had the power to grant this franchise. The expedi- ency and necessity of granting, the propriety of granting it to a corpora- tion, or a set of individuals, and their assigns; the safeguards and restric- tions to be placed upon the use — are all, unless some constitutional inhibi- tion is violated, entirely in the dis- cretion of the legislature. In Nash v. Lowry, 37 Minn. 261, 33 N. W. 787, it was held that where a munici- pal council had granted the right to lay street railroad tracts, and the or- dinance had been confirmed by the legislature, it was immaterial whether the grant of such' right constituted » corporation or only a partnership. But a railroad for private use may not be laid in a city street, even with the consent of the city. Mike- sell v. Durkee, 34 Kan. 509, 9 Pac. 278. The corporate authorities of New York city have the control of the streets of that city in trust. The use of those streets is to be limited or extended for the public benefit from time to time as occasion may require; and the corporate powers in this regard can neither be delegated to others, nor effectually abridged by any act of the corporate authorities. Power cannot be conferred upon indi- viduals, by contract, for an indefinite period, to construct and operate a railroad in the public streets for their private advantage. Such power would seem to amount to a freehold interest in the soil of the streets. Milhaw v. Sharp, 27 N. Y. 611. And see People v. Kerr, 27 N. Y. 188; Presbyterian Church v. Mayor, etc., 5 Cow. (N. Y.) 538; Goszler v. Georgetown, 6 Wheat. (U. S.) 593, 19 L. ed. 133; Potter v. Collis, 156 N. Y. 16, 50 N. E. 413. A street railway franchise granted by a city is null and void, where it was in- tended for private and not for public purposes. And the defect is not cured because the immediate purpose of the persons who procured it was to trans- fer the same to another party. San Antonio v. Rische, (Tex. Civ. App.) 38 S. W. 388. Rapid transit acts. — Sun Pub. Ass'n v. City of New York, 152 X. Y. 257, 46 N. E. 499. The case last cited established the validity of what are called the Rapid Transit Acts (Laws 1894, chap. 752, Laws 1895, chap. 519, amending Laws 1891, chap. 4), which authorizes cities of over a 18 THE EIGHT TO CONSTRUCT AND OPERATE. § 7 municipality itself may build and operate a railroad, and such railroad is a highway and may properly be deemed to be for a public purpose within the meaning of the provision of the Con- stitution which prohibits cities from incurring any indebtedness million inhabitants to construct rail- roads therein, which should be deemed public highways, at their own expense, if so determined by the vote of a majority of the electors, and to issue bonds in payment therefor. As stated in the opinion, "The acts, in brief, create » rapid transit commis- sion and provide that the commission- ers shall, in case they deem it neces- sary, and upon the written request of the local authorities, proceed to lo- cate a route and provide the plans and specifications for a railway through the city. That, after they shall have so located the route and provided the plans upon which the railway should be built, they may sell at public auction the right, privilege, and franchise to construct, maintain, and operate such railway; or, if the people shall determine by the vote of a majority of the electors that such railway shall be constructed for and at the expense of the city, then the commissioners shall enter into a con- tract with any person, firm, or cor- poration best qualified in their opin- ion to fulfil and carry out the con- tract, for the construction of such route upon the route, and in accord- ance with the plans and specifications adopted. In case the road shall be built at the expense of the municipal- ity, the officers of the city, upon requisition of the commissioners, are required to issue the bonds of the city, to the amount of $55,000,000, payable in gold, with interest not to exceed 3% per cent., free from taxes, with which to pay for such construc- tion. It is further provided that the commissioners may also enter into a contract with the contractors for the building of the road, for the lease and operation of the same for a period not less than thirty-five years, nor more than fifty years, at a rental agreed upon, to be not less than the interest on the sum paid by the city for the construction, and 1 per cent, in addition, and that the same may be renewed from time to time, as the lease shall expire, upon such terms as shall be agreed upon; that in case of default in paying the annual rental provided for, or in case of the failure or neglect on the part of the con- tractors to faithfully observe and ful- fil the requirements of the contract, the city, by its rapid transit commis- sioners, may take possession of the road and equipments, and as the agents of the contractors, either main- tain and operate the road at their expense, and upon their liability, or enter into a new contract with other persons for its operation. The acts also provide that in case the road shall be constructed by the munici- pality, it shall be and remain the ab- solute property of the city, and shall be deemed to be a part of the public streets and highways of the city, to be used and enjoyed by the public, upon the payment of such fares and tolls, and subject to such reasonable rules and regulations, as may be im- posed and provided by the board of rapid transit commissioners." Judge Haight also stated in his opinion in the case, that in recent years rail- roads have been constructed and come into general use, so that now a very large percentage of the transporta- tion of the country is done upon these 19 § v THE EIGHT TO CONSTRUCT AND OPERATE. except for a city purpose. 36 And it has been decided that although the Railroad Law contemplates that railroads are generally to be constructed and operated through the medium of corporations roads; and in the year 1893 465,- 000,000 persons were transported over the railroads in the city of New York. He said that they were not common highways in the sense that they are under the care and manage- ment of the municipality, but as to their purpose, which is the transpor- tation of persons and property for the public, they are as distinctly highways as the ordinary street; and the fact that a uniform fee is charged for persons taking passage over them does not differentiate them from other highways. The word " purchasers " in Ala- bama Code authorizing purchasers at a judicial sale of a street railroad franchise to organize as » corporation embraces subpurchasers. Birming- ham Railway & Electric Co. v. Bir- mingham Traction Co., 128 Ala. 110, 29 So. 187. 36. Sun Printing & Publishing Ass'n v. City of New York, 152 N. Y. 257, 46 N. E. 499. The case cited established the validity of what are called the Rapid Transit Acts (Laws 1894, chap. 752, Laws 1895, chap. 519, amending Laws 1891, chap. 4), which authorizes cities of over a mil- lion inhabitants to construct rail- roads therein, which should be deemed public highways, at their own ex- pense, if so determined by the vote of a majority of the electors, and to issue bonds in payment therefor. As stated in the opinion, " The acts, in brief, create a. rapid transit commis- sion and provide that the commission- ers shall, in case they deem it neces- sary, and upon the written request of the local authorities, proceed to locate a route and provide the plans and specifications for » railway through the city. That, after they shall have so located the route and provided the plans upon which th? railway should be built, they may sell at public auction the right, privilege, and franchise to construct, maintain, and operate such railway; or, if the people shall determine by vote of a majority of the electors that such railway shall be constructed for and at the expense of the city, then the commissioners shall enter into a con- tract with any person, firm, or cor- poration best qualified in their opin- ion to fulfil and carry out the con- tract, for the construction of such road upon the route, and in accord- ance with the plans and specifications adopted. In case the road shall be built at the expense of the municipal- ity, the officers of the city, upon requisition of the commissioners, are required to issue the bonds of the city, to the amount of $55,000,000, payable in gold, with interest not to exceed 3y 2 per cent., free from taxes, with which to pay for such construc- tion. It is further provided that the commissioners may also enter into a contract with the contractors for the building of the road, for the lease and operation of the same for a period not less than thirty-five years, nor more than fifty years, at a rental agreed upon, to be not less than the interest on the sum paid by the city for the construction, and 1 per cent, in addition, and that the same may be renewed from time to time, as the lease shall expire, upon such terms as shall be agreed upon; that in case of default in paying the annual rental provided for, or in case of the failure 20 THE BIGHT TO CONSTRUCT AND OPERATE. § 7 organized for that express purpose, a municipality can grant a franchise to an individual for the construction and operation of a street railroad and a hond given to secure the performance of a duty which is coupled with the right granted is valid. 37 But though natural persons cannot exercise the franchises which the State has conferred upon railroad corporations they may however be the conduit for transmitting them to another corporation in the manner provided by law ; they may bid in the property at a fore- closure sale, including the franchises, and hold and transmit it intact to a corporation authorized to exercise them. 38 And a rail- or neglect on the part of the con- tractors to faithfully observe and ful- fil the requirements of the contract, the city, by its rapid transit commis- sioners, may take possession of the road and equipments, and as the agents of the contractors, either main- tain and operate the road at their expense, and upon their liability, or enter into a new contract with other persons for its operation. The acts also provide that in case the road shall be constructed by the municipal- ity, it shall be and remain the abso- lute property of the city, and shall be deemed to be a part of the public streets and highways of the city, to be used and enjoyed by the public, upon the payment of such fares and tolls, and subject to such reasonable rules and regulations, as may be im- posed and provided by the board of rapid transit commissioners." Judge Haight also stated in his opinion in the case cited, that in recent years railroads have been constructed and come into general use, so that now a very large percentage of the trans- portation of the country is done upon these roads; and in the year 1893 465,000,000 persons were transported over the railroads in the city of New York. He said that they were not common highways in the sense that they are under the care and manage- ment of the municipality, but as to their purpose, which is the transpor- tation of persons and property for the public, they are as distinctly highways as the ordinary street; an'! the fact that a uniform fee is charged for persons taking passage over them does not differentiate them from othe 1- highways. 37. Village of Phrpnix v. Gannon, 195 N. Y. 471, 88 N. E. 1066. But where the statute authorizes the grant by a municipal corporation of a street railway franchise to .\ corporation only it has no power to grant such a franchise to an indi- vidual or individuals, and an ordi- nance to this effect is invalid. Wilder v. Aurora, DeKalb & R. Electric Traction Co., 216 111. 493, 75 N. E. 194. And where an ordinance granting such a franchise is invalid because granted to individuals contrary to the statute, the fact that it is granted to such individuals and their " assigns " and that such individuals subsequent- ly assign the privileges so granted to a corporation does not render it valid. Wilder v. Aurora, DeKalb & R. Elec- tric Traction Co., 216 111. 493, 75 N. E. 194. 38. Parker v. Ehnira C. & N. R. Co., 165 N. Y. 274, 281, 59 N. E. 81 21 THE EIGHT TO CONSTRUCT AND OPEEATE. road for private use may not be laid in a city street, even with the consent of the city. Any abutting lotowner whose lot is or may be injured may have a perpetual injunction. 39 § 8. Character of public streets and highways. — A public high- way is a road or passageway duly appropriated to the public, and 39. Mikesell v. Durkee, 34 Kan. 509, 9 Pac. 278. • The corporate authorities of New York city have the control of the streets in that city in trust. The use of those streets is to be limited or extended for the public benefit from time to time as occasion might require; and the corporate powers in this regard can neither be delegated to others, nor effectually abridged by any act of the corporate authorities. Power cannot be conferred upon in- dividuals, by contract, for an indefi- nite period, to construct and operate a railroad in the public streets for their private advantage. Such power would seem to amount to a freehold interest in the soil of the streets. Milhaw v. Sharp, 27 N. Y. 611. And see People v. Kerr, 27 N. Y. 188; Presbyterian Church v. Mayor, etc., 5 Cow. (N. Y.) 538; Goszler v. Georgetown, 6 Wheat. (U. S.) 593; Potter v. Collis, 156 N, Y. 16, 50 N. E. 413. So it is decided in a recent case that the board of estimate and ap- portionment of the city of New York has no authority to grant to the pro- prietors of a department store a per- mit to lay down private railroad tracks in front of their premises and operate express cars thereon for the conveyance of goods to their store from the street railroads, pursuant to section 242 of the Greater New York charter, and that an adjoining owner whose property will be dam- aged thereby is entitled to an injunc- tion restraining the taking of any steps under such permit. Hatfield v. Straus, 189 N. Y. 208, 82 N. E. 172, affg. 117 App. Div. 671, 102 N. Y. Supp. 934. A street railway franchise granted by a city is null and void, where it was intended for private and not for public purposes. And the defect is not cured because the immediate purpose of the persons who procured it was to transfer the same to an- other party. San Antonio v. Rische, (Tex. Civ. App.) 38 S. W. 388. A private corporation, in the ab- sence of either legislative or munici- pal permission, has no right to im- pose a permanent structure on a high- way and thereby sequester to its ex- clusive use and for its exclusive profit any portion thereof. Stamford v. Stamford R. Co., 56 Conn. 381, 15 Atl. 749, 1 L. R. A. 375. Where a municipality author- izes the construction of a. railroad track in a. way to connect a private manufacturing establishment with other railroad tracks, it becomes a public highway, and the city council may devote a portion of it to that use. The remedy of persons sustain- ing injuries thereby is at law, and chancery cannot control the manner in which the right should be exer- cised. Parlin v. Mills, 11 111. App. 396. A railroad corporation formed by only three persons, under a statute providing that corporations may be created by three or more per- sons for the purpose of constructing and operating street railroads in 22 THE EIGHT TO CONSTRUCT AND OPERATE. § 8 •which every citizen has the right to use, 40 subject to the condition that he does not unnecessarily interfere with the lawful exercise of a similar right by others. 41 A public street is a public road or way in a city, town, or village. 42 Streets and roads are public highways, under the control of cities and towns, subject to the paramount authority of the State. 43 The power and authority of the State, which is subject only to the property rights and ease- ments of abutting owners, may be, and usually is, delegated to the municipal and other local authorities, who thus have the power of control and supervision. 44 All streets are highways, but all highways are not necessarily streets. 45 The term " street," gen- erally, includes so much of the surface and so much of the space above and of the soil and depth beneath, as may be needed for the ordinary works which the local authorities may decide to execute on or in the street, including sidewalks. 46 In some cases, it is cities and towns for the transporta- tion of freight and passengers, is 'lot such a corporation as is contemplated by another statute requiring not less than ten persons as incorporators of a railroad company. Aycock v. San Antonio Brewing Ass'n, 26 Tex. Civ. App. 341, 63 S. W. 953. 40. Angell & Durfee on Highways (3d ed.), § 2; 3 Kent's Comm. 32; Makepeace v. Worden, 1 N. H. 16; Peck v. Smith, 1 Conn. 103; Stack- pole v. Healy, 16 Mass. 33; State v. Proctor, 90 Mo. 334; People v. Loeh- felm, 102 N. Y. 1, 5 N. E. 783; Man- chester v. City of Hartford, 30 Conn. 118; Elliott on Roads and Streets, p. 4. See chap. XVII., post, herein. 41. Indianapolis Traction & Term. Co., 167 Ind. 402, 5 St. Ry. Rep. 204, 79 N. E. 347; Indianapolis St. Ry. Co. v. Bolin, 39 Ind. App. 169, 5 St. Ry. Rep. 192, 78 N. E. 210. 42. " Strictly, a street is a paved way or road, but the term is used for any way or road in a city or village." Brace v. N. Y. Cent. R. Co., 27 N. Y. 271; Perrin v. N. Y. Cent. R. Co., 36 N. Y. 120; Elliott on Roads and Streets, p. 12; 2 Bouv. Law Diet.; State v. Moriarty, 74 Ind. 104; Heifle v. East Portland, 13 Oreg. 97; Com. v. Boston, etc., R. Co., 135 Mass. 551 ; Denver v. Clements, 3 Colo. 486. 43. Southwark R. Co. v. Philadel- phia, 47 Pa. St. 314; Branson v. Philadelphia, 47 Pa. St. 329. 44. Dillon on Mun. Corp. (4th ed.), §§ 656, 657; First Baptist Church v. Utica & Schenectady R. Co., 6 Barb. (N. Y.) 313; Kirtland v. Mayor, 66 Ga. 385; Savannah & T. R. Co. v. Savannah, 45 Ga. 602; Barnes v. District of Columbia, 91 U. S. 540; Northern Transp. Co. v. Chicago, 99 U. S. 635; Sinton v. Ash- bury, 41 Cal. 525; Portland & W. V. R. Co. v. Portland, 14 Oreg. 188, 12 Pac. 265, 58 Am. Dec. 299. 45. Common Council v. Croas, 7 Ind. 9; State v. Moriarty, 74 Ind. 104; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Benedict v. Gjit, 3 Barb. (N. Y.) 459; Penny Pot Landing, 16 Pa. St. 79; Tucker v. Conrad, 103 Ind. 355, 2 N. E. 803. 46. In re Burmeister, 76 N. Y. 23 § 9 THE EIGHT TO CONSTRUCT AND OPERATE. held to mean the roadway and gutters, or the space between the sidewalks. 47 The use made of the street denotes its character. 48 Ordinarily, and in fact wherever land is taken for highway pur- poses according to the course of the common law, the title to the soil over which highways and streets are laid, remains in the owners of the fee, subject only to the public easement. 49 A street which has been properly vacated no longer continues to be a street. 50 The Chaetee. § 9. A delegation of sovereign authority. — Municipal corpora- tions have no authority, in the absence of a delegation of power by the legislature, to grant a street railroad company the right to lay tracks in the streets. 51 The authority to make use of the public 174; Pomfrey v. Village of Saratoga Springs, 104 N". Y. 459, 11 N. E. 43; 20 Am. & Eng. Corp. Cas. 346; Bloomington v. Bay, 42 111. 503 ; Hall v. Manchester, 40 N. H. 410; Him- melman v. Satterlee, 50 Cal. 69; De- bolt v. Carter, 31 Ind. 355; Taber v. Grafmiller, 109 Ind. 206, 9 N. E. 721 ; Dooley v. Sullivan, 112 Ind. 371, 14 N. E. 566; Warner v. Knox, 50 Wis. 429, 7 N. W. 372. 47. Himmelman v. Satterlee, 50 Cal. 68; Dyer v. Chase, 52 Cal. 440; Philadelphia v. Lea, 9 Phila. (Pa.) 106; Dickenson v. Worcester, 138 Mass. 555; Wilson v. Alleghany, 79 Pa. St. 272; Reed v. Erie, 79 Pa. St. 346; Kokomo v. Mahan, 100 Ind. 242; Wiles v. Hoss, 114 Ind. 371, 22 Am. & Eng. Corp. Cas. 460, 16 N. E. 800. 48. Perrin v. N. Y. Cent. R. Co., 36 N. Y. 120. 49. State ex rel. Roebling v. Tren- ton Pass. R. Co., 58 N. J. L. (29 Vroom) 666, 6 Am. Electl. Cas. 137, 33 L. R. A. 129, 4 Am. & Eng. R. Cas. (N. S.) 392, 34 Atl. 1090. 50. Tomlin v. Cedar Rapids & Iowa City Ry. & L. Co., 141 Iowa 599, 120 N. W. 93, holding that an ordinance vacating a portion of a street, grant- ing its use for right of way pur- poses and conveying the fee to the State, is not objectionable as embrac- ing more than one subject, since its purpose is to convey the fee subject to the easement, and as the street when vacated becomes in effect the private property of the state, sub- ject to the right of way, a railway company may construct and operate its line over the same without pro- curing the usual franchise in such cases and without compensation in damages to abutting property owners. 51. Potter v. Collis, 156 N. Y. 16, 50 N. E. 413. The city authorities have no power to grant the right except so far as they may be author- ized by the legislature, and then only in the manner and upon the condi- tions prescribed by the statute. Davis v. Mayor, etc., 14 N. Y. 506; Milhaw v. Sharp, 27 N. Y. 611; Peo- ple v. Kerr, 27 ST. Y. 188 ; Detroit v. Detroit City Ry. Co., (C. C. E. D. Mich.) 56 Fed. 857, 56 Am. & Eng. R. Cas. 337; State, Jacksonville v. Jacksonville St. R. Co., 29 Fla. 590, 50 Am. & Eng. R. Cas. 179, 10 So. 24 THE EIGHT TO CONSTRUCT AND OPERATE. § 9 streets of a city for railroad purposes primarily resides in the State, and is a part of the sovereign power, and the right or priv- ilege of constructing and operating railroads in the streets, which for convenience is called a franchise, must always proceed from that source, whatever may be the agencies through which it is conferred. 52 The legislature may limit and restrict the authority a city has over its streets and may amend or repeal the charter of a municipal corporation at its pleasure. In the exercise of this power it may pass an act authorizing an interurban street railway company to run freight cars over its tracks without the consent of the city authorities and regulating the time and manner in which passengers and property shall be transported and the tolls and compensation to be paid therefor. 53 The legislative power, in this particular, is also subject to the limitation that the franchise must be granted for public, and not for private, purposes, or at least public considerations must enter into every valid grant of a right to appropriate a public street for railroad uses. 54 590. Although the word " railroads," when used in a statute, will generally he construed to embrace street passen- ger railroads, in a statute which pro- hibits the consolidation of competing railroad and canal companies (con- strued in the light of the remaining sections of that article, as well as that of its manifest pvpose) does not include such railroads. Mont- gomery v. Philadelphia City R. Co., 136 Pa. St. 96, 20 Atl. 399, 9 L. R. A. 369, 8 Ey. & Corp. L. J. 462, 26 W. N. C. 437. Corporations for the construction of street surface rail- ways in cities, organized under the enabling act of 1884, and the supple- mental acts, derive all their powers from the State, and none from the city or village where they may carry on their operations. People, West Side St. Ry. Co. v. Barnard, 48 Hun (N. Y.) 57, 15 St. Rep. (N. Y.) 689; revd. on other grounds in 110 N. Y. 548, 18 St. Rep. (N. Y.) 542, 18 N. E. 254. A street railroad company's charter granted by the secretary of state, confirmed and validated by the legislature, is a charter by the legislature of the State, so that the railroad may cross the tracks of any other railroad under certain condi- tions. Southern Ry. Co. v. Atlantic Ry. & Power Co., Ill Ga. 679, 36 g. E. 873. A street railway and an electric railroad designed to run beyond mu- nicipal limits may be incorporated under the same charter. Shreveport Trac. Co. v. Kansas City S. & G. R. Co., 119 La. 759, 5 St. Ry. Rep. 343, 44 So. 457. 52. Beekman v. Third Ave. R. Co., 153 N. Y. 144, 152, 47 N. E. 277; Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 307. 53. Roberts v. Terre Haute Elec- tric Co., 37 Ind. App. 664, 4 St. Ry. Rep. 254, 76 N. E. 323, 895. 54. Fanning v. Osborne, 102 N. Y. 441, 447, 7 N. E. 307. 25 § 10 THE EIGHT TO CONSTEUCT AND OPEEATE. § 10. Organization of corporation. — Street railroads are usu- ally organized under the same laws applicable to railroads gen- erally. 55 The legislature in nearly every State is required by the Constitution of such State to pass general laws for the formation of corporations. By these general laws, enacted under this re- quirement, corporate franchises are not directly conferred; they simply provide the mode in which such franchises may be acquired by those desiring them. 56 Individuals desiring to incorporate under a general law, determine for themselves the necessity of a corporation, their corporate name, what business they will carry on, where they will transact it, the amount of their capital, and the duration of their corporation. In making such determinations they do not confer upon themselves corporate franchises. They simply act under, apply and carry into effect the law in reference to which legislative power has been properly evoked. 57 Outside 55. So a statute authorizing rail- road companies to contract with each other for the use of their respective rights is applicable to street surface roads as well as to those operated by steam. Roddy v. Brooklyn City & N. R. Co., 32 App. Div. . R. Cas. 326; People v. Los Angeles ed. 116; Attorney-General v. Chicago Electric Ry. Co., 91 Cal. 338, 27 Pac. & Evanstown Ry. Co., 112 111. 611; 673; Nash v. Lowry, 37 Minn. 261, People v. Los Angeles Electric Ry. 33 N. W. 787. In the case last cited Co., 91 Cal. 338, 27 Pac. 673. An the common council of St. Paul, by ordinance granting a franchise for ordinance, granted a franchise for the the construction of a street railroad construction of a street railway, was adopted by the common council 40 THE BIGHT TO CONSTRUCT AND OPERATE. 15 is competent for the legislature by curative laws, when not re- strained by constitutional provisions, to make a void thing valid. 91 While all defects in the process of organization and formation of a railroad corporation may be cured by legislative recognition, 92 it cannot thus create a corporation where one de facto did not exist, 93 § 15. Charter, a contract; how construed. — The whole doctrine of vested rights as applied to the charters of corporations is based upon Dartmouth College v. Woodward, 94 in which the broad proposition was laid down that sueh charters were contracts within of St. Paul and subsequently by the legislature of Minnesota " confirmed and validated." Held, that thereafter the common council could not re- scind or revoke the right so granted. Nash v. Lowry, 37 Minn. 261, 33 X. W. 787. Certain grants or contracts under which inclined plane companies held a street railway at the time of its passage were validated by Ohio Act, March 30, 1877, granting to such companies the power to hold, lease, or purchase and maintain and oper- ate street railroads. Louisville Trust Co. v. Cincinnati, (C. C. App. 6th) 22 C. C. A. 234, 47 U. S. App. 36, 76 Fed. 296. 91. Walpole v. Elliott, 18 Ind. 258; Morris v. State, 62 Tex. 728; Mason v. Spencer, 35 Kan. 512, 11 Pac. 402; Walter v. Town of Union, 53 N. J. L. 350. A municipal ordi- nance granted to a street railroad company the right to construct and operate the road, using either horse or steam power; it was held void as being beyond the power of the mu- nicipality which could not authorize the use of the street by a steam rail- road without compensation to the owners of abutting property. Stange v. Hill & West Dubuque St. Ry. Co., 54 Iowa 669, 7 N. W. 115; Stanley v. Davenport, 54 Iowa 463, 2 N. W. 1064, 6 N. W. 706, 37 Am. Rep. 216. An act validating the ordinance by granting power to pass it was held void by reason of the constitutional provision against special legislation. Stange v. City of Dubuque, 62 Iowa 303, 17 N. W. 518, 14 Am. & Eng. R Cas. 107. In Ohio a validating act was held ineffectual because its opera- tion enabled the municipal officers to evade the general statutory provision requiring the franchise to be granted to the highest bidder. Knorr v. Mil- ler, 5 Ohio C. C. 609, 623; Mitchell v. Deeds, 49 111. 416, 95 Am. Dec. 621. 92. Caugh v. North Ave. R. Co., (Md.) 33 Atl. 463; McAuley v. Co- lumbus, etc., R. Co., 83 111. 348; Mc- Cartney v. Chicago, etc., R. Co., 112 111. 611, 29 Am. & Eng. R. Cas. 326; Black River, etc., R. Co. v. Barnard, 31 Barb. (N. Y.) 258; Baltimore, etc., R. Co. v. Marshall Co., 3 W. Va. 319; Cowell v. Colorado Springs Co., 100 U. S. (10 Otto) 55-61, 25 L. ed. 547, 3 Colo. 82; Mead v. N. Y., etc., R. Co., 45 Conn. 199; Illinois, etc., R. Co. v. Cook, 29 111. 237; Atlantic, etc., R. Co. v. St. Louis, 3 Mo. App. 315; affd., 66 Mo. 228. 93. Attorney-General v. Chicago, etc., R. Co., 35 Wis. 602. 94. 17 U. S. (4 Wheat.) 518, 4 L. ed. 629. ±1 § 15 THE BIGHT TO CONSTETTCT AND OPEEATE. the meaning of the Constitution, and hence that an act of the State legislature altering a charter in any material respect was unconstitutional and void. The doctrine of this case has been subjected to more or less criticism by the courts and the provision has been reaffirmed and applied so often as to become firmly established as a canon of American jurisprudence. 95 Subsequent cases have settled the law that, wherever property rights have been acquired by virtue of a corporate charter, such rights, so far as they are necessary to the full and complete enjoyment of the main object of the grant, are contracts, and beyond the reach of destructive legislation. 96 So, a statute repealing the charter of a street railroad company and transferring its franchise and track to another impairs the obligation of the contract of the charter, unless there is reserved to the legislature the right to repeal the statute under which the company was organized. 97 The United States Supreme Court has had perhaps more frequent occasion to assert the inviolability of corporate charters in cases respecting the power of taxation than in any other, and in a long series of decisions has held that the clause imposing certain taxes in lieu of all other taxes, or of all taxes to which the company or stock- holders therein would be subject, is impaired by legislation rais- ing the rate of taxation, or imposing taxes other than those specified in the charter. 98 Within the same principle are grants of an exclusive right to supply gas or water to a municipality, or to Occupy its streets for railway purposes. 99 So, if a company be 95. Pearsall v. Great Northern R. How.) 369, 14 L. ed. 977; New Jer- Co., 161 U. S. 646, 660, 16 S. Ct. 705, sey v. Wilson, 11 U. S. (7 Cranch) 40 L. ed. 838, 843. 164, 3 L. ed. 303; Gordon v.App. That franchise upon accept- Tax Court, 44 U. S. (3 How.) 133,11 ance a contract see chap. II., post, L. ed. 529; Dodge v. Woolsey, 59 U. herein. S. (18 How.) 631, 15 L. ed. 401; 96. Pearsall v. Great Northern R. Wilmington & W. R. Co. v. Reid, 80 Co., 161 U. S. 646, 661, 16 S. Ct. 705, U. S. (13 Wall.) 264, 20 L. ed. 568; 40 L. ed. 838, 843. New Jersey v. Yard, 95 U. S. 104, 24 97. Greenwood v. Union Freight L. ,ed.) 352; St. Anna's Asylum v. R. Co., 105 U. S. 646, 661, 40 L. ed. New Orleans, 105 U. S. 362, 26 L ed 838, 843. 1128. 98. Pearsall v. Great Northern R. 99. Pearsall v. Great Northern R. Co., 161 U. S. 646, 662, 16 S. Ct. 705, Co., 161 U. S. 646, 663, 16 S. Ct. 705, 40 L. ed. 838, 843; Piqua Branch of 40 L. ed. 838, 844; New Orleans Gas State Bank v. Knoop, 57 U. S. (16 Light Co. v. Louisiana Light & Heat 42 THE EIGHT TO CONSTRUCT AND OPEEATE. § 15 chartered with power to construct and maintain a turnpike, erect tollgates, and collect tolls, such franchise is protected by the Con- stitution. 1 In these cases, however, the title to property had either become vested in the grantee by operation of law, or the exercise of the power granted was so far necessary to the full enjoyment of the main object of the charter that persons subscribing to the stock might be presumed to take into consideration, and be in- fluenced in their subscription, by the fact that the corporation was endowed with those privileges during the continuation of the charter. 2 Such limitations, however, upon the power of the legisla- ture must be construed in subservance to the general rule that grants by the State are to be construed strictly against the grantees, and that nothing will be presumed to pass except it be expressed in clear and unambiguous language. 3 Hence an ex- clusive right to enjoy a certain franchise is never presumed, and unless the charter contain words of exclusion it is no impairment of the grant to permit another to do the same thing, although the value of the franchise to the first grantee may be wholly de- stroyed. 4 Nor does it follow, from the fact that the contract evidenced by the charter cannot be impaired, that the power of the legislature over such charter is wholly taken away, since stat- utes which operate only to regulate the manner in which the franchises are to be exercised, and which do not interfere sub- stantially with the enjoyment of the main object of the grant, are Producing & Mfg. Co., 115 U. S. 650, United States, 148 U. S. 312, 13 S. 6 S. Ct. 252, 29 L. ed. 517; New Or- Ct. 622, 37 L. ed. 465. leans Water Works Co. v. Rivers, 2. Pearsall v. Great Northern R. 115 U. S. 674, 6 S. Ct. 273, 29 L. ed. Co., 161 U. S. 646, 664, 16 S. Ct. 705, 525 ; Louisville Gas Co. v. Citizens' 40 L. ed. 838, 844. Gas Light Co., 115 U. S. 683, 6 S. 3. Pearsall v. Great Northern R. Ct. 265, 29 L. ed. 510; St. Tammany Co., 161 U. S. 646, 664, 16 S. Ct. 705, Water Works Co. v. New Orleans 40 L. ed. 838, 844; Northwestern Fer- Water Works Co., 120 U. S. 64, 7. tilizing Co. v. Hyde Park, 97 U. S. S. Ct. 405, 30 L. ed. 564; Boston & 659, 24 L. ed. 1036. L. R. Corp. v. Salem & L. R. Co., 2 4. Pearsall v. Great Northern R. Gray (Mass.) 1. Co., 161 U. S. 646, 664, 16 S. Ct. 705, 1. Pearsall v. Great Northern R. 40 L. ed. 838, 844; Charles River Co., 161 U. S. 646, 663, 16 S. Ct. 705, Bridge Proprs. v. Warren Bridge 40 L. ed. 838, 844; St. Clair County Proprs., 36 U. S. (11 Pet.) 420, 9 Tump. Co. v. Illinois, 96 U. S. 63, 24 L. ed. 773 ; Wash. & B. Turnp. Co. v. L. ed. 651; Monongahela Nav. Co. v. Maryland, 70 U. S. (3 Wall.) 210, 18 43 § 15 THE EIGHT TO CONSTEUCT AND OPERATE. not open to the objection of impairing the contract. A familiar instance of this class of legislation is that enacted under what is known as the police power. In virtue of this the statute may prescribe regulations contributing to the comfort, safety, and health of passengers, the protection of the public at highway cross- ings or elsewhere, the security of owners of adjacent property by requiring the track to be fenced, and such appliances to be an- nexed to the engines as shall prevent the communication of fire to neighboring buildings. 5 The contract protected by this clause must also be founded upon a good consideration. If it be a mere nude pact, a bare promise to allow a certain thing to be done, it will be construed as a revocable license. 6 So a bare, unexecuted power to consolidate with other corporations, a power which, if it exists, would authorize a railroad corporation to absorb, by suc- cessful and gradual accretions, the entire railway system of the country, is, so long as it remains unexecuted, within the control of, and subject to revocation by the legislature, at least so far as it applies to parallel or competing lines. 7 Where the charter au- thorizes the company in sweeping terms to do certain things which are necessary to the main object of the grant, and not directly and immediately within the contemplation of the parties thereto, the power so conferred, so long as it is unexecuted, is within the con- trol of the legislature and may be treated as a license, and may be L. ed. 180 ; Pennsylvania R. Co. v. Lawton v. Steele, 152 U. S. 133, 14 S. Miller, 132 U. S. 75, 10 S. Ct. 34, 33 Ct. 499, 38 L. ed. 385; Eagle Ins. Co L. ed. 267; Detroit Citizens' R. Co. of Cincinnati v. State of Ohio, 153 tJ. v. Detroit Ry. Co., 171 U. S. 48, 18 S. 446, 14 S. Ct. 868, 38 L. ed. 779; S. Ct. 732, 43 L. ed. 67. Atchison, T. & S. F. R. Co. v. Mat- 5. Pearsall v. Great Northern R. thews, 174 U. S. 96, 19 S. Ct. 609, 43 Co., 161 U. S. 646, 665, 16 S. Ct. 705, L. ed. 909. 40 L. ed. 838, 845; Butchers' Benev. 6. Pearsall v. Great Northern R. Ass'n v. Crescent City L. S. L. & S. Co., 161 U. S. 646, 667, 16 S. Ct. 705, H. Co., (Slaughterhouse Cases) 83 U. 40 L. ed. 838, 845; Christ Church v. S. (16 Wall.) 36, 21 L. ed. 394; Bos- Philadelphia Co., 65 U. S. (24 How.) ton Bear Co. v. Massachusetts, 97 U. 300, 16 L. ed. 602; St. Clair Tump. S. 25, 24 L. ed. 989 ; Paterson v. Ken- Co. v. Illinois, 96 U. S. 63, 24 L. ed. tucky, 97 U. S. 501, 24 L. ed. 1116; 651; Philadelphia & G. F. Pass. R. Barbier v. Connolly, 113 U. S. 27, 5 Co.'s App., 102 Pa. St. 123. S. Ct. 357, 28 L. ed. 923; Charlotte, 7. Pearsall v. Great Northern R. C. & A. R. Co. v. Glbbes, 142 U. S. Co., 161 U. S. 646, 672, 16 S. Ct. 705, 386, 12 S. Ct. 255, 35 L. ed. 1052; 40 L. ed. 838, 847. 44 THE EIGHT TO CONSTRUCT AND OPEBATE. 15 Tevoked if a possible exercise of such power is found to conflict with the interests of the public. 8 Statutes conveying franchises and special privileges belonging to the public should be construed most favorably to the people; and all reasonable doubts in con- struction should be solved against the person claiming under the grant; and words or phrases which are ambiguous or admit of different meanings are to receive a construction most favorable to the public. 9 Such a rule of construction manifestly is the 8. Pearsall v. Great Northern R. Co., 161 U. S. 646, 674, 16 S. Ct. 705, 40 L. ed. 838, 847. An obligation to maintain » street railroad is not im- posed by the grant of a mere privi- lege to construct and maintain it. San Antonio St. Ry. Co. v. State, El- mendorf, 90 Tex. 520, 39 S. W. 926, 35 L. R. A. 662, 6 Am. & Eng. R. Cas. (N. S.) 658. Where the charter of a street rail- road company provides that it may lay tracks along such streets as the municipal corporation shall author- ize, such authority, when given, con- stitutes a contract which cannot be rescinded by a subsequent act of such municipal corporation. People v. Chi- cago West Div. R. Co., 18 111. App. 125. 9. Trustees of East Hampton v. Vail, 151 N. Y. 463, 472, 45 N. E. 1030; People v. Broadway R. Co., 126 N. Y. 29, 37, 26 N. E. 961 ; Bar- rett v. Stockton & D. R. Co., 2 M. & G. 134; Stourbridge Canal Co. v. Wheeley, 2 B. & Ad. 792; People v. N. Y. & S. I. & F. Co., 68 N. Y. 71; McFarlan v. Orange, etc., Car Co., 37 N. J. Eq. 17; West End & Atlantic St. R. Co. v. Atlantic St. R. Co., 49 Ga. 151 ; Rice v. Railroad Co., 1 Black (U. S.) 358; New Orleans & C. R. Co. v. New Orleans, 34 La. Ann. 429. The New York statute (Laws of 1889, chap. 531, § 12), authorizing street surface railroads, upon obtain- ing the approval of the State Board of Railroad Commissioners and the consent of the property owners as specified, to operate its road "by any power other than locomotive steam power instead of by animal or horse power," confers no substantial franchise to conduct or operate a road, but is simply a regulating act. Matter of Third Ave. R. Co., 121 N. Y. 536, 24 N. E. 951; Colonial City Traction Co. v. Kingston City R. Co., 154 N. Y. 493, 48 N. E. 900. The manner in which an existing fran- chise to operate a railroad may be exercised is matter of regulation, and is generally within the absolute con- trol of the legislature. Matter of Third Ave. R. Co., 121 N. Y. 536, 540, 24 N. E. 951. Where a special statute charter (N. Y. Laws 1871, chap. 517) authorized a street sur- face railroad company to construct and maintain through the streets of the municipality and operate a street railroad "' by horses, mules, or dummy engines," a subsequent general stat- ute prohibiting the use of locomotive steam power modifies the special char- ter. People ex rel. Babylon R. Co. v. Board of Com'rs of State of New York, 32 App. Div. (N. Y.) 179, 52 N. Y. S. 908. In the case last cited a " kinetic " motor was held not to be the " locomotive steam power " contemplated by the statute. The provisions of the Pennsylvania Street Railway Act of 1889 are ap- plicable to a street railway company 45 § 15 THE EIGHT TO CONSTEUOT AND OPEBATE. proper one always to be followed where the property of the citizen is sought to be taken against his consent Everything not enu- merated in a grant, or excepted out of it, is held to be as distinctly negatived as though there were express words of negation. 10 The powers of the corporation must be deemed to extend however to the accomplishment of legitimate corporate ends, and to whatever may be found to be within the scope of the legislative grant. The purpose in creating a railroad corporation, must be deemed to be of a public nature, and the public is interested in its full and free accomplishment. If the proposed corporate act is in furtherance of the public convenience, and can fairly find a sanc- tion in the charter, it should be upheld. Individual interests must be subservient so far to the public as to give way before an evident public requirement. 11 Where the grant contains no words incorporated under special act of the assembly, which accepts the same as therein provided under the clause, " any street passenger railway com- pany heretofore existing under color of any charter," though the words "under color of" are inaptly chosen as the equivalent of " under author- ity of." Berks Co. v. Beading City Bass. Ry. Co., 126 Ba. St. 102; Beo- ple, Third Ave. Ey. Co. v. Newton, 112 N. Y. 396, 19 N. E. 831; Citi- zens' St. Ry. Co. v. Jones, (Ark.) 34 Bed. 570. 10. Farrell v. Winchester Ave. R. Co., 61 Conn. 127, 3 Am. Electl. cas. 85, 23 Atl. 757; Durousseau v. United States, 10 U. S. (6 Cranch) 307, 3 L. ed. 232. "In so far as the rights granted to corporations are destructive of or encroach upon public or common rights, they are undoubtedly to be construed most strongly against those setting them up and in favor of the State or the public; they are not to be ex- tended beyond the express words in which they are given, or their clear import, and what is not given in un- ■equivoeal terms is to be deemed as expressly withheld." Endlich on In- terpretation of Statutes, § 354. 11. Matter of Union El. R. Co. of Brooklyn, 113 N. Y. 275, 21 ST. E. 81; Suburban Rapid Transit Co. v. City of New York, 128 N. Y. 510, 28 N. E. 525. Mere legislative power to say how the streets of a city shall be used, conferred by a charter upon the common council, cannot be construed as giving power to contract with a street railway company for the right to lay tracks in the streets for a term of years, although without such con- tracting power no street railroad will be built. Detroit v. Detroit City Ry. Co., 56 Bed. 857. But where the charter of a railroad company em- powers the directors to make such agreements with any person or cor- poration whatsoever " as the con- struction of their railroad, or its maintenance, and the convenience and interest of the company and the con- duct of its affairs may, in their judg- ment, require; also to build and run steamboats," etc., a contract with a steamboat company by which a rail- road corporation guarantees a air- tain amount of receipts from a line 46 THE EIGHT TO CONSTRUCT AND OPEEATE. 16 of definition or limitation the corporation takes by implication all, and only, such powers as are reasonable and necessary to its legitimate purposes. 12 § 16. Amendment or repeal of charter. — Each State by its Con- stitution, a general law, or in a special act granting the charter has reserved power to alter, amend, or repeal the same, and such reservation is valid. 13 And where there is no such reservation, if the charter be altered or modified with the assent of the corpora- tion, the obligation of the contract created by the original charter is not impaired. 14 And public laws being a supplement to a street of boats to run in connection with the road, is not ultra vires. Green Bay & M. R. Co. v. Union Steamboat Co., 107 U. S. 98, 2 S. Ct. 221, 27 L. ed. 413. 12. City of St. Louis v. Missouri R. Co., 13 Mo. App. 524.; Attorney- General v. Chicago, etc., R. Co., 112 111. 611. A company authorized by its charter to operate a road com- mencing in one municipality and ex- tending into another, may operate a line entirely within the limits of the one municipality. Wilmington City Ry. Co. v. Peoples Ry. Co., (Del. Ch.) , 47 Atl. 245; West Penn. Co.'s Appeal, 99 Pa. St. 155; Mason v. Brooklyn City, etc., R. Co., 35 Barb. (N. Y.) 373; McFarlan v. Orange, etc., R. Co., 13 N. J. Eq. 17. Reference to streets by name with a general refer- ence to the corporate limits is suffi- cient in a street railway charter un- der a statute providing that the char- ter shall state the initial and final termini and general route of the road. Africa v. Knoxville, (C. C. E. D. Tenn.) 70 Fed. 729. The organiza- tion of a street railroad company un- der the Pennsylvania Act of 1889 is not limited to one city, borough, or local jurisdiction in the absence uf anything indicating a restriction as to locality, and the term "streets," as used therein, includes roads in townships as distinct from the streets of a borough or city. Pennsylvania R. Co. v. Montgomery County Pass. Ry. Co., 3 Pa. Dist. (C. P.) 58, 14 Pa. Co. Ct. 88. A charter empower- ing a street railroad company to con- struct its railroad " upon and over " certain streets "except in" certain other streets mentioned, is not to be construed as preventing the company from laying tracks " across " one of the excepted streets, especially where the company has previously laid a track across one of such excepted streets without hindrance. State v. Newport St. R. Co., 16 R. I. 533, 18 Atl. 161, 6 R. & Corp. L. J. 378. A grant by the legislature to a street railroad company of the right to con- struct and operate a railroad along a street which is already occupied by another company will not of it- self give the new company the right to use the old tracks. Louisville City R. Co. v. Central Pass. R. Co., 87 Ky. 223, 8 S. W. 320. 13. McLaren v. Pennington, 1 Paige (N. Y.) 102; Crease v,. Bab- cock, 40 Mass. 334; English v. N. H. & N. Co., 32 Conn. 243; Common- wealth v. Fayette Co. R. Co., 55 Pa. St. 452. 14. Pennsylvania College Cases, 80 47 § 16 THE EIGHT TO CONSTRUCT AND OPERATE. railway company's charter have been held not to modify the terms of a contract between a city and the company. 15 Provision in a charter that it should not be altered or alterable in any other manner than by act of the legislature is in all respects equivalent to an express reservation to the State to make any alterations in the charter which the legislature, in its wisdom, may deem fit, just, and expedient to enact. 16 If the power be reserved the legislature may repeal, alter, or modify the charter by general statute, or it may be done by change in the Constitution; a cred- itor cannot object, nor is the consent of the corporation necessary, nor would a stockholder be thereby discharged from his obligation to the corporation. 17 But under this power to alter the State can- not change the nature of the corporation, nor take away property rights, nor authorize the taking of private property for public use without compensation. 18 Nor under the power to repeal can the U. S. (13 Wall.) 190, 20 L. ed. 550; Mumma v. Potomac Co., 33 U. S. (8 Pet.) 281, 8 L. ed. 945; Slee v. Bloom, 19 Johns. (N. Y.)- 456; Riddle v. Loueks & Can., 7 Mass. 185; Lincoln & Ken. B. K. v. Richardson, 1 Me. 79; Sprague v. Illinois R. Co., 19 111. 174. 15. Jersey City v. North Jersey St. Ry. Co., 72 N. J. L. 383, 61 Atl. 95. 1 6. Pennsylvania College Cases, 80 Li. S. (13 Wall.) 190, 20 L. ed. 550; Houston v. Jefferson Coll., 63 Pa. St. 428; State 'v. Yard, 10 Chicago L. N. 90; Commonwealth v. Dousall, 3 Whart. (Pa.) 559. 17. Schenectady, etc., P. R. Co. v. Thatcher, 11 N. Y. 102; Matter of Lee's Bank, 21 N". Y. 9; Reed v. Frankfort Bank, 23 Me. 318; Attor- ney-General v. Railroad Co., 35 Wis. 425; Mayor v. N., etc., R. Co., 109 Mass. 103; Paring v. Oliver, 1 Minn. 302; Butler v. Walker, 80 111. 345; State v. Commissioners, 38 N. J. 472. 18. Commonwealth v. Essex County, 79 Mass. 239; Buffalo, etc.. R. Co. v. Dudley, 14 N. Y. 336; Allen v. Me- Kean, 1 Sumn. (U. S.) 276; People v. O'Brien, 111 N. Y. 1, 18 N. E. 692. In the case last cited the court, per Rugbe, Ch. J., said: "The conten- tion that securities representing a large part of the world's wealth are beyond the reach of the protection which the Constitution gives to prop- erty, and are subject to the arbitrary will of successive legislatures, to sanction or destroy at their pleasure or discretion, is a proposition so re- pugnant to reason and justice as well as the traditions of the Anglo-Saxon race in respect to the security of rights of property, that there is little reason to suppose that it will ever- receive the sanction of the judiciary, and we desire in unqualified terms to express our disapprobation of such a doctrine. Whatever might have been the intention of the legislature or even of the framers of our Con- stitution in respect ta the effect of the power of repeal reserved in acts of incorporation, upon property rights of a corporation, such power must still be exercised in subjection to the provisions of the Federal Constitu- 48 THE RIGHT TO CONSTRUCT AND OPERATE. § 16 State destroy the executory contracts of corporations. 19 "Where the State reserves the power to alter or amend the charter of a street railway company, the alteration or amendment must he reasonable. It must be in good faith and consistent with the scope and object of the act of incorporation, and not in its opera- tion oppressive or tend to inflict a wrong. In the exercise of this power however the State may make any alteration or amend- ment which will not defeat or substantially impair the object of the grant or any rights which have vested under it, which the legislature may deem necessary to secure either the object of the grant or any other public right not expressly granted away by the charter. 20 And the doctrine that if a statute is susceptible of any other reasonable construction it will not be construed so as to effect vested rights has been applied in the case of an amend- ment to the charter of a street railway company to the effect that it shall not be lawful for the municipal authorities of any town or city to interfere with, hinder, or obstruct the company in construct- ing or running its road, providing that the same shall be con- structed and run according to the provisions of the act, it being decided that such amendment did not have the effect of discharg- ing the company from its contractual obligations previously en- tered into with the municipal authorities of the city in which it operated. 21 But the State may regulate passenger and freight rates thereafter made. 22 It cannot however establish a tariff of tion." Page 36. Shields v. Ohio, 95 21. Mayor of Jersey City v. North V. S. (5 Otto) 319, 24 L. ed. 357. Jersey St. Ey. Co., 72 N. J. L. 383, Having granted to the corporation a 4 St. Ey. Eep. 711, 61 Atl. 95. franchise to maintain a street aur- J$2. Parker v. Metropolitan E. Co., face railroad it cannot require the 109 Mass. 506; Shields v. State, 26 change into an underground road Ohio St. 86; Attorney-General v. maintained in a tunnel. Coney Eailroad Co., 35 Wis. 425; Peik v. Island & Ft. H. & B. E. Co. v. Ken- Chicago & N. W. Ey. Co., 94 U. S. nedy, 15 App. Div. (N. Y.) 588, 44 (4 Otto) 164, 24 L. ed. 97, 6 Biss. N. Y. Supp. (78 St. Eep.) 825. (U. S.) 177; Shields v: Ohio, 95 U. 19. Curran v. Arkansas, 56 U. S. S (5 Otto) 319, 24 L. ed. 357. A (15 How.) 304, i4 L. ed. 705, 12 Ark. railroad company takes its charter, 321. containing a provision giving power 20. Fair Haven & Westville E. Co. tc the directors to make rules as to v. City of New Haven, 203 U. S. 379, lates of toll, subject to the general 5 St. Ey. Eep.' 70, 27 Sup. Ct. 74, 51 law of the State, and to such changes L. ed. 237. as may be made in such general law 4 49 § 16 THE EIGHT TO CONSTRUCT AND OPERATE. rates which is so unreasonable as to practically destroy the value of the property of the corporation. It would thus deprive the corporation of its property without due process of law and would deny to it the equal protection of the laws. 23 The State's power to alter or modify a charter is not exhausted by one alteration ; 2i and if a general statute or the Constitution reserves the power to alter charters, all charters subsequently granted axe subject thereto. 25 If incorporation be authorized with a reserve power of revocation by the legislature, a single right or privilege may be withdrawn without revoking the whole franchise, and this may be done either directly or by necessary implication, as by the passage of an act inconsistent with some right or privilege possessed by the corporation. 26 Where the power to alter is re- served, the State may prescribe how the power shall be exercised. 27 The power may be exercise, so far as street surface railroads are concerned, by amendment to charters of municipal corporations, and such amendments will control the municipal power with reference to corporate franchises previously granted. 28 Under the power to alter, the State may authorize a street surface rail- road corporation to build branches or extensions of its road with- out the consent of its stockholders, where the character of the contract is not altered thereby and the alteration is not prejudicial and subject to future constitutional 25. Central R. Co. v. State, 54 Ga. provisions and future general legis- 501 ; Fort Plain Bridge v. Smith, 30 lation, in the absence of any prior N. Y. 44; Iron City Bank v. Pitts- contract with it exempting it from burg, 37 Pa. St. 340; State v. Per- liability to such future general legis- son, 32 N. J. 134; Griffing v. Ken- lation. Chicago, M. & St. P. Ry. Co. tucky Ins. Co., 3 Bush (Ky.) 592; v Minnesota, 134 TJ. S. 418, 10 S. Ct. Euckert v. Grand Ave. Ry. Co., 163 463, 702, 33 L. ed. 970. Mo. 260, 63 S. W. 814. 23. Covington & L. Turnpike Road 26. Wilmington City Ry. Co. v. Co. v. Sandford, 164 U. S. 578, 592, Wilmington & B. S. R. Co., 8 Del. 17 S. Ct. 198 41 L. ed. 560, 565; St. Ch. 468, 46 Atl. 12. Louis & S. F. Ry. Co. v. Gill, 156 U. 27. Matter of Recip. Bank, 22 N. S. 649, 657, 15 S. Ct. 484, 39 L. ed. Y. 9, 29 Barb. (N. Y.) 369, 17 How. 567, 570. Pr. (N. Y.) 323. 24. M. E. R. Co. v. Commission- '28. Eichels v. Evansville St. Ry. ers, 37 N. J. 228 ; People v. Hills, 46 Co., 78 Ind. 261, 50 Am. & Eng. R. Barb. (N. Y.) 340; revd. on another Cas. 274, 41 Am. Rep. 562; Taylor point, 35 N. Y. 449; Proprs. v. v Bay City St. Ry. Co., 80 Mich. 77, Haskell, 7 Me. 474. 45 N. W. 335. 50 THE EIGHT TO CONSTRUCT AND OPERATE. 17 to the stockholders' interest. 29 It may require railroad companies to unite in a passenger station in a municipality, to extend their tracks thereto, and to discontinue parts of their existing location. 30 It may take away a corporate franchise or prescribe the conditions and terms upon which the corporation may live and exercise such franchise. 31 It should be remembered however that the power to alter franchises and grants means their restriction rather than their enlargement, and under the guise of an amendment fran- chises and privileges cannot be conferred upon a corporation which are not in harmony with the spirit of the original grant. 32 A statutory provision that " all charters heretofore granted by the secretary of state to street and suburban railroad companies are hereby confirmed and declared to have had full effect from their dates," is in effect a general law; and companies theretofore organized after the acceptance of the provisions of the act, although only de facto corporations, become vested with all the corporate powers mentioned in their charterers. 33 § 17. Forfeiture or annulment of charter. — Statutes authoriz- ing the formation of railroad corporations usually contain pro- 29. Schenectady, etc., P. R. Co. v. a mere privilege while it is suffered Thatcher, 11 N. Y. 102; Durfee v. to continue. Cincinnati Inclined Plane Old Colony, etc., R. Co., 5 Allen Ry. Co. v. The City, etc., Telegraph (Mass.) 230; Bannett v. Alton, etc., Assn., 48 Ohio St. 390, 3 Am. Electl. R. Co., 13 111. 504 ; Pacific R. Co. v. Cas. 443, 458, 27 N. E. 890, note 460. Remshaw, 18 Mo. 210. Under cer- 32. Astor v. Arcade R. Co., 113 N. tain circumstances a street railroad Y. 93, 112, 20 N. E. 594. In the corporation organized under special case cited, the question was whether charter may procure its charter to or not the corporation organized to be amended so as to authorize it to transmit letters, packages, and mer- extend the termini of its line fixed by chandise in New York and Brooklyn its original charter and to acquire by means of pneumatic tubes to be rights granted to other roads. State, constructed beneath the surface could Crowe v. Lindell R. Co., 151 Mo. 162, by amendment of its charter be per- 52 S. W. 248. mitted to operate a railroad for pas- 30. Mayor v. Norwich, etc., R. Co., senger and freight traffic, it was also 109 Mass. 103. decided that the bill was a private 31. Mayor of New York v. Twenty- or local bill, embracing more than third St. Ry. Co., 113 N. Y. 311, 21 one subject, and therefore unconsti- N. E. 60. A franchise granted by tutional. the State, with a reservation of the 33. Brown v. Atlanta Railway & right of repeal, must be regarded as Power Co., 113 Ga. 462, 39 S. E. 71. 51 § 17 THE EIGHT TO CONSTRUCT AND OPERATE. visions for a forfeiture upon certain contingencies. Whether a forfeiture clause is or is not self-executing depends wholly upon the language employed by the legislature, which must he strong and unmistakable to authorize the court to hold that it was the intention of the legislature to dispense with judicial proceedings on the intervention of the attorney-general. 34 When the words used in the statute to declare a penalty for the nonperformance of conditions specified are that the corporation shall forfeit its charter, or its charter rights, or be dissolved, or where equivalent expressions are used, these have never been held ex proprio vigore, to put an end to corporate life. By such nonperformance a cor- poration is not, ipso facto, dissolved or deprived of its corporate existence or corporate rights, but it is simply exposed to proceed- ings, on behalf of the State, to establish and enforce the forfeiture. The State which imposes the conditions may waive their perform- ance, and the corporate life may run on until the State, by proper proceeding, intervenes and enforces the forfeiture. Until the State does thus intervene, a private individual cannot set up the forfeiture or in any way challenge the corporate existence with its full vitality. 35 But if the statute provides that upon the con- 34. New York & Long Island of the capital stock of the company Bridge Co. v. Smith, 148 N. Y. 540, to which the act applied should be- 547, 42 N. E. 1088; People ex rel. come concentrated, by purchase or Sabichi v. Los Angeles Electric Ry. otherwise, in the hands of less than Co., 91 Cal. 338, 27 Pac. 673 ; Com- five persons, etc., " all the corporate monwealth v. Bank, 28 Pa. St. 383. powers and privileges granted should 35. Matter of Brooklyn El. R. Co., cease and determine." Held, that a 125 N. Y. 434, 440. private party could not take advan- Forfeiture clauses held not self- tage of the forfeiture, and that the executing: sovereign power might waive it. Oregon Corporation Act provided Frost v. Frostburgh Coal Co., 65 U. that if any corporation should neglect S. (24 How.) 278, 16 L. ed. 637. and cease to carry on its business for Illinois. — Baker v. Backus, 32 111. any period of six months its " cor- 79. porate powers shall cease." Held, Maryland. — Chesapeake Co. v. that such neglect and cessation did Baltimore, etc., ±t. Co., 4 Gill & J. not, ipso facto, terminate the exist- (Md.) 1; Musgrave v. Morris, 54 ei'ce of the corporation. Md. 161. United States. — Wallamet Falls, New Jersey. — New Jersey So. R. etc., Co. v. Kittridge, 5 Sawy. (U. Co. v. Long Branch Com'rs, 39 N. J. S. ) 44. The act of incorporation pro- L. 35. vided that whenever over four-fifths New York. — Matter of Reformed 52 THE EIGHT TO CONSTRUCT AND OPERATE. § IT tingency the franchise shall be terminated or shall eease> then, in a proper case, judicial proceedings are unnecessary, the dissolution of the corporation may be declared at the suit' of a private in- dividual, and the legislature may confer the franchise upon any other company or person. 36 The forfeiture clause which ends the Presbyterian Church, 7 How. Pr. (N. Y.) 476; People v. Manhattan Co., 9 Wend. (N. Y.) 351. In the case last cited the charter provided that " said company shall, within ten years from the passing of this act, furnish and continue a supply of pure and whole- some water, sufficient for the use of all such citizens dwelling in such city as shall agree to take it on the terms to be demanded by the said company ; in default whereof the said corporation shall be dissolved." Held, that the words "be dissolved" should be construed to mean dissolved ir. a regular and legal manner by a proper judicial proceeding. The words of forfeiture in the fol- lowing case are "all rights and privileges granted hereby shall be null and void." The court held that the words "null and void," as used in the act, clearly meant voidable. New York, Long Island Co. v. Smith, 148 N. Y. 540, 42 N. E. 1088 ; Matter ' oi Staten Island B. Tr. Co., 103 N. Y. 251, 8 N. E. 548 ; Day v. Ogdens- burgh & L. C. B. Co., 107 N. Y. 129, IS N. E. 765; Woodruff v. Erie E. Co., 93 N. Y. 609; Matter of Towns- end, 39 N. Y. 171; Matter of New York El. E. Co., 70 N. Y. 338 ; Mat- ter of New York, etc., Ey. Co., 99 N. Y. 12, 1 N. E. 27. Pennsylvania. — Turnpike Co. v. Jenkintown El. E. Co., 4 Pa. Dist. 8. South Carolina. — Cheraw, etc., E. Co. v. White, 14 S. C. 61; Cheraw, etc., E. Co. v. Garland, 14 S. C. 64. Tennessee. — La Grange, etc., E. Co. v. Eaney, 7 Coldw. (Tenn.) 420. Vermont. — Vermont, etc., E. Co. v Vermont C. E. Co., 34 Vt. 1. 36. Matter of B. W. & N. Ey. Co., 72 N. Y. 245. In the case cited, the forfeiture clause required every such corporation to begin the construction of its road and expend thereon 10 per cent, of its capital within five years after its articles are filed and re- corded, and declared that in case of nonperformance " its corporate ex- istence and powers shall cease," the court, per Allen, J., said : " Upon the contingency it needed no action or judicial proceeding to declare or compel a forfeiture of the charter and loss of corporate powers. The statute executed itself, and the nonexistence of the corporation could be alleged in opposition to this application by the respondents." (In condemnation pro- ceedings.) The same point was decided in the later case of the Brooklyn Steam T. Co. v. City of Brooklyn, 78 N. Y. 524; and in the Matter of B. W. & N. E. Co., 81 N. Y. 69, it was held that the corporation by leasing a por- tion of the road covered by its fran- chise to another corporation, with the right to lay tracks thereon, not for the purpose of constructing the road of the lessor, but to enable the lessee to complete its own road, the tracks, when built, not to belong to the les- sor or to be operated by it, but to be constructed at the expense of and be operated and maintained for the use of the lessee exclusively, would not save the charter from forfeiture. Peavey v. Calais E. Co., 30 Me. 53 § 17 THE EIGHT TO CONSTBUCT AND OPEEATE. corporation without a direct judicial procedure to declare the for- feiture must amount to an express limitation upon the original 498. A statute provided that if any railroad corporation should not, with- in two years after its incorporation, construct and put in operation at least ten miles of its proposed road, " such corporation shall forfeit its corporate existence, and its powers shall cease as far as it relates to that portion of said road then unfinished, and shall be incapable of resumption by any subsequent act of incorpora- tion." Held, self-executing. Sul- phur Springs & Mt. R. Ry. Co. v. St. Louis, A. & T. Ry. Co., (Texas) 2 Tex. Civ. App. 650, 22 S. W. 107, 23 S. W. 1012. Where an act provided that upon certain failures to comply with speci- fied requirements, the rights and privileges granted should revert to the Commonwealth, it was held that judicial action or other legislation on the happening of the event was un- necessary. Commonwealth. v. Lykens Water Co., 110 Pa. St. 391. So held as to an act incorporating a railroad company attaching a condition to the grant that it should construct and equip its road and branches within a specified time, or upon failure to do so, all unbuilt portions thereof, " with the property, rights, and franchises appertaining thereto, shall be absolutely forfeited, and shall re- vert to the State without any fur- ther act or ceremony whatever." State v. St. Paul & S. C. R. Co., 35 Minn. 222, 28 N. W. 245. So held, too, where the act provided that if the company should fail to complete its railroad between certain points within a specified time, it " shall for- feit to the State of Virginia their corporate franchises and rights, to- gether with their railroad track, road- bed, and all work and materials thereon, and other property, to hold the same as a trustee for the benefit of creditors, the corporation of Fred- ericksburgh and other private stock- holders of the original Fredericks- burgh Railroad Company, according to the respective amounts of the stock in that company originally subscribed and held by them." Silliman v. Fred- ericksburgh, etc., R. Co., 27 Gratt. (Va.) 119. Where the charter provided that the corporation making default in the payment of a State loan and apply- ing for a. renewal thereof should con- sent to a forfeiture of its charter — Held, that upon the default, the char- ter was, ipso facto, surrendered with- out any judicial proceedings for the purpose. Mobile, etc., R. Co. v. State, 29 Ala. 585. But where the act pro- vided that on the foreclosure of a mortgage upon the property and fran- chise of a, railroad corporation the corporation should be dissolved, it was held that an illegal and fraudu- lent sale upon such a, foreclosure would not work a dissolution. White Mountains R. Co. v. White Moun- tains R. Co., 50 N. H. 50. Forfeiture clauses held self-execut- ing in other cases: United States. — Lothrop v. Stead- man, 13 Blatchf. (U. S.) 143. Alabama. — Mobile, etc., R. Co. v. State, 39 Ala. 573. California. — Oakland R. Co. v. Oakland, etc., R. Co., 45 Cal. 365, 13 Am. Rep. 181. Connecticut. — New York, etc., R. Co. v. Boston, etc., R. Co., 36 Conn. 196. Kansas. — Atchison St. R. Co. v. Nave, 38 Kan. 444, 5 Am. St. Rep. 800, 17 Pac. 587. Massachusetts. — Crease v. Bab- 54 THE RIGHT TO CONSTRUCT AND OPERATE. § ir grant of corporate power. 37 Not every nonuser, not every mis- user, will furnish sufficient ground for forfeiture. To work a forfeiture, there should be something wrong; and not only a wrong, but one arising from willful abuse or improper neglect, indicating an indifference to the demands of public duty, unless the act or omission is made by statute a cause of forfeiture, irre- spective of its intent or character. 38 Forfeitures are not favored, and in construing forefiture clauses the courts are generally op- cock, 23 Pick. (Mass.) 343, 34 Am. Dec. 61. Missouri. — Ford v. Kansas City, etc., E. Co., 52 Mo. App. 429. New Jersey. — Elizabethtown Gaa Light Co. v. Greene, 46 N. J. Eq. 118, 18 Atl. 844. New York. — Matter of Kings Co. El. E. Co., 41 Hun (N. Y.) 426; Kennedy v. Strong, 14 Johns. (N. Y.) 128. Texas. — Bywaters v. Paris G. N. Ey. Co., 73 Tex. 624, 11 S. W. 856; Galveston, etc., E. Co. v. State, 81 Tex. 572, 17 S. W. 67; Houston v. Houston Belt & M. P. Ey. Co., 84 Tex. 581, 19 S. W. 786; Gulf City E. Co. v. Gulf, etc., E. Co., 63 Tex. 529. The legislature has undoubted power to provide in an act of incor- poration that corporate existence shall cease by the mere failure of the corporation to perform certain acts imposed by its charter. New York & Long Island Bridge Co. v. Smith, 148 N. Y. 540, 42 N. E. 1088. In Crease v. Babcock, 23 Pick. (Mass.) 342, 34 Am. Dec. 61, Mob- ton, J., stated that Chancellor Kent made, "with some appearance of re- luctance," the statement that if a charter be granted and accepted with reservation or upon a condition, there seems to be no ground to question the validity and efficiency of the res- ervation. 2 Kent's Comm. 306. The charter of a street railway company is not void because it has located its road on part of a street to which another street railroad com- pany claims a prior right. Union E. Co. v. Philadelphia, etc., Co., 6 Del. Co. Eep. 490. Nor is it void because it includes in part of its road a street which another company has obtained an unexecuted right to occupy in a certain time, particularly where the two companies have settled their con- troversy by agreement. Chester Traction Co. v. Philadelphia, etc., Co., (C. P.) 6 Del. Co. Eep. 481. 37. Day v. Ogdensburgh & L. C. E. Co.„ 107 N. Y. 129, 13 N. E. 765. 38. People v. Atlantic Ave. E. Co., 125 N. Y. 513, 519, 26 N. E. 622; Chicago City Ey. Co. v. People, 73 111. 541. The limitations of the orig- inal act are not abrogated by being left out of the amendatory act. The two acts must be read and construed together, and the amendments must be read as if incorporated in the orig- inal act, and all the provisions of the original act remain in force except as modified. Brooklyn Steam Tran- sit Co. v. Brooklyn, 78 N. Y. 524, 531; Enfield Toll Bridge Co. v. Con- necticut Eiver Co., 7 Conn. 45 ; Baker v. Backus, 32 111. 79; State v. Pagan, 22 La. Ann. 546; Briggs v. Cape Cod Ship Canal Co., 137 Mass. 71 ; Knowl- ton v. Atley, 8 Cush. (Mass.) 95; People v. Eunkle, 9 Johns. (N. Y.) 147; Bradt v. Benedict, 17 N. Y. 93; Mickels v. Eochester City Bank, 11 55. § 17 THE EIGHT TO CONSTEUCT ATTD OPEEATE. posed to a construction supporting a forfeiture ipso facto, without judgment of dissolution in a judicial proceeding; 39 and require those who challenge the existence of franchises on the ground of failure to comply with a specified condition under which the grant was made, to bring themselves strictly within the provisions of the charter under which they claim the right of forfeiture arises. 40 A New York statute has provided for a forfeiture if the road be not built within a tim# limited. 41 Paige (BT. Y.) 118, 42 Am. Bee 103; Blake v. Hinkle, 10 Yerg. (Tenn.) 218. Where a bank charter provided that in case of a suspension of specie pay- ment for more than ninety days the charter should be, ipso facto, forfeited and void, it was held that the hap- pening of the contingency merely gave the State the right to enforce the forfeiture in a proper judicial proceeding. Atchafalaya Bank v. Dawson, 13 La. 497. 39. Santa Rosa City R. Co. v. Center St. R. Co., (Cal.) 38 Pac. 989. In the case cited the court, per Van Fleet, J., said : " It fe obvious that the requirement as to the com- pletion of the work within a given time was a condition subsequent. It is a general rule that none but the creditor or his heirs could avoid a grant for failure to perform a con- dition subsequent; and in case of a public grant the right to avoid it on that ground is confined to the gov- ernment and can be exercised only through the judgment of a court or by a legislative declaration of for- feiture. It follows that where such condition is imposed by Btatute, a failure to perform ft will not, ipso facto, avoid the grant unless so de- clared by the statute creating the condition. Unless the statute by ex- press terms or by plain implication so declares, no forfeiture will take place without a judicial, or at least a legislative, determination to that effect." And see Oakland R. Co. v. Oakland, etc., R. Co., 45 Cal. 365; Chicago v. Chicago, etc., R. Co., 105 III. 73; Hughes v. Northern Pac. Ry. Co., 18 Fed. 106. 40. People v. Los Angeles El. Ey. Co., 91 Cal. 338, 27 Pac. 673; People v. Atlantic Ave. R. Co., 125 N. Y. 513, 26 N. E. 622; Matter of B. W. N. Ry. Co., 72 N. Y. 245. An exclu- sive right granted to a street rail- way company to operate its line in the city is such a property right as will entitle it to raise by injunction the question of forfeiture, by failure to perform the conditions of the char- ter of a company which is granted the right to build a street railway in certain streets of the city. Wilming- ton City Ry. Co. v. Wilmington, etc., Co., 8 Del. Ch. 468, 46 Atl. 12. 41. " § 179. Within, what time road to he built. — In ease any such corporation shall not commence the construction of its road, or of any extension or branch thereof with- in one year after the consent of the local authorities and property own- ers, or the determination of the Ap- pellate Division of the Supreme Court as herein required, shall have been given or renewed, and shall not complete the same within three years after such consents, its rights, privileges, and franchises in respect of such railroad extension or branch, as the case may be, may be forfeited. 56 THE EIGHT TO CONSTEUCT AND OPEEATB. § 18 § 18. legislative control of streets. — The right of the legisla- ture over the public highways, and to grant the use thereof for the public convenience and travel, so long as it does not impose ad- ditional servitudes upon the property and does not materially obstruct the public use by ordinary and accustomed methods, is undoubted. 42 It has power to authorize the construction of a rail- road in a city street without the consent of the municipal authori- ties, even though the city charter confers on the city council the authority to grant the right to construct such a road. 43 The main If the performance of any act re- quired by the Railroad Law or any prior acts within the times therein prescribed, is hindered, delayed, or prevented by legal proceedings in any court, such court may also extend such time for sueh period as the court shall deem proper, or if the perform- ance of any act required by said ar- ticle within the times therein pre- scribed is hindered, delayed, or pre- vented by works of public improve' ment or from any other or different course, not within the control of the corporation upon whom such require- ment is imposed, the time for the per- formance of such act is hereby and shall be deemed to be extended for the period covered by such hindrance, delay, or prevention. The time for compliance with any requirement in this or any former act, by a street surface railroad corporation, incorpo- rated for the purpose of constructing a street surface railroad, and which has, prior to the passage of this act, obtained, or shall prior to June 30th, 1903, obtain, such consents or deter- mination is hereby extended until June 30th, 1904." (As amended by chap. 676 of 1892, chap. 434 of 1893, § 1, chap. 209 of 1902; Laws 1910, chap. 481, § 179.) 42. Paterson Ry. Co. v. Grundy, SI N. J. Eq. 213, 26 Atl. 788, 4 Am. Eleetl. Cas. 173, 182; Domestic Tele- phone & Telegraph Co. v. Newark, 20 Vroom (N. J.) 344, 346. 43. Connecticut. — ■■ Central Rail- way, etc., Co.'s Appeal, 67 Conn. 197, 35 Atl. 32. Illinois. — Chicago v. Illinois Steel Co., 66 111. App. 561. Iowa. — Chieago, etc., R. Co. v. Newton, 36 Iowa 299. New Jersey. — Paterson, etc., Horse R. Co. v. Paterson, 24 N. J. Eq. 158; Jersey City v. Jersey City, etc., R. Co., 20 N. J. Eq. 360. New York. — Brooklyn City, etc., R. Co. v. Coney Island, etc., R. Co., 35 Barb. 364. Pennsylvania. — Harrisburg City Pass. R. Co. v. Harrisburg, 149 Pa. St. 465, 24 Atl. 56. Wisconsin. — Milwaukee v. Milwau- kee, etc., R. Co., 7 Wis. 85. So the legislature may grant fran- chises in the streets of a city with- out requiring adequate compensation therefor to be paid to the municipal- ity. Dulaney v. United Rys. & Elec. Co., 104 Md. 423, 65 Atl. 45, 5 St. Ry. Rep. 363. The court said: " Whatever may be said of the expedi- ency of the granting by the legisla- ture ef franchises in the streets of the city without requiring adequate compensation therefor to be paid to the municipality, there can be no doubt, in view of the decisions of this court, of the power of the legia- 57 § 18 THE EIGHT TO CONSTRUCT AND OPERATE. purpose of streets or highways being to facilitate travel and trans- portation, new and improved agencies for effecting that purpose must be presumed to have been in contemplation, in addition to those in existence when the ways were established. An occupation of the streets otherwise than for travel and transportation is pre- sumptively inferior and subordinate to the dominant easement of the public for highway purposes, for if not so, the primarily object of their dedication or appropriation might be largely defeated. And the fact that permission is granted to occupy the streets or highways for a purpose other than travel, does not confer a prior and paramount right to occupy them to the exclusion of their use for travel in a mode different from that which obtained when such permission was given. 44 But the control of the streets within a lature to. make such grants." Per Schmuckeb, J., citing Graff v. Fred- erick City, 44 Md. 67; Hodges v. Railway Co., 58 Md. 619; Baltimore v. State, 15 Md. 462, 74 Am. Dec. 572; Revell v. Annapolis, 81 Md. 9, 31 Atl. 695; Pumphrey v. Baltimore, 47 Md. 151, 152, 28 Am. Rep. 446; Hiss v. Baltimore & Hampden R. Co., 52 Md. 254, 36 Am. Rep. 371. 44. Cincinnati Inclined Plane Ry. Co. v. Cincinnati, etc., Tel. Assn., 3 Am. Electl. Cas. 443, 48 Ohio St. 390, 27 N. E. 890; Hudson River Tel. Co. v. Watervliet Tump. & R. Co., 135 N. Y. 393, 32 N. E. 148; Taggart v. Newport St. R. Co., 16 R. I. 668, 19 Atl. 326; Macomber v. Nichols, 34 Mich. 212. In the Hudson River Tel. Co. Case, 135 N. Y. 393, supra, the court, at page 404, said : " It would be an unjust reflection upon the wisdom and intelligence of the law- making body to assume that they in- tended to confine the scope of their legislation to the present, and to ex- clude all consideration for the devel- opments of the future. If any pre- sumption is to be indulged in, it is that general legislative enactments are mindful of the growth and in- creasing needs of society, and they should be construed to encourage, rather than to embarrass the inven- tive and progressive tendency of the people." In construing a statute enacted be- fore the days of electric railroads, authorizing the construction of " street or horse railways," the legislature would be presumed to have intended the use of such improved motive power as future invention might pro- duce and public utility and conven- ience require; and thus the statute should be given a construction broad enough to include the use of electric- ity. Lonergan v. La Fayette St. Ry. Co. (Ind.), 3 Am. Electl. Cas. 273. An act conferring upon cities the- right to the use of any motive power whatever, or any combination of mo- tive power, upon their street rail- ways, authorizes the use of electricity or any other improved method of lo- comotion, although not invented or discovered at its passage. Detroit City R. Co. v. Mills, 85 Mich. 634, 10 Ry. & Corp. L. J. 104, 46 Am. & Eng. R. Cas. 608, 48 N. W. 1007. It is not necessary for the declara- tion of incorporation, or the charter 58 THE EIGHT TO CONSTRUCT AND OPEEATE. § 18 municipality is now quite generally delegated to the local authori- ties, who are given the right to take final action in a procedure resulting in the creation of the franchise. 45 granted by the act of the legislature, or the consent of the municipal au- thorities to limit the number of tracks to be constructed upon the streets, or to designate the exact location of the tracks of said company latitudi- nally upon the streets along which the company proposes to construct its railway. Baker v. Selma St. & S. Ey. Co., 130 Ala. 474, 30 So. 464. In most States, however, by consti- tutional provisions the use of the streets for railroad purposes cannot be had without municipal grant. In authorizing a street railroad company to occupy public streets, the State legislature does so subject to the power of municipal corporations to enact such ordinances as do not unreasonably interfere with the exer- cise of the franchises granted; e. g., an ordinance prohibiting a street rail- way company from placing salt on its tracks. Traction Co. v. City of Elizabeth, 58 N. J. L. 619, 34 Atl. 146. • The provisions of a city charter making it unlawful to grant the right to construct a street railroad, except to one who will agree to carry pas- sengers thereon at the lowest rate of fare, is superseded by a general stat- ute giving every railroad corporation the power to construct its road upon any highway which its route shall ttke, subject to the limitations of such charter. Adamson v. Nassau El. Ey. Co., 89 Hun (N. Y.) 261, 68 St. Eep. (N. Y.) 851, 34 N. Y. Supp. 1073. 45. Ghee v. Northern Union Gas Co., 158 N. Y. 510, 513, 53 N. E. 692. The power which the State primarily had, over the streets and highways in the State or in any city of the State, has, in St. Louis, been trans- ferred to that city; and the general assembly has no power to authorize the construction, operation, or trans- fer of any street railway in that city without its consent. State, Crow v. Lindell E. Co., 51 Mo. 162, 52 S. W. 248. 59 § 19 THE FEANCHISE. CHAPTER II. The Franchise: How Acquired; How Limited. Section 19. Franchise defined — Its character — Classification. 20. Its character continued — How distinguished from charter or license. 21. Power of municipality to grant — Generally. 22. Granting of franchise a legislative function. 23. Extent of municipal power — Limitations. 24. Rules as to extent of power further considered and illustrated. 25. Grant of right in streets dedicated, but not accepted by munici- pality. 26. Municipal powers — Exclusive rights. 27. Municipality cannot by grant exclude public from street. 28. Grant of franchise pending injunction suit to restrain. 29. Certificate of public convenience and necessity. 30. Consent of local authorities. 31. Consent of local authorities — Where statute authorizes change of motive power. 32. Consent of local authorities — Consent of abutting owners a con- dition precedent. 33. Consents of abutting property owners. 34. Consents of abutting owners — Basis of foot frontage — Sufficiency of. 35. Consents of abutting owners — Signing of. 36. Consents of abutting owners — Giving of consideration for. 37. Consents of abutting owners — Agreement to procure for con- tingent fee. 38. Bids for franchises. 39. Bids for franchise — Lowest rate of fare — Void limitation in consent of abutting owner. 40. Extensions. 41. Extensions — Obligation as to construction. 42. Extensions — Conditions in franchise. 43. Proceedings if property owners do not consent. 44. Proceeding without consent — How prevented. 45. When consents may be presumed. § 19. Franchise defined — Its character — Classification. — Franchises are special privileges conferred by government upon individuals, and which do not belong to the citizens of the country, generally, of common right. It is essential to the character of a 60 THE FRANCHISE. § 19 franchise that it should be a grant from the sovereign authority, and in this country no franchise can be held which is not derived from a law of the State. 1 Corporate franchises are of two kinds or classes; the one, the right of the members to exist as a cor- porate body, evidenced by the charter or articles of incorporation, the legislature under the reserve power to repeal may take away at any time; the other, the powers and privileges vested in and to be exercised by the corporate body as such, are the franchises of, or belonging to, the corporation, which are inseparable from its tangible property, and which, as property, will survive the dissolution of the corporation itself. 2 The latter class of fran- 1. Bank of Augusta v. Earle, 38 U. S. (13 Pet.) 519, 595, 10 L. ed. 274, 311. 2. " The essential properties of cor- porate existence are quite distinct from the franchises of the corpora- tion. The franchise of being a cor- poration belongs to the corporators, while the powers and privileges vested in and to be exercised by the cor- porate body as such, are the fran- chises of the corporation. The latter has no power to dispose of the fran- chise of its members, which may sur- vive in the mere fact of corporate ex- istence after the corporation has parted with all its property and all its franchises." Memphis & L. R. R. Co. v. Railroad Com'rs, 112 U. S. 609, 621, 5 S. Ct. 299, 28 L. ed. 837, 841. And see Hazleton Boiler Co. v\ Hazleton Tripod Boiler Co., 137 111. 233, 28 N. E. 248. At common law it has been held that real estate acquired for the use of a canal company cannot be sold on execution against the corporation separate from its franchise, so as to destroy or impair the value of such franchise. Gue v. Tide Water Canal Co., 65 U. S. (24 How.) 254, 16 L. ed. 635. The tracks of a. railroad company, and the franchise of main- taining and operating its road in a public street are also inseparable, in the absence of express legislative au- thority providing for their severance. The statute of New York authorizing the sale of the franchise and prop- erty of a railroad company on execu- tion seems to recognize the indissolu- bility of the connection between the corporeal property and its corporeal right of enjoyment. People v. O'Brien, 111 N. Y. 1, 47, 18 N. E. 692. " The term ' franchise ' has several signifi- cations, and there is some confusion in its use. The better opinion, adopted from the authorities, seems to be that it consists of the entire privilege embraced in and consti- tuting the grant." Bridgeport v. N. Y., etc., R. Co., 36 Conn. 266. A stat- ute authorizing a village to issue bonds for waterworks is not the grant of a corporate franchise. Brady v. Moulton, 61 Minn. 185, 63 N. W. 489 ; Attorney-General v. Chicago, etc., R. Co., 35 Wis. 425. " The kinds of business which corporations or- ganized either under title II., chap. 34 (of Gen. St. 1878), or under the act of 1873, are authorized to carry on, are powers but not franchises, because it is a right possessed by all citizens who choose to engage in it, without any legislative grant. The only franchise which such corpora- 61 § 19 THE FBANCHISE. chises cannot be affected by legislation freed from the restrictions of the Federal Constitution as to the impairment of the obligation of contracts and interference with vested rights, except that the right reserved to the legislature to alter and amend, confers power to pass all needful laws for the regulation and control of the domestic affairs of the corporation. 3 And this right, in part at least, is generally delegated to municipal authorities. These au- thorities may ordinarily determine and dictate in what manner and upon what conditions the corporation may exercise the fran- chises conferred by the State, but nothing more. 4 In Louisiana it has been declared that city authorities have no legal power to create corporations or to grant franchises and that this can be done by the State only. The right of way which a city may con- cede through her streets is held not to be a franchise in law. Such privileges are spoken of as " secondary franchises," instru- tions possess is the general franchise to he or exist as a corporate entity. Hence if they engage in any business not authorized by the statute it is ultra vires, or in excess of their powers, but not a usurpation of fran- chises not granted, nor necessarily a misuser of those granted." State v. Minnesota Thresher Mfg. Co., 40 Minn. 213, 225, 41 N. W. 1020. " It is not necessary in this case that we should hold that the fran- chise of this company, to be a cor- poration, is a subject of sale or trans- fer. The right to build, own, man- age, and run a railroad, and take the tolls thereon, is not of necessity of a corporate character or dependent upon corporate rights. It may belong to and be enjoyed by natural persons, and there is nothing in its nature in- consistent with its being assignable." Middlebury Bank v. Edgerton, 30 Vt. 190; Peter v. Kendal, 6 B. & C. 703, 13 E. C. L. 299. In Ev. L. St. J. O. H. v. Buffalo Hyd. Assn., 64 N. Y. 561, 565, it was held that the estate and interest of * corporation in real property, whether a mere easement or a right of pos- session or title in fee, was the sub- ject of a sale as property distin- guished from the incorporeal fran- chises of the company, under the act of incorporation. And see Griffin v. Spencer, 6 Hill (N. Y.) 525; Good- rich v. Burbank, 12 Allen (Mass.) 459. In New York the statute provides that whenever any street surface rail- road corporation shall have been dis- solved or annulled or its charter re- pealed, the consents authorizing its construction shall continue in full force, efficacy, and being, and shall be sold at auction to the local au- thorities. The Railroad Law, chap. 565 of 1890, § 105, as amended by chap. 676 of 1892, 3 Heydecker's Gen. Laws (2d ed.) 3320. 3. People v. O'Brien, 111 N. Y. 1, 48, 18 N. E. 692; Munn v. Illinois, 94 U. S. (4 Otto) 113, 24 L. ed. 77. 4. Chicago City Ry. Co. v. People, 73 111. 541, 548. And see Oakland, etc., R. Co. v. Brooklyn, etc., E. Co., 45 Cal. 365. 62 THE FRANCHISE. § 20 mentalities by means of which the corporate powers granted by the charter may be exercised. 5 § 20. Its character continued — How distinguished from charter or license. — Not all privileges of a corporation are franchises ; for example, the immunity of particular property of a corpora- tion from taxation is a privilege which may sometimes be trans- ferred under that designation ; 6 but such immunity is not itself a franchise of a railroad corporation which passes as such, without other description, to a purchaser of its property. 7 The franchises of a railroad corporation are rights or privileges which are essen- tial to the operation of the corporation, and without which its road and works would be of little value ; such as the franchises to run cars, to take tolls, to appropriate earth and gravel for the bed of its road, or water for its engines, and the like. They are positive rights or privileges, without the possession of which the road of the company could not be successfully worked. 8 There are certain other privileges, too, which are merely licenses, and not franchises, as where a corporation has a specific power to con- struct, maintain, and operate a railroad in a city, subject however to the consent of the city, and in such manner and upon such conditions as the city may impose ; if the city, by ordinance, grants the privilege of constructing and operating the railroad upon a certain street, the grant by the municipality is a mere license and not a franchise. 9 If the right is not exercise within 5. Shreveport Traction Co. v. Kan- Co., 10 Ohio St. 372 ; Meyer v. John- sas City, S. & G-. Ry. Co., 119 La. son, 53 Ala. 237; Mayor v. Norwich, 759, 5 St. Ry. Rep. 343, 44 So. 457. etc., R. Co., 109 Mass. 103. 6. Humphrey v. Pegues, 83 U. S. 9. Belleville v. Citizens' Horse R. (16 Wall.) 244, 21 L. ed. 326. Co., 152 III. 171, 38 N. E. 584, 26 7. Morgan v. Louisiana, 93 TJ. S. L. R. A. 681 ; Chicago City Ry. Co. (3 Otto) 217, 23 L. ed. 860. v. People, 73 111. 541; Atchison St. 8. Morgan v. Louisiana, 93 U. S. Ry. Co. v. Mo. Pac. R. Co., 31 Kan. (3 Otto) 217, 23 L. ed. 860; Chesa- 660. And see Wabash R. Co. v. City peake & Ohio Ry. Co. v. Miller, 114 of Defiance, 167 U. S. 88, 17 S. Ct. U. S. 176, 5 S. Ct. 813, 29 L. ed. 121 ; 748, 42 L. ed. 87. Where the statute Morawetz Corp., § 924 ; Cook v. De- grants a board of aldermen full power troit, G. H. & M. R. Co., 43 Mich. to lay horse railroad tracks and regu- 349, 5 N. W. 390; Eldridge v. Smith, late the running of cars thereon, a 34 Vt. 484; Pierce v. Emery, 32 N. license to » railroad corporation to H. 484; Coe v. Columbus, etc., E reasonably use a highway is not such 63 § 20 THE FRANCHISE. the time limited by the ordinance, 10 or if exercised and subse- quently abandoned, 11 it may be conferred by the city upon another company without first procuring a judicial decree of forfeiture. Where, by location in city streets under legislative authority and municipal grant, the railroad has acquired a right of way, its franchise consists in the right to lay and use exclusively a rail- road, subject to the duty of running cars thereon. It has no interest in, or control over, that part of the street or avenue not occupied by its own road, except that common to the rest of the community, viz., that it shall be kept free and clear for public use. 12 The franchise, that is the right to construct, maintain, and operate a railroad in the public streets, cannot be sold on execu- tion, 13 nor will an action lie at law to recover damages against one claimed to have usurped the right, nor to recover possession of the franchise. 14 If by contract with municipal authorities a street railroad company is given a right to operate a railroad in certain streets to the exclusion of all others, the right thus acquired, although a property right, is not a franchise, unless the statute expressly authorized the city to grant such exclusive right. 15 But a right secured to it by the State itself, by special appropriation of an additional ease- performance of the condition. But ment as, without special provision when a mere license is granted by a therefor, will entitle abutting owners city upon conditions subsequent, it to compensation ; it violates no con- may, for satisfactory reasons, waive stitutional right. Attorney-General a strict performance of the condi- v. Met. R. Co., 125 Mass. 515. A tion." Chicago City R. Co. v. People, permission to occupy a street is not 73 111. 541. " a special privilege or immunity," 12. N. Y. & H. R. Co. v. Forty- within the meaning of the constitu- second St., etc., R. Co., 50 Barb. (N. tional inhibition. Atchison St. Ry. Y.) 285. Co. v. Mo. Pac. R. Co., 31 Kan. 660. 13. N. Y. & H. R. Co. v. Forty- 10. Atchison St. R. Co. v. Nave, second St., etc., R. Co., 50 Barb. (N. 38 Kan. 744, 17 Pac. 587, 36 Am. & Y.) 285. Eng. R. Cas. 29. 14. Budd v. Multnomah St. Ry. 11. Great Central R. Co. v. Gulf, Co., 15 Oreg. 404, 15 Pac. 654. etc., R. Co., 63 Tex. 529, 26 Am. k 15. Milhau v. Sharp, 27 N. Y. 811. Eng. R. Cas. 114. "If the State in In the case cited it was held that a granting a franchise imposes a limi- resolution of the common council au- tation or condition that a certain thorizing private persons to construct thing shall be completed within a and operate a railroad upon certain given time, no other power can waive conditions, without limitation as to a forfeiture arising from the non- time, or reserving a power of revoca- 64 THE FRANCHISE. § 21 act of the legislature, to charge a specified rate of fare is a priv- ilege or franchise in the nature of property which vests in the corporation, and. until repealed is entitled to the same protection from invasion as any other species of property. It is alienable, transferable by mortgage, and passes with the property to a pur- chaser under a judgment in foreclosure, or may be transmitted by conveyance and by consolidation of different corporations. 16 § 21. Power of municipality to grant — Generally. — Street sur- face railroads had their origin in the days of special legislation. Each company then had its own act of incorporation, in which its route was described and its powers defined. These companies were confined to the cities and large towns of the State, and their cars were moved by horse power, and were a substitute for the omnibus and other vehicles devoted to the carriage of passengers, which had been previously in common use. In later years, under constitutional limitations, general laws have been passed in most of the States providing for the organization of these companies to construct, maintain, and operate street surface railroads, for public use, and limited in many States to the conveyance of pas- sengers. These general laws usually confer upon the local authori- ties over streets and highways power to control the location, con- struction, and operation of the railroad, and prohibit the use of streets for railroad purposes without their consent. 17 The State determines for each of its municipal corporations the powers it should exercise and the capacities it should possess, and what restrictions should be placed upon these, as well to prevent clash- ing of action and interest in the State as to protect, individual corporators against injustice and oppression at the hands of the local majority. 18 A street railroad company cannot build under its charter alone. It must have the consent of the proper munici- pal or local authorities, or it cannot move. If the proposed line tion, was not license, nor an act of 17. Pennsylvania R. Co. v. Mont- municipal legislation merely, but a gomery County Pass. Ry. Co., 167 contract, which, if valid, it could not Pa. St. 62, 31 Atl. 468, 5 Am. Blectl. abrogate. And see Met. St. Ry. Co. Cas. 166. v. Chicago, etc., Ry. Co., 87 111. 317. 18. Detroit Citizens' St. Ry. Co. 16. Parker v. Elmira C. & N. R. v. Detroit Ry. Co., 171 U. S. 48, 18 Co., 165 N. Y. 274, 280, 59 N. E. 81. S. Ct. 732, 43 L. ed. 67. 5 65 § 21 THE FEAWCHISE. passes through a city, borough, or township intermediate the termini, and that city, borough, or township refuses its permission, the power to build the road described in the application and charter cannot be exercised. It must be possible for the company to complete its line, before it has the right, as against any city, borough, or township into which its line extends, to begin work. It is not possible for such company to complete its line, without the consent of the local authorities of the districts through which it passes ; and where this is refused in one or more of the munici- pal or quasi municipal divisions through which its line runs, the building of its proposed road under its charter is an impossi- bility. 19 The power of the municipality in the procedure by which the franchise to construct and operate a street surface rail- road is granted, being such only as is expressly conferred, or necessarily implied from other powers expressly conferred, or duties definitely prescribed, in the consideration of any case which may arise or of any decision reported, the statute laws of the State upon the subject must be carefully studied. It is impossible within the scope of this work to introduce and report all the stat- utes relating to street surface railroads in the various States. In the notes that portion of the New York Railroad Law (statute) having, a special reference to street surface railroads will appear as illustrating, quite generally, the statute law of the various States. 20 i 19. Pennsylvania R. Co. v. Mont- York is comprised in sections 170- eomery County Pass. R. Co., 167 Pa. 209 > Laws 1910 » cha P- 481 > formerly cL on oi Ail tao e: a_ tm _j-i n„„ sections 90 to 112 of the Railroad St. 62, 31 Atl. 468, 5 Am. Blectl. Cas. Law> chap 565 rf lg90 gection m 166, 173 ; Rahn Township v. Tamaqua contains the general provisions, and & L. St. Ry. Co., 167 Pa. St. 84, 36 W. is as follows: N. C. 165, 31 Atl. 472; Pennsylvania "The provisions of this article R. Co. v. Turtle Creek Valley Elea- shall apply to every corporation trie Ry. Co., 179 Pa. St. 584, 36 Atl. which, under the provisions thereof, 348; West Jersey Traction Co. v. or of any other law, has constructed Camden Horse Railroad Co., 53 N. J. or shall construct or operate, or has Eq. 163, 35 Atl. 49; Reading Co. v. been or shall be organized to con- Schuylkill Valley Traction Co., 14 struct or operate, a street surface Mont. Co. L. Rep. 10; Perkiomen v. railroad, or any extension or exten- Schuylkill Valley Traction Co., 14 sions, branch, or branches thereof, Mont. Co. L. Rep. 22. for public use in the conveyance of 20. The statute especially devoted persons and property for compensa- te street surface railroads in New tion, upon and along any street, ave- 66 THE FEANCHISE. § 22 § 22. Granting of franchise a legislative function. — The grant- ing of a franchise is a legislative, not a judicial, function. An application for such a franchise is in no sense, nor to any extent, a proceeding inter partes. Nor is it an adversary proceeding. It is not adverse, in a legal sense, to the municipal corporation to whose authorities it is made, for they have absolute discretion to grant or refuse it, and from their decision, properly given, there is no appeal. In a sense, the granting of a franchise is a matter of grace, proceeding voluntarily from them, and not a right which anybody can obtain by compulsory process. 21 Such authority nue, road, highway, or private prop- erty, in any city, town, or village, or in any two or more civil divisions of the State, and every such corporation roust comply with the provisions of this article. Any street surface rail- road corporation, at any time propos- ing to extend the road or to construct branches thereof, may, from time to time, make and file in each of the offices in which its certificate of in- corporation is filed, a, statement of the names and descriptions of the streets, roads, avenues, highways, and private property in or upon which it is proposed to construct, maintain, or operate such extensions or branches. Upon filing any such state- ment and upon complying with the conditions set forth in section ninety- one of the Railroad Law, every such corporation shall have the power and privilege to construct, extend, oper- ate, and maintain such road, exten- sions, or branches, upon and along the streets, avenues, roads, highways, and private property named and de- scribed in its certificate of incorpora- tion or in such statement. Every such corporation, before constructing any part of its road upon or through any private property described in its articles of association or certificate of incorporation or statement, and before instituting any proceeding for the condemnation of any real prop- erty, shall make a map and profile of the route adopted by it upon or through any private property, which map and profile shall be certified by the president and engineer of the company, or a majority of its di- rectors, and shall be filed in the office of the clerk of the county in which the road is to be constructed, and all provisions of section six of the act hereby amended so far as applicable shall apply to the route so located. If any such street surface railroad company is unable to agree for the purchase of any such real property, or of any right or easement therein required for the purpose of its rail- road, or if the owner thereof shall be incapable of selling the same, or if, after diligent search and inquiry, the name and residence of such owner cannot be ascertained, it shall have the right to acquire title thereto by condemnation in the manner and by the proceedings prescribed by the Condemnation Law. Nothing in this section shall be deemed to authorize a street railroad corporation to ac- quire real property within a city by condemnation. 21. City of Benwood v. Wheeling Ry. Co., 53 W. Va. 465, 44 S. B. 271, 1 St. Ry. Rep. 808. 67 § 23 THE FBANCHISE. as a municipality has to grant a right ®f way in its streets to street surface railroads is legislative; and the exercise of discretion is not subject to judicial control. 22 Its act must be ultra vires, fraudulent, or such as to impair a contract or a vested right, to justify judicial intervention. If it make an unauthorized grant it cannot be made liable for any act of its grantee. 23 So in Wis- consin it is decided th^at under the statutes of that State the com- mon council of a city has power to pass an ordinance granting to a street railway corporation the right to use the streets and that such an ordinance has the force and effect of a statute, is legisla- tive in its character, and will not be revised by the courts because of inexpediency or impropriety. 24 § 23. Extent of municipal power — Limitations. — The power to grant a franchise does not exist in the local authority unless unmistakably conferred by the legislature or indispensably neces- sary to the exercise of some other power expressly conferred. 25 The ordinary and incidental powers of a municipal corporation are not broad enough to include the power to grant street railway franchises, whereby any man or company of men may possess a right from which the public generally are excluded. 26 But while 22. Adamson v. Nassau Electric thority which a city may exercise E. Co., 89 Hun (N. Y.) 261, 34 N. Y. over its streets. It may authorize S. 1073 ; Ewing v. City of Seattle, 55 an interurban street railway company Wash. 229, 104 Pac. 259. to run interurban cars over its tracks 23. Forman v. New Orleans & C. without the consent of the city au- R. Co., 40 La. Ann. 446, 4 So. 246; thorities and may regulate the time Murphy v. Chicago, 29 111. 279; Green and manner in which passengers and v. Portland, 32 Me. 431 ; Hinchman property shall be transported and the v. Paterson Horse R. Co., 2 C. E. tolls and compensation to be paid Green (N. J.) 75; Rowe v. Augusta therefor. Roberts v. Terre Haute Council, 24 Ga. 326. Elec. Co., 37 Ind. App. 664, 4 St. Ry. 24. Lange v. La Crosse & Eastern Rep. 254, 76 N. E. 323, 895. Ry. Co., 118 Wis. 558, 1 St. Ry. Rep. 26. Eichels v. Evansville St. Ry. 834, 95 N. W. 952. Co., 78 Ind. 261; Coleman v. Second 25. Detroit Citizens' St. Ry. Co. Ave. R. Co., 38 N. Y. 201 ; Potter v. v. Detroit Ry. Co., 171 U. S. 48, 18 Collis, 156 N. Y. 16, 17, 50 N. E. 413; S. Ct. 7, 43 L. ed. 67; Louisville & Denver, etc., R. Co. v. Denver City R. N. R. Co. v. Mobile, J. & K. C. R. Co., Co., 2 Colo. 682 ; Blake v. Winona, 124 Ala. 162, 26 So. 895. etc., R. Co., 19 Minn. 418. The privi- It is within the power of the legis- leges of a street railroad company lature to limit and restrict the au- are determined, not by the ordinances 68 THE FRANCHISE. § 23 city authorities have no right to grant street railway franchises, except in so far as they may be authorized by the legislature, and then only in the manner and under the conditions prescribed by the statute; 27 yet, where power is given by the charter of the company to lay its track along the streets of a city, the city au- thorities may consent to such use of its streets by the company, although there may be no express power in the charter of the city authorizing it to grant such a privilege. 28 While the legislature can authorize municipal authorities to permit private corporations under which, with the consent of the majority of the electors, it is given the right to use the streets of a city, but by the general law. Lincoln St. Ry. Co. v. City of Lincoln, 61 Neb. 109, 84 N. W. 802. A special legis- lative enactment, authorizing a city to open, grade, and pave a street as soon as a turnpike company should release all of its interest in such por- tion of the highway lying within the city limits, contemplates a release by the company of the right to operate a passenger railway which it pur- chased at judicial sale. West Phila- delphia Pass. Ry. Co. v. Philadelphia, West Chester Turnpike Road Co., 186 Pa. St. 459, 40 Atl. 787. 27. Beekman v. Third Ave. R. Co., 153 N. Y. 144, 152, 47 N. E. 277. 28. Almand v. Atlantic. Consol. St. Ry. Co., 108 Ga. 417, 33 S. E. 6; Gaedeke v. Staten Island M. R. Co., 43 App. Div. (N. Y.) 514, 60 N. Y. S. 598. In the absence of a statute there is no implied restriction spring- ing from public policy upon the power of a city to grant » street easement to a railroad or street car company, having the requisite franchises from the State, unlimited as to time. Louisville Trust Co. v. Cincinnati, (C. C. App., 6th C.) 76 Fed. 296, 22 C. C. A. 234, 47 U. S. App. 36. Where a railroad track is laid down in a street, by authority of the city council, to connect a private manu- facturing establishment with other railroad tracks, it becomes a public highway and the city council has the right to devote the operation of the street to that use. Parlin v. Mills, 11 111. App. 396. A railroad may be permitted by the city authorities to use a. highway reserved for public use as a highway and for other pub- lic uses, under an Act of Congress which provides for platting lands into towns. Burlington Gas Light Co. v. Burlington C. R. & N. Ry. Co., 165 U. S. 370, 41 L. ed. 749, 17 Sup. Ct. Rep. 359. The city council of Montreal may, by resolution, authorize the construc- tion in the city streets of a tempo- rary electric railway intended to ac- commodate visitors to an exhibition, saving the recourse of persons dam- aged by such construction; if there be question as to its power, a by-law subsequently passed, authorizing the construction, is a sufficient ratifica- tion. Bell Telephone Co. v. Montreal St. R. Co., (Rap. Jud. Quebec) 6 B. R. 223. A street railroad company cannot acquire the right to turn cars forty-seven feet long at the intersec- tion of two principal business streets of a city without obtaining the right to do so from the common council. Rapid R. Co. v. Mt. Clement, 118 Mich. 133, 76 N. W. 318. SO § 24 THE FRANCHISE. to construct and operate street railway lines upon tie streets, the authority thus conferred must be exercised within the limits of reasonable discretion, and not so as to materially injure the prop- erty of abutting owners. The entire width of the street cannot, under general legislative authority, be given up to railroad pur- poses 29 § 24. Rules as to extent of power further considered and illus- trated. — Where the city council is authorized to regulate the use of streets and to permit or prohibit any street railroad in any street, and has " no power to grant " the right to lay down any railroad track in any street except on a specified petition, it can- not grant the right to use a street for railroad purposes except on such petition. 30 Where no authority is conferred upon a mu- nicipal corporation to legislate by way of resolution it has no 29. Dooly Block v. Salt Lake City Rapid Transit Co., 9 Utah 31, 33 Pac. 229, 4 Am. Electl. Cas. 189, 199, 8 Am. R. & Corp. Rep. 327. An ordi- nance requiring a street railway com- pany to run its lines along narrow streets, over a narrow bridge, and near to existing tracks, is unreason- able, and the courts may so declare it under the Rhode Island statutes. Woonsocket St. Ry. Co. v. City of Woonsocket, 22 R. I. 64, 46 Atl. 272. A municipality has no authority to grant a right to lay a street railroad track in an alley and operate cars thereon, where, by reason of the nar- rowness of the alley, and the fre- quency with which the cars are re- quired to be run, it would result in the loss of the use of the alley to the abutting owners. Watson v. Robertson Ave. R. Co., 69 Mo. App. 548. Municipal consent to the lay- ing of a street railroad on the streets of a municipality does not authorize the laying of two distinct railroads. West Jersey Traction Co. v. Camden Horse R. Co., 53 N. J. Eq. (8 Dick.) 163, 35 Atl. 49. A grant of location for tracks to a street railroad com- pany is not void because the com- pany's use of such location is merely temporary. Daniels v. Commonwealth Ave. R. Co., 175 Mass. 518, 56 N. E. 715. The local authorities are vested with a judicial discretion, and may consider the width and other condi- tions of the street, and if it be pro- posed to cross a bridge, whether the bridge has the requisite strength to support a street railroad and moving cars. The route or location of the road cannot be considered with refer- ence to particular streets one by one, but must be viewed as a whole. Ap- peal of Cherryfield & M. Electric R. Co., 95 Me. 361, 50 Atl. 27. 30. North Chicago St. R. Co. v. Cheetham, 58 111. App. 318. The re- quired petition is not invalid because it shows on its face that the names of some of the petitioners were signed by agents whose authority does not appear. Tibbets v. West & South Towns St. Ry. Co., 153 111. 147, 38 N. E. 664, affg. 54 111. App. 180. 70 THE EBANCHISE. 24 power to grant a street railway franchise by resolution. 31 And the power to regulate the use of streets for railroad purposes is a continuing one, and a city council cannot, by one exercise thereof, deprive succeeding councils of the power to exercise it again when necessary in the public interest. 32 "When authority to grant a franchise, or to take any step in a procedure for a franchise, is given to the common council of a city, such authority cannot be delegated by it to a subordinate board or officer. 33 It cannot grant a right of way to a street railroad company over other streets than those named in the charter of the company designating its route ; the charter and the ordinance must conform to give a valid grant on any street of the city. 34 Where its consent is not made necessary for the construction of a street railroad upon its streets, it can impose no terms on such construction. 35 "Where it has au- thority to grant such a right, and the members composing its governing body impose illegal terms intended for their individual advantage, any such grant made is void. 36 It cannot grant the right to a company not yet legally in existence, at least as against a company previously chartered, which, with reasonable prompt- 31. City of Savannah v. Hoist, 132 B. Co., 177 Pa. St. 382, 35 Atl. 721. Fed. 901, 65 C. C. A. 449, revg. de- To avoid a grade crossing at the in- cree, Hoist v. Savannah Electric Co., tersection of a railroad, a street rail- 131 Fed. 931. road company may diverge from the 32. New Orlenas City Ey. Co. v. highway and construct its railroad New Orleans, 44 La. Ann. 748, 11 on property secured for that purpose. So. 77, 50 Am. & Eng. E. Cas. 391. Pennsylvania R. Co. v. Glenwood & 33. State, Henderson v. Bell, 34 D. Electric St. E. Co., 184 Pa. St. Ohio St. 194; Citizens' St. Ey. Co. 227, 39 Atl. 80. v. Jones (C. C. Ark.), 34 Fed. 579; 36. Keogh v. Pittston, etc., Ey. Co., Central Crosstown E. Co. v. Metro- 5 Lack. Leg. N. 242. In the case politan St. Ey. Co., 16 App. Div. (N. cited the right of way was obtained Y.) 229, 44 N. Y. Supp. 752. In the by promising to the councilmen ease last cited the dock department passes over the road and $100 each of the city of New York authorized for election expenses. In Lehigh Coal the extension of a street railroad into & Nav. Co. v. Inter-County St. Ey. a street not specified in the railroad Co., 167 Pa. St. 75, 33 W. N. C. 160, company's charter. 31 Atl. 471, the supervisor of the 34. Crosstown R. Co. v. Metropoli- township gave consent to the con- -tan St. K. Co., 16 App. Div. (N. Y. ) struction of a street railroad on the 229, 44 N. Y. S. 752; Citizens' St. highways of the township provided B. Co. v. Africa, 100 Tenn. 26, 42 S. the company would employ him and W. 25. his son for life at an agreed price 35. Philadelphia v. Empire Pass. per day; the franchise was held void. 11 § 24 THE FEANCHISB. ness, obtains a later grant of permission to use the same street. 37 And neither authority given to a city by its charter to establish, pave, repair, and otherwise improve its streets nor a provision of a statute requiring it to keep its streets reasonably safe and con- venient for public travel authorizes it to construct, own, and lease street railway tracks to a railway company. 38 It cannot grant to a company whose charter prohibits the use of certain motive power upon the streets the right to use such motive power thereon. 39 And where a railroad company has intruded upon a public street it is none the less a trespass against the owner of the fee, although the municipality subsequently passed an ordinance granting the right to construct the road in the street. 40 But where all the steps necessary to jurisdiction have been taken at the time of the passage of the final grant, and no fraud or unfair dealings are charged, a municipality, by ordinance, establishing a street railroad, waives all irregularities. 41 Under such authority to grant a street rail- road company a right of way within its streets, limited, however, as to time, a grant of such right by the municipality, without any limit of time whatever, is not a valid exercise of the power, and is not good as a privilege for the time specified in the statute. 42 In Michigan, it has been decided that the city's power of consent to the construction of a street railroad in its streets is limited in time to the life of the franchise of the company, and any easement 37. Homestead St. Ry. Co. v. should be granted by the municipal Pittsburg & H. Electric R. Co., 166 assembly to any person or corpora- Pa. St. 162, 27 L. R. A. 383, 30 Atl. tion for a longer period than twenty- 950, 955, 25 Pittsb. L. J. (N. S.) 357. five years. L. 1897, chap. 378, § 73. But see Sloane v. People's El. R. Co., The aldermen of Brooklyn, claiming 7 Ohio C. C. 84. that the charter of Greater New York 38. Bird v. Common Council of had not yet taken effect, granted con- City of Detroit, 148 Mich. 71, 111 sent to a railroad company to operate N. W. 860, 5 St. Ry. Rep. 456. in certain streets without any limita- 39. Farrell v. Winchester Ave. R. tion as to time. It was hr see State, Crow v. West Side St. R. more, according to the last federal Co., 146 Mo. 155, 47 S. W. 959; Peo- census or state enumeration, must pie, San Francisco & S. J. R. Co. v. contain the condition that the right. Oaycroft, 111 Cal. 544, 44 Pac. 463. franchise, and privilege of using any The New York Railroad Law (chap. street, road, highway, avenue, park, 565 of 1890, now in substance con- or public place shall be sold at public tained in Laws 1910, chap. 481, § auction to the bidder who will agree 173) in this regard read as follows: to give the city the largest percentage " § 93. Condition npon which per annum of the gross receipts of consent shall be given; sale of such corporation, with a bond or un- 99 § 38 THE FRANCHISE. which is essential in granting the franchise. It can in nowise be dertaking in such form and amount and with such conditions and sureties as may be required and approved by the comptroller or other chief fiscal officer of the city, for the fulfilment of such agreement and for the com- mencement and completion of its rail- road within the time designated by law and for the performance of such additional conditions as the local, au- thorities in their discretion may pre- scribe. Whenever such consent shall provide for the sale at public auction of the right to construct and operate a branch or extension of an existing railroad, such consent shall provide that but one fare shall be exacted for passage over such branch or exten- sion and over the line of road which shall have applied therefor; and fur- ther, that if such right shall be pur- chased by any corporation other than the applicant, that the gross receipts from joint business shall be divided in the proportion that the length of such extension or branch so sold shall bear to the entire length of the road whether owned or leased which shall have applied therefor and of such branch or extension, and that if such right shall be purchased by the appli- cant, the percentage to be paid shall be calculated on such portion of its gross receipts as shall bear the same proportion to the whole value there- of as the length of such extension or branch shall bear to the entire length of its road whether owned or leased. The bidder to whom such right, fran- chise and privilege may be sold must be a duly incorporated railroad cor- poration of this state, organized to construct, maintain and operate a street railroad in the city for which such consent may be given; but no such corporation shall be entitled to bid at such sale unless at least five days prior to the day fixed for such sale, or five days prior to the day to which such sale shall have been duly adjourned, the corporation shall have filed with the comptroller or other chief fiscal officer of the city, a bond in writing and under seal, with sufficient sureties to be ap- proved by such comptroller or officer, conditioned that if such right, fran- chise and privilege shall be sold to such corporation, to pay to the city where such railroad is situated the sum of fifty thousand dollars as liqui- dated damages and not by way of penalty in the event of the failure of such bidder to fulfil the terms of sale, comply with the provisions of this article pertinent thereto, and complete and operate its railroad ac- cording to the plan or plans and upon the route or routes fixed for its con- struction within the time hereinafter designated for the construction and completion of its railroad, and also conditioned to pay to the corporation first applying for the consent, if it shall not be the successful bidder, the necessary expenses incurred by such corporation prior to the sale pursu- ant to the requirements and direction of the local authorities, within twenty days after such sale and upon the certificate of the comptroller or other officer conducting the same as to the sum or amount to be paid. Notice of the time and place and terms of sale, and of the route or routes to be sold, and of the conditions upon which the consent of the local authorities to the construction, operation and extension of such street railroad will be given, must be published by such authorities for at least three successive weeks, and in any city having two or more daily newspapers, at least three times a week in two of such papers to be 100 THE FEANCHISE. 38 modified, and the consent must inure to the best bidder. If a designated by the mayor, and in any city where two daily newspapers are not published, at least once a week in a newspaper published therein to be designated by the mayor. The comptroller or other chief fiscal offi- cer of the city shall attend and con- duct such sale and may adjourn the same, but not more than four weeks in all, unless further adjournments should, in his discretion, be necessary by reason of the pendency of legal proceedings, and shall cancel any bid if in excess of the gross receipts, leav- ing in force the highest bid not in excess if the bidder shall not have furnished adequate security entitling such bidder to bid or shall otherwise fail to comply with the terms and conditions of sale, and shall resell the consent and license in the same manner as hereinbefore provided for the first sale. The bidder who may build and operate such railroad shall at all times keep accurate books of account of the business and earnings of such railroad, which books shall at all times be subject to the inspec- tion of the local authorities. In the event of the failure or refusal of the corporation operating or using such railroad to pay the rental or per- centages of gross earnings agreed upon, and after notice of not less than sixty days to pay the same, the local authorities interested therein may apply to any court having juris- diction upon at least twenty days' notice to such corporation, and after it shall have had an opportunity to be heard in its defense, for judgment declaring the consent and right to operate and use such railroad for- feited and authorizing the sale again of the same in the manner hereinbe- fore prescribed, provided, however, that no such resale of any such con- sent and right heretofore granted shall be authorized except upon the condition that the same shall be sub- ject to all liens and incumbrances ex- isting on said railroads at the time such forfeiture may have been de- clared. All consents hereafter given by the local authorities, unless it be otherwise provided in such consent or in some renewal thereof may be forfeited at the expiration of two years thereafter, and every consent by the local authorities of any city of the first class or of any city, town or village now embraced within the corporate limits of any city of the first class heretofore given to or ac- quired or owned by any street sur- face railroad corporation, since Janu- ary first, eighteen hundred and nine- ty, is hereby ratified and confirmed, and shall be deemed to be in full force and effect, and shall continue until and including December thirty- first, nineteen hundred and three when it may be forfeited unless prior thereto the required consent of prop- erty-owners, or determinations by the appellate division of the supreme court, in lieu thereof, shall have been first obtained. The board of sinking fund commissioners of any city shall have power to reduce, compromise or release any obligation or liability to the mayor, aldermen and commonalty of such city under the provisions of chapter six hundred and forty-two of the laws of eighteen hundred and eighty-six, or of this chapter when- ever, in the opinion of such board, such release or compromise shall be just or equitable, or for the public interest, the reason for any such re- lease or compromise to be stated in the recorded proceedings of such board. No lease by any company or- ganized under section two of the rail- 101 § 38 THE FRANCHISE. city whose power is so limited grants a right to occupy its streets road law and owning a right, privi- lege or franchise of using any street, avenue, highway or public place for railroad purposes, which has hereto- fore been sold under the provisions of this section, hereafter made to any street surface railroad company which is not subject to the payment of any percentage pursuant to this section, and which is not organized for the purpose of operating a, railroad in a city of the first class, shall be valid until the leased company shall have filed in the office of the secretary of state and in the office of the clerk of the county where its certificate of incorporation is filed, its acceptance in writing and under its corporate seal of the provisions of this section as now amended; and upon such ac- ceptance being filed, the total per- centage amount thereafter to be paid annually under this section and un- der section ninety-five of this act, shall be at the rate of five per cen- tum of the gross receipts derived from the operation of the roads of the lessor and lessee companies con- sidered as one system. The lessee company, at the time of filing its ac- ceptance aforesaid, shall also file in the same offices a bond to the people of the state, executed in duplicate by it and a surety company authorized by law to act as surety on bonds and undertakings, in the penal sum of fifty thousand dollars, and condi- tioned for the faithful payment an- nually of the total percentage afore- said, and such bond shall be deemed to be a full compliance with the con- dition for a bond or undertaking re- quired by this section to be provided for in the conditions of the consent of the local authorities and shall su- persede any such bond or undertak- ing theretofore given. Whenever it shall be desired to unite two street surface railroad routes at some point not over one-half mile from such re- spective lines or routes, and establish by the construction of such connec- tion a new route for public travel, and the corporation or corporations owning or using such railroads shall consent to operate such connection as a part of a continuous route for one fare, and it shall appear to the local authorities that such connection cannot be operated as an independent railroad without inconvenience to the public, but that it is to the public advantage that the same should be operated as a continuous line or route with existing railroads, or whenever for the purpose of connecting with any ferry or railroad depot, it shall be desired to construct an extension or branch not more than one-half mile in length, of any street surface railroad corporation, no sale of such franchise shall be made as provided in this section, but any consent of the local authorities for the construc- tion and operation of such connection, extension or branch shall provide that the corporation or corporations operating such connection, extension or branch shall pay into the treasury of said city annually the percentage provided for extensions or branches in section ninety-five of this chapter, for the purposes, at the times, in the manner and upon the conditions set forth in such section. The provisions of this section as now amended shall apply to all cities of the first class, but nothing herein contained shall be construed as superseding, repealing or modifying any provision of the charter of any city, village or town, nor as modifying or affecting the terms of a certain contract bearing date January first, eighteen hundred 102 THE FRANCHISE. § 38 except in accordance with the requirement of the statute, the and ninety-two, entered into by and between the city of Buffalo and the various street surface railroad corpo- rations therein named in such con- tract, except that the provisions of this act as amended, which continue and confirm the consents of local au- thorities shall apply to street surface railroads in the city of Buffalo, as well as in other cities of the first class. This section shall not modify or affect any contract heretofore en- tered into between a street surface railroad corporation and any city of the third class, town or village, regu- lating the payment of percentages or paving of streets, and any city of the third class, town or village, is hereby authorized to enter into any such form of contract with any street sur- face railroad corporation, and any such contract heretofore entered into is hereby ratified and confirmed. The local authorities may, in their discre- tion, make their consent to depend upon any further conditions respect- ing other or further security, or de- posit, suitable to secure the construc- tion, completion and operation of the railroad within any time not exceed- ing the period prescribed in this ar- ticle and respecting the character, quality or motive power of the road to be completed and respecting the grouping of streets, avenues and high- ways into one route, or into several routes, for the purpose of a single sale of the franchise, right or privi- lege for all the routes collectively, or of the separate sale for each route or street, as said local authorities may think expedient and respecting the payment of the percentage agreed to be paid at the sale upon all the lines operated by the successful bid- der within the city and respecting any matter involved in or affecting the computation of percentage pay- ments and respecting the use of the railroads to be constructed under the consent by any other company and respecting the interchange of traffic and division of fares between the com- pany operating such railroads and any other company, and respecting the application of any provision here- in contained as to carriage of pas- sengers for single fare and the divi- sion of gross receipts and the pay- ment of percentages to the line leased or operated under contract by the ap- plicant for an extension, and also re- specting any other matter concerning which, in their judgment, further conditions would be for the public in- terest. Any and all consents, sales and proceedings heretofore granted, made or taken in substantial compli- ance with the provisions of this sec- tion, as now last amended, are here- by approved, ratified and confirmed, and any purchaser or successor to or transferee of the rights of the pur- chaser of any right or privilege here- tofore sold substantially in accord- ance with the provisions of this sec- tion as now amended, is authorized to acquire the requisite consents of property-owners, or, in lieu thereof, determinations by the appellate divi- sion of the supreme court, and to pro- ceed with the construction of its road, at any time within three years there- after." (As amended by chap. 306 of 1892, chap. 676 of 1892, chap. 434 of 1893, and chap. 494 of 1901.) Before the charter of Greater New York there was no provision requir- ing the city of Brooklyn to sell a street railway franchise to the high- est bidder. Adamson v. Nassau El. R. Co., 89 Hun (N. Y.) 261, 68 St. Rep. (N. Y.) 851, 34 N. Yr Supp. 1073. 103 S 38 THE FRANCHISE. grantee obtains no rights thereunder. 28 A constitutional pro- vision requiring a municipality to award a franchise for a street railway to the highest and best bidder and excepting trunk rail- way from its provisions, includes within the exception an interur- ban electric railway constructed for the purpose of carrying freight and passengers between two cities in different States. 29 In New York the statute limits the bidders at any sale of a fran- chise at auction £p railroad corporations authorized to construct and operate a street railroad in the city. 30 A bid cannot be re- jected as not made in good faith when it is made with the intention of complying with the terms of the sale in case the bid is accepted. 31 ISTor can it be rejected as not made in good faith upon anything not said and done by the bidder in the presence of the board awarding the contract at the time of an inquiry made by it as to the question of good faith ; and, in Ohio, such inquiry must be confined to the question, " Does the bidder withdraw his bid, The provisions of the New York Railroad Law (L. 1890, chap. 565, am'd L. 1901, chap. 494) as to sale of street railway franchise at public auction, held not applicable to city of Buffalo. Kuhn v. Knight, 190 N. Y. 339, 83 N. E. 293, affg. 115 App. Div. (N. Y.) 837, 101 N. Y. Supp. 1. 28. State v. Bell, 34 Ohio St. 194; Knorr v. Miller, 5 Ohio C. C. 609, 25 W. L. B. 128; Mathers v. Cincinnati, 3 Ohio C. C. 551. A franchise re- quired by statute to be disposed of to the highest bidder is invalid when advertised and sold to the highest bidder " in square yards of gravel pavement." Buckner v. Hart (C. C. E. D. La.), 4 Am. Eleetl. Cas. 21, 32 Fed. 835 ; affd , Hart v. Buckner (C. C. App. 5th C), 54 Fed. 925, 2 U. S. App. 488. The city of New Orleans may grant a right of way to a railroad company whose object is to carry freight on its cars beyond the city limits to a station where they will reach its own roadbed with- out complying with the provisions of a statute prohibiting the common council from granting, selling, or dis- posing of any " street railroad fran- chise " except after three months' publication of the terms and speci- fications of such franchise and its adjudication to the highest bidder. New Orleans City & L. R. Co. v. Wat- kins, 48 La. Ann. 1550, 21 So. 199. 29. Diebold v. Kentucky Traction Co., 25 Ky. Law. Rep. 1275, 2 St. Ry. Rep. 294, 77 S. W. 674. 30. Beekman v. Third Ave. R. Co., 153 N. Y. 144, 153, 47 N. E. 277. 31. Gallagher v. Johnson (Com. PI.), 30 Ohio L. J. 139. While the municipal authorities may impose any proper condition upon which their consent will be given, the con- ditions so imposed must be specified in thf notice of sale, and no other conditions can be inserted in the con- sent, or exacted or imposed upon the successful bidder than those required by the act and by the notice of sale; but the conditions imposed by the municipality must not in any wise contravene the statutory conditions. People ex rel. W. S. St. R. Co. v. 104 THE FRANCHISE. § 38 or does he intend to comply with its terms in case it is accepted ? " But the purpose of this and kindred statutes is to secure the most efficient service on the best possible terms to the public, and the officers controlling the sale, acting in good faith, have a large dis- cretion as to the time and manner of receiving and rejecting bids and as to the security to be furnished by bidders which the court will not control. 32 The insertion in the bid of the words " for himself and associates," after the words " the undersigned hereby proposes " does not make the bid that of any person other than the one signing it, nor require his bond to be executed by other persons, or that the condition of the bond provide that other per- sons enter into the contract. 33 An action cannot be maintained in a court of equity in which a municipal corporation seeks a determination, in respect to an auction sale of a street railroad franchise, whether the bidding has passed beyond all reasonable and valid bids, and which is the highest legal and valid bid, and to have the city comptroller directed to award the franchise ac- cordingly, or to have it determined whether the bids should be canceled and a new sale ordered. 34 A bidder for a franchise, under the New York statute, who withdraws after bidding a certain percentage of gross receipts cannot restrain the sale of the franchise to another bidder on the ground that its bid was ex- cessive and not made in good faith, even although its own bid was to the full amount of the gross receipts and any bid in excess thereof was void. 35 A contract by two active competitors for a street railway franchise, by which all competition is withdrawn and agreement is made to co-operate in securing the franchise and divide the profits of the enterprise and thus prevent all competi- tion and avoid the imposition of onerous conditions by municipal Barnard, 110 N. Y. 548, 18 N. E. 354; People's El. R. Co., 7 Ohio C. C. 84. Beekman v. Third Ave. Co., 153 N. 33. Gallagher v. Johnson (Com. Y. 144, 47 N. E. 277. PI.), 30 Ohio L. J. 139. 32. Johnson v. West Side St. Ry. 34. Mayor, etc., of City of New- Co., 10 W. L. B. 345; Knorr v. Mil- York v. Fitch, 9 App. Div. (N. Y. ) kr, 5 Ohio C. C. 609, 25 W. L. B. 452, 41 N. Y. S. 354. 128; Simmons v. Toledo, 5 Ohio C 35. Southern Boulevard R. Co. >-. C. 124, 1 Toledo Leg. N. 249; Beek- North New York City Traction Co.. man v. Third Ave. R. Co., 153 N. Y. Ifi Misc. Rep. (N. Y.) 263, 39 N. V. 144, 161, 47 N. E. 277; Sloane ,-. S. 2fl6. 105 §§ 39, 40 THE FRANCHISE. authorities is void as against public policy. 36 But the sale of the franchise is not illegal, because it happens that one purchaser, without his connivance or procurement, and without fraud, col- lusion, or undue influence being shown, is in a position, by reason of his situation, to bid a price higher than another. 37 And the fact that the price charged by the municipal authorities for a fran- chise may seem to be small does not invalidate the ordinance granting it where the»law confers upon the Board of Estimate the power and discretion of determining the prices to be charged for franchises in the public streets granted by ordinances of the mayor and city council and there is no allegation in the bill that the amount of the charge was collusively or dishonestly arrived at or was not fixed by such board in the manner prescribed by the charter. 38 § 39. Bids for franchise — lowest rate of fare — Void limita- tion in consent of abutting owner. — The object of a statute pro- viding that a city shall not grant a franchise to a street railway company except to the one that will agree to carry passengers at the lowest rate of fare and that shall have previously obtained the consent of a majority of the property owners along the line, is that the franchise shall be granted to the lowest bidder, and the right conferred by the legislature as to consent is that of consent- ing to the construction of a road in the streets and gives no priv- ilege to the property owner to limit his consent to a particular corporation. Therefore a limitation of a consent to a particular bidder is void, it being inconsistent with the requirement that the grant shall be to the lowest bidder, but the consent is held to be good as a consent to the construction of the road by the lowest bidder. 39 § 40. Extensions. — Under the New York statute, cited in notes to preceding sections in this chapter, what is called a branch 36. Hyer v. Richmond Trac. Co. 37. Johnson v. City of New Or- (C. C. App. 4th C), 42 U. S. App. leans, 105 La. 149, 29 So. 355. 522, 8 Fed. 839; Baird v. Sheehan, 38. Dulaney v. United Rys. & 38 App. Div. (N. Y.) 7, 56 N. Y. S. Electric Co., 104 Md. 423, 65 Atl. 228; Atcheson v. Mallon, 43 N. Y. 45, 5 St. Ey. Rep. 363. 147; Goodrich v. Houghton, 134 N. 39. Forest City Ry. Co. v. Day, 73 Y. 115, 31 N. E. 516. Ohio St. 83, 76 N. E. 396, 4 St. Ry. Rep. 890. 106 THE FRANCHISE. § 40 or extension of an existing railroad may be constructed and oper- ated under a franchise applied for by one railroad, and, when put in operation, the branch or extension shall, for certain purposes, be deemed to be a part of the road making the application, even though the franchise to construct the branch shall be acquired and the new road operated by another corporation. Whoever may acquire the franchise at the competitive bidding, and whoever may own and operate the branch or extension, it must still bear certain relations to the parent road that inaugurated the proceedings for its construction, and at least one of these relations is the right of the public to a continuous passage over both the main line and the new branch on payment of a single fare. 40 The words " ex- tend " and " extension " are not intended to be used in the statute in their restricted sense of prolongation in a given direction, but rather to enable the railroad company to acquire the right of con- struction, maintenance, and operation of additional roads which might be operated in connection with its existing lines in any direction or upon any street or avenue. 41 But several branches or 40. Beekman v. Third Ave. R. Co., 153 N. Y. 144, 154, 47 N. E. 277. When a municipality has attached to its grant to a, street railroad com- pany of a right of way over its streets a condition that the tracks might be used by any other railroad to which the same should afterward be given, a company to which the right of way is subsequently given may lawfully adopt an extension of its road which will include the tracks of the other company. Hannum v. Media, etc., Co. (Pa. C. P.), 8 Del. Co. Rep. 91. 41. Bohmer v. Haffen, 35 App. Div. (N. Y.) 381, 388, 54 N. Y. S. (88 St. Rep.) 1030; affd., 161 N. Y. 390. And see West Jersey Trac. Co. v. Camden Horse R. Co., 52 N. J. Eq. (7 Dick.) 452, 29 Atl. 333, 1 Am. & Eng. R. Cas. (N. S.) 132; 53 N. J. Eq. (8 Dick.) 163, 35 Atl. 49. In the case last cited it was held that a provision allowing » railroad company to extend its railroad along " any public road or highway extend- ing from " a specified city, did not authorize the company to build on a highway no part of which touched the city, although it was crossed by high- ways leading from the city; nor could ic deviate from its charter route. And see Citizens' St. R. Co. v. Africa, 100 Tenn. 26, 42 S. W. 485; S. Bos- ton R. Co. v. Middlesex R. Co., 121 Mass. 485; Cincinnati v. Cincinnati St. R. Co. (Cin. Super. Ct.), 31 Ohio L. J. 308. A street railroad franchise provided for the construction of an extension of the R. railway to con- nect with the D. railway (the con- nection to be made within two years). Held, that such connection was contemplated as would allow the cars of the R. railway to pass over the tracks of the D. railway. Town- ship of Hamtramck v. Rapid Ry. Co., 122 Mich. 472, 81 N. W. 337. A track running from a railroad situate in the centre of a street to 107 § 40 THE FRANCHISE. extensions cannot be grouped together into one sale of the fran- chise, since the general purpose of the statute would be thereby defeated, and the common council enabled, in most cases, prac- tically to select the purchaser of the right. 42 The fact that the applying corporation consents that the right to use part of its main line to connect the several branches or extensions may also be sold, and the terms of the sale so proposed, does not make the several branches a single extension. 43 In the sale of the franchise the westerly side of the same street and there connecting with another track, has been held not to be a switch, but an extension of the line. Village of Waverly v. Waverly, Sayre & Athens Tr. Co., 132 App. Div. (N. Y.) 561, 116 N. Y. S. 1074. 42. Beekman v. Third Ave. R. Co., 153 N. Y. 144, 154, 47 N. E. 277. In the case cited the court said: " The next question involves the power of the local authorities to ac- cept the proposition of the defendant tc pay into the city treasury, in addition to the percentage of gross receipts prescribed by the statute, a lump sum of $250,000, and to make the payment of that sum a condition of the consent and sale in case the defendant became the purchaser. It is conceded that the defendant was so situated with reference to these proposed branches or extensions of its system that it could afford to pay for the right to construct and operate them a larger sum of money than any other corporation competing with it for the right. But the question is how far such pecuniary considera- tions can be permitted to enter into the execution of a trust or agency confided by the statute to the local authorities for the benefit of the pub- lic. The defendant's ability to pay could find u fair field in bidding up the percentage on gross receipts, but whether it could tempt the local au- thorities by an offer of a. large sum of money to be paid at once into the treasury is quite another question. If the common council could make the payment of such a. sum by the defendant a condition of its consent, it could make it a condition in all cases, and if it could exact the pay- ment of that sum there can be no limit placed upon its power in that regard. The disposition of public franchises would then depend upon the ability of the purchaser to pay, and the party offering the largest sum of money to be paid down would be enabled to shape the route and secure the franchise. This might bring money to the treasury and ad- vantage to the corporation thus pay- ing for the franchise, but at the same time the public convenience and the public interests might have been over- looked, and in many cases probably would be. It is quite clear that there is no authority in the statute for the sale of a franchise for a gross sum of money." Pages 157, 158. Under Conn. Pub. Acts 1893, p. 308, it was held that a condition of the approval by the mayor and com- mon council of a plan for an exten- sion of street railroad tracks for » written acceptance of the " permit " and all its provisions, is unauthor- ized where some of the provisions of the permit were themselves unau- thorized Central Railway & Electric Co.'s Appeal, 67 Conn. 197, 35 Atl. 32. 43. West Jersey Traction Co. y. 108 THE FRANCHISE. § 40 the common council cannot add as a condition that the purchaser must pay a gross sum in cash into the State treasury in addition to the percentage of gross receipts bid, as required by the statute. 44 The consent of the abutting owners is essential to the validity of a franchise for an extension, unless the extension is really neces- sary to the enjoyment of a valid grant made before the constitu- tional or statutory provisions requiring such consents. 45 But the Camden H. R. Co., 52 N. J. Eq. 452, 29 Atl. 333. 44. Beekman v. Third Ave. B. Co., 153 N. Y. 144, 47 N. E. 277. 45. Mt. Auburn Cable Co. v. Neare, 54 Ohio St. 153, 35 Ohio L. J. 61, 42 N. E. 768; People v. Third Ave. B. Co., 45 Barb. (N. Y.) 63; Harrier v. Columbus Street Car E. Co. (C. P.), 29 Ohio L. J. 387. In New York a statute provides for the saving of corporate rights in case of failure to complete road, and for extensions, as follows: " § 186. Corporate rights saved in case of failure to complete road; right to operate branches; conditions; former consents rati- fied; limitations. — The corporate existence of and powers of every street surface railroad corporation, which has completed a railroad upon the greater portion of the route designated in its certificate of incor- poration, within ten years from the date of filing such certificate in the office of the secretary of state, and which has operated such completed portion of its railroad continuously for a period of five years last past, and is now operating the same, shall continue with' like force and effect, as though it had in all respects com- plied with the provisions of law with reference to the time when it should have fully completed its road. Every such corporation shall have the right to operate any extensions and branches of its railroad, now con- structed and operated by it, for a period of ten years last past, with like force and effect, as though the route of such extensions and branches were designated in its certificate of incorporation. But every such street railroad corporation is authorized to operate such railroad and any exten- sions or branches thereof, upon con- dition that it has heretofore, or shall hereafter, obtain the consent of the local authorities having the control of that portion of the streets, avenues or highways included in such rail- road, or any extension or branches thereof, to the construction and oper- ation of the same, and also upon the condition that it has heretofore or shall hereafter first obtain the con- sent of the owners of one-half in value of the property bounded on the portion of the streets, avenues or highways included in the route of such railroad, or any extensions or branches thereof, to the construction and operation of the same, or in case the consent of such property owners cannot be obtained, the appellate di- vision of the supreme court of the department in which such railroad or any extension or branch thereof is located, may, upon application, ap- point three commissioners who shall determine, after a hearing of all the parties interested, whether such rail- road ought to be constructed or oper- ated, and their determination, con- firmed by the court, may be taken in lieu of the consent of the property 109 § 40 THE FEANCHISE. consent of the abutting owners along the main line of the railroad applying for the right to extend is not necessary. 46 Where the extension is not necessary to the enjoyment of a franchise pre- viously granted, then it is subservient to every condition and restriction imposed by statute or ordinance at the time it is proposed. 47 But the consent Of the local authorities to the pro- owners. If any street* surface rail- road corporation shall have made and filed a. statement or statements of proposed extensions or branches em- bracing -a, line from the boundary of a city or village to the boundary of another city or village generally parallel with the route specified in its certificate of incorporation and gen- erally distant not more than one-half mile therefrom, and shall have made and filed an agreement of consolida- tion with some other street surface railroad corporation formed to build a street railroad upon a route con- tinuous or connecting with one or more of the routes described in such statement or statements of proposed extensions or branches, and there- after there shall have been constructed and operated for a period of four years a street surface railroad from such city or village to such other city or village upon a line embraced in any such proposed extensions or branches, such consolidated corpora- tion may relinquish and abandon any unconstructed route or unconstructed portions of route specified in the cer- tificate of incorporation or in any statements of proposed extensions or branches of such first mentioned cor- poration by filing in the office of .the secretary of state a copy of a resolu- tion of the board of directors of such consolidated corporation certified by its president and secretary, declaring such unconstructed route or uncon- structed portions of route relin- quished and abandoned, and there- upon the corporation rights, powers and franchises of such consolidated corporation shall be and continue the same as though the certificate of in- corporation of such constituent cor- poration had specified the constructed and not the unconstructed portion of such route and proposed extensions arid branches. All consents hereto- fore giveri; or grants made by local authorities having the control of the portion of any street, avenue or high- way included in the route of such railroad, or any extensions or branches thereof, to any such street surface railroad corporation, are hereby ratified and confirmed and declared valid. This section shall be applicable to any corporation whose lines are wholly within any towns, cities or villages having less than twenty thousand inhabitants. " This section shall not apply to or affect any railroad corporation in the city of New York; nor any spe- cial grant made to or authority con- ferred upon any street surface rail- road corporation by any law of this state; nor any pending litigation; nor shall it impair existing fights, privi- leges or franchises of any street sur- face railroad corporation. (Laws 1910, ch. 481, formerly as amended by ch. 676 of 1892, and ch. 198 of 1900.)" 46. Broadway & N. St. R. Co. v. Brooklyn St. Ry. Co., 10 W. L. B. 72. 47. City of St. Louis v. Mo. K. Co., 13 Mo. App. 524; Central Cross- town R. Co. v. Metropolitan St. Ry. Co., 17 Misc. Rep. (N. Y.) 716 If 110 THE FRANCHISE. 40 posed extension cannot be compelled by mandamus or otherwise. Authority given in the charter of a company to construct " such branches as may be necessary to connect them with any other rail- way or railways within the city " is to be confined in its operation to railways in existence at the time the charter was granted. 49 Statutory and other requisites to the granting of an application for leave to construct a street railway do not necessarily apply to an application for an extension thereof. 50 But a statute as to the time within which the construction of a street railway line shall be commenced has been held to apply to extensions of a line. 51 And where by statute an exemplication of the record authorizing the extension of a street railway is required to be filed a certain length of time before the construction of the extension, such filing is a condition precedent to a right to construct the same. 52 An the charter of a street railroad com- pany requires the consent of the city council to the extension of its road, and a supplement thereto authorizes the extension without such consent, a second supplement silent as to the consent is subject to the charter re- quirement that the consent be ob- tained. Philadelphia v. Citizens' Pass. R. Co. (Com. PI.), 48 Phila. Leg. Int. 220, 10 Pa. Co. Ct. 16. 48. Silsby v. Lyle, 117 Mich. 327, 75 N. W. 886; People ex rel. W. S. St. R. Co. v. Barnard, 110 N. Y. 548, 18 N. E. 354. 49. People's Pass. Ry. Co. v. Mar- shall St. Pass. Ry. Co., 8 Pa. Co. Ct. 273. 50. State v. Cin. & H., etc., Ry. Co., 19 Ohio C. C. 79, 10 O. C. D. 418; Mayor v. Eighth Ave. R. Co., 7 App. Div. (N. Y.) 85; Mayor v. N. Y. & H. R. Co., 46 St. Rep. (N. Y.) 349; affd., 139 N. Y. 643, 35 N. E. 206. In New Jersey the right of a street railroad company to con- struct an extension depends upon the grant of municipal authority and on the filing by the company of an ac- ceptance of the grant with its re- Ill strictions, if any, in the office of the secretary of state, and delivery of a copy thereof to the clerk of the municipality. Trenton St. Ry. Co. v. Pennsylvania R. Co., 63 N. J. Eq. 276, 49 Atl. 481. Section 59a of the Railroad Law (New York Laws 1902, chap. 226). providing that no extension of a street surface railroad that will be practically parallel with another rail- road already constructed and in operation can be made without a cer- tificate from the Board of Railroad Commissioners as to public conveni- ence and necessity was held not 1o apply where a street surface railroad company incorporated in 1895 filed a statement in 1901 under section 90 for a proposed extension of its line. New York Central & H. R. R. Co. v. Auburn Interurban Elec. R. Co., 178 N. Y. 75, 2 St. Ry. Rep. 762, 70 N. E. 117; affg. 79 App. Div. 645, 80 N. Y. S. 1144. 51. In re Brooklyn, Q. C. & S. R. Co., 185 N. Y. 171, 77 N. E. 994; affg. order 106 App. Div. 240, 4 St. Ry. Rep. 878, 94 N. Y. S. 113. 52. Coatesville & Dowington St. § 40 THE FRANCHISE. extension must be of the same legal nature as that which is ex- tended. Therefore, municipal authorities have no power to extend the tracks o± a corporation organized as a steam railroad company over the streets of a city, the extension to be operated by horse power. 53 A municipal ordinance granting authority to a street railroad to extend its track is not an act conferring corporate power within the constitutional provision against special acts con- ferring corporate powers. 54 And where extensions are authorized over new streets not yet fully laid out and opened there is no necessity for a separate ordinance for each new street to be oc- cupied as such new street is established. 55 "No formal resolution of acceptance of a franchise for a street railroad extension is neces- sary in any case if the facts show an actual, practical acceptance by the company, or action which would be only explicable in case the franchise were accepted ; 56 but before consents can be re- ceived the applying corporation must locate the road along which the extension is proposed to be made. 57 The right to extend, con- ferred by a street railroad charter, is not abandoned by nonuser for twenty years, where the charter contains no time limitation, and there is no public necessity for an earlier extension. 5i Mu- nicipal authorities may grant an extension of seven years upon a street railroad franchise where it has authority to impose a limit of thirty years upon its consent. 59 In a ease, decided in the New Ry. Co. v. Westchester St. Ry. Co., designate a portion of the proposed 200 Pa. St. 40, 1 St. Ry. Rep. 721, 55 route in the alternative, and the grant Atl. 844. by the municipality is not necessarily 53. Cincinnati Inc. P. R. Co. v. invalid because it covers only a part Cincinnati, 52 Ohio St. 609, 44 N. E. of the proposed route, or designates 327. And see S. C, 30 Ohio L. J. the grantee as "trustee." Simmons 321. v. Toledo, 5 Ohio C. C. 524. 54. Simms v. Brooklyn St. R. Co., 58. West Jersey Trac. Co. v. Cam- 37 Ohio St. 556. den H. R. Co., 52 N. J. Eq. 452, 29 55. Africa v. Knoxville, (C. C. E. Atl. 333. D. Tenn.) 70 Fed. 729. 59. Citizens' St. R. Co. v. City R. 56. City R. Co. v. Citizens' St. R. Co., (C. C. D. Ind.) 64 Fed. 647; Co., 166 U. S. 557, 17 S. Ct. 653, 41 affd., 166 U. S. 557, 17 S. Ct. 653, 41 L. ed. 1114. L. ed. 1114. 57. McClean v. Westchester Elec- A statute which permits a street trie Ry. Co., 25 Misc. Rep. (N. Y.) railroad company to extend its tracks 383, 55 N. Y. S. 556. An application through certain streets to be opened, for a street railroad franchise may providing its road be built within a 112 THE FRANCHISE. 41 Jersey Court of Errors and Appeals, it is held that the right of street railway companies, incorporated under the act providing for the incorporation of street railway companies., to construct an extension of its railway depends (1) upon municipal action grant- ing it authority to do so, with such restrictions as the municipal body may deem proper; and (2) the filing by the company of its acceptance of the grant, with its restrictions, in the office of the secretary of state, and the delivery of a copy thereof to the clerk of the municipality. Also that the statutory provision cited em- powers the municipality to grant to a street railway company the right to extend its railway from its legally authorized terminus, but that it does not justify a grant to construct an addition to an extension which has been built without legal warrant. 60 § 41. Extensions — Obligation as to construction. — A street railway company which submits a plan to the municipal authori- ties for the construction of an extension of its line is not bound to build such extension merely because such plan has been ap- proved with certain proper modifications. If, however, it under- takes to build such extension at all it has no right to stop the construction of the same when it has finished a part only and to operate its cars on that part, as it is bound to carry out the con- limited time or as soon as the street in their articles of incorporation, or shall be opened, must be construed to for the extension of the same, shall mean that the road cannot postpone give notice to all parties interested the entire work until the completion (in a specified manner) of the time of the unfinished streets. People v. and place at which they will consider Broadway R. Co. of Brooklyn, 126 N. such application for location; and, Y. 29, 26 Abb. N. C. (N. Y.) 407, 26 after hearing, they shall pass an or- N. E. 961, 36 St. Rep. (N. Y.) 376. dinance refusing such location or ex- 60. Trenton St. Ry. Co. v. Penn. tension, or granting the same or any R. Co., 24 N. J. L. J. 595. The eighth portion thereof, under such lawful section of the act (passed April 6, restrictions as they may deem the in- 1886, as amended March 27, 1889, 3 terests of the public require; and the Gen. Stat. 3220) provides that "the location or extension, thus granted, board of aldermen, common council, shall be deemed and taken to be the or township committee, upon the peti- true location or extension of the tion of the board of directors of any tracks of the railway, if an accept- company incorporated under this act, ance thereof in writing, by the di- or a majority thereof, for a location rectors, shall be filed with the secre- of the tracks of its railway therein, tary of state within thirty days after conformably to the route designated receiving the notice, and a copy there- 8 113 §§ 42, 43 THE FRANCHISE. steuction and operation in accordance with the plan in its entirety. It cannot accept the benefits of a conditional location and escape the burdens incident to a full completion of its obligations. 61 § 42. Extensions — Conditions in franchise. — Under a statute giving a city power to grant the use of streets and bridges to street railway corporations upon such terms as the proper authorities shall determine, the city may grant such a corporation a franchise to extend its lines, then in operation on certain streets, without receiving any money consideration therefor, but in consideration that the company shall charge a reduced fare. The granting of such a franchise is one addressed to the sound discretion of the legislative body of the city and it is declared that while such body may or may not have exercised sound discretion, its action can- not in any proper or reasonable sense be called a squandering of public funds or property merely because it had been offered a con- siderable sum by another corporation for such franchise. 62 Where a franchise granted to a street railway company authorizing it to construct an extension of its line through certain streets and high- ways contained a condition that all rights and franchises hereto- fore and hereafter granted to the company should be void unless the extension was constructed within one year from the acceptance of the franchise, it was held that the condition was a reasonable one, and that upon the failure of the company to construct within the prescribed time the borough was authorized to require the removal of the tracks of the company and the restoration of the streets to the condition in which they were in before the tracks were laid. 63 § 43. Proceedings if property owners do not consent. — In New York, if the requisite abutting property owners upon a street through which the street railroad company desires to construct or extend a street railroad do not consent thereto, application may of delivered to the clerk or other 62. Linden Land Co. v. Milwaukee equivalent officer of the municipality Elec. Ry. & L. Co., 107 Wis. 493, S3 or township." N. W. 851. 61. State ex rel. Waterbury v. 63. Minersville Borough v. Schuyl- New York, N. H. & H. R. Co., 81 kill Electric Ry. Co., 205 Pa. St. 394, Conn. 645, 71 Atl. 942. 1 St. Ry. Rep. 679, 54 Atl. 1050. 114 THE FRANCHISE. § 43 "be made to the Appellate Division of the Supreme Court for the appointment of three commissioners to determine whether such railroad ought to be constructed and operated. 64 Indeed, there is nothing to prevent several applications in regard to particular streets named in the petition, provided such streets are also named in the articles of association, or application for extension, as being streets through which it is proposed to construct, extend, maintain, and operate the railroad. If the proceeding be taken in regard to but one street, or any number of streets less than the 64. The Railroad Law, 1910, chap. 481, reads as follows: " § 174. Proceedings if prop- erty-owners do not consent. — If the consent of property-owners re- quired by any provision of this ar- ticle cannot be obtained, the corpo- ration failing to obtain such consents may apply to any general term of the supreme court held in the department in which it is proposed to construct its road for the appointment of three commissioners to determine whether such railroad ought to be constructed and operated. Notice of such appli- cation must, at least ten days prior thereto, be served, personally, upon each nonconsenting property-owner by delivering the same to the person to whom such property is assessed upon such assessment-roll or by duly mail- ing the same, properly folded and di- rected, to such property-owner at his post-office address with the postage prepaid thereon. If the person upon whom service is to be made is un- known, or his residence and post-office address are unknown and cannot by reasonable diligence be ascertained, service of such notice may be made by publishing the same in such news- paper of the county as the court may direct, at least once a week for two successive weeks. Upon due proof of service of such notice the court to which the application is made shall appoint three disinterested persons, who shall act as commissioners, and who shall, within ten days after their appointment, cause public notice to be given of their first meeting in the manner directed by the court and may adjourn from time to time, until all their business is completed. Vacan- cies may be filled by the court after such notice to parties interested as it may deem proper to be given; and the evidence taken before as well as after the happening of the vacancy shall be deemed to be properly before such commissioners. After a public hearing of all parties interested, the commissioner shall determine whether such railroad ought to be constructed and operated, and shall make a report thereon, together with the evidence taken, to the general term, within sixty days after ap- pointment, unless the court, or a judge thereof, for good cause shown, shall extend such time; and their de- termination that such road ought to be constructed and operated, con- firmed by such court, shall be taken in lieu of the consent of the property- owners hereinbefore required. The commissioners shall each receive ten dollars for each day spent in the per- formance of their duties and their necessary expenses and disbursements, 115 § 43 THE FBANCHISE. total contained in the articles of association, those only who are interested in property along the streets in regard to which the petition is presented, are proper parties. And no determination made by the commissioners appointed in the proceeding can bind or in any manner affect property owners along other streets not mentioned in the petition; and if subsequent proceedings should be taken for the appointment of commissioners to determine as to the construction* of the road through their streets, such owners would have the right to oppose the granting of the petition or the making of the determination by the commissioners, wholly irre- spective of any previous determination made by other commis- sioners in other proceedings in relation to other streets. 65 The application should properly be made on petition modeled somewhat after the form prescribed in condemnation proceedings, although affidavits containing the requisite averments may suffice. The papers upon which application is made must show that the ap- plicant is a street railroad corporation incorporated under the laws of that State, and must contain averments showing compliance with every statutory or other precedent requisite. 66 It will not do to state generally that some of the owners decline to consent, and that consents of others cannot be obtained by reason of their absence, and that application had been made therefor diligently and in good faith. 67 The papers must show just what has been done with reference to obtaining the consents, the names and the amount of the holdings of the persons to whom application to con- sent had been made, and their refusal, and the total amount of the property owned on the street on which the road is proposed to be constructed, so that the court may see and determine from the averments that the requisite consents of abutting owners can- not be obtained. 68 A proceeding to procure the favorable report of commissioners appointed by this court is entirely independent ■which shall be paid by the corpora- 67. Matter of Broadway Und. Ry. tion applying for their appointment. Co., 23 Hun (N. Y.) 693; Matter of (Formerly as amended by chap. 676 Broadway Surface R. Co., 36 Hun of 1892.)" (N. Y.) 644; Matter of N. Y. Cable N .Y W%: f 20 P N P E 9 3*7 .°°* "* *^°Z ^T < N f *> »"■ „ 66. Re Brooklyn City R. Co., 26 68 ' See Matter of Peoples R. Co., App. Div. (N. Y.) 627, 51 N. Y. 112 N. Y. 578, .582, 20 N. E. 367. Supp. 1139. 116 THE FRANCHISE. § 43 of a proceeding to procure the consent of the local authorities, or of the Board of Railroad Commissioners ; and hence it is no de- fense to a motion to confirm the report of commissioners so ap- pointed that the other consents will have to be obtained before the road can be actually constructed. 69 The determination of the com- missioners is not final or self -operative. It must be confirmed by the Appellate Division of the Supreme Court, which has the power and the duty, as a tribunal of original jurisdiction, to review the whole case and to pass upon the sufficiency of the facts and circum- stances to warrant the determination of the commissioners that there ought to be a street railroad in any municipality where there were not in favor of it one-half of the property owners to be affected. 70 This court has power to confirm a report duly made by a majority of the commissioners appointed ; and while it may and should determine for itself whether the facts disclosed to the commissioners are sufficient to justify the granting of the peti- tion, 71 it cannot, in the face of an adverse report, determine that the railroad should be constructed and operated. 72 In fact, the Appellate Division cannot act except to confirm or refuse to con- firm a favorable report, unless the adverse report is impeached for fraud or such irregularity as would deprive the petitioner of a statutory or vested right. 73 The power of the court to appoint implies power to supervise the conduct of the persons appointed, at least to the extent of seeing whether they disobeyed the statute which called them into existence, or acted corruptly, or failed to comply with the order appointing them by publishing and serving the notices specified therein. The commissioners are not ap- pointees of the legislature, but of the court pursuant to the pro- visions of the Constitution, to decide a certain question " after a hearing of all parties interested." They are not a distinct tri- bunal, for they are appointed by the court and report to the court. 69. Re Buffalo Traction Co., 25 60 N. Y. Supp. 160; Re N. Y. Cable App. Div. (N. Y.) 447, 49 N. Y. Supp. Ey. Co., 40 Hun (N. Y.) 1. 1052; affd., 155 N. Y. 700; Colonial 71. Re Port Cheater St. Ry. Co., City T. Co. v. Kingston R. Co., 154 43 App. Div. (N. Y.) 538, 60 N. Y.' N. Y. 493, 48 N. B. 900. Supp. 160. 70. Re Kings Co. El. R. Co., 82 72. Const., art. III., § 18. N. Y. 95, 102; Re Port Chester St. 73. Re Nassau Cable Co., 36 Hun Ry. Co., 43 App. Div. (N. Y.) 536, (N. Y.) 272. 117 § 44 THE FRANCHISE. If they refuse to hear the parties in interest the court can set aside their determination and appoint new commissioners to do what the law requires, in the manner specified, after due notice and an opportunity to be heard. While not bound to strict com- pliance with common-law evidence, or to any particular method of procedure, except as specified by statute, their action is judicial in character and must, to a reasonable extent, conform to judicial methods, for by command of the Constitution a " hearing " is to be had and a " determination " made. A substantial departure from what is fairly to be implied from the use of the words " hear- ing " and " determination " in the fundamental law authorizes the court which appointed the commissioners to set aside their action and proceed anew. If, for instance, they state in their report that their only reason for deciding that the road ought not to be built was some fact, utterly immaterial, or if they show con- clusively that, they exercised powers they did not possess, or failed to exercise the powers they did possess, because they thought the law withheld them, it is clear that their decision would not be a determination within the intent of the law. If, through miscon- duct, palpable error, or accident they fail to make such a report as the law contemplates, it is the duty of the Appellate Division, upon proper application, to set their report aside and appoint other commissioners, or remit the matter to the same commissioners with proper instructions. Unless the appointees of the court keep within the law, as well as its own order, it necessarily has power to interfere, not by way of review as upon appeal or certiorari, but in the exercise of original jurisdiction flowing from the power to appoint, as otherwise the object of the appointment would be defeated by the misconduct of the commissioners. 74 § 44. Proceeding without consent — How prevented. — Without the statutory consents the street railroad company has no right to commence the construction of its road in the street as to which the consents are withheld ; and any abutting property owner in that street, owning to the center thereof, can maintain an equitable action to restrain such construction, and need not prove special 74. Matter of Nassau El. R. Co., 6 App. Div. (N. T.) 141, 40 N. Y. 167 N. Y. 37-40, 60 N. E. 279; revg. Supp. 334. 118 THE FRANCHISE. § 44 damage ; 75 but where his property is bounded by the exterior line of the street and he does not own the fee of any part of the street, he is not entitled to enjoin the maintenance and operation of the railroad in the absence of proof that he has suffered special dam- age therefrom. 76 Citizens and taxpayers who are not owners of abutting property cannot maintain an action. 77 In Illinois, the construction of an unauthorized road may be prevented by injunc- tion on information filed by the attorney-general. 78 In any case laches or acquiescence may be a defense to the action. 79 It is tice obtained did it appear that the plaintiff protested against trying the question of damages before the court and taking the alternative judgment; and also, that in every case, except that of Story v. The N. Y. Elev. R. Co., 90 N. Y. 122, the railroad was already in operation. 76. Black v. Brooklyn Heights R. Co., 32 App. Div. (N. Y.) 468, 53 N. Y. Supp. 312. 77. Harrison v. Mt. Auburn Cable Ry. Co., 17 W. L. B. 265; Knorr v. Miller, 5 0. C. C. 609; Simmons v. Toledo, 5 0. C. C. 124. 78. Hunt, Attorney-General, v. Chi- cago, H. & D. Ry. Co., 121 111. 638, 13 N. E. 176. And see People, West Side St. R. Co. v. Barnard, 110 N. Y. 548, 18 N. E. 354. 79. Paterson, etc., Ry. Co. v. Mayer, 24 N. J. Eq. 158; Ferguson v. Covington & C. El. R. & Transfer & Bridge Co., 108 Ky. 662, 57 S. W. 460. Although road was constructed under order of court on failure to procure sufficient consents of abutting owners, yet one who did not sign consent cannot maintain action ^o prevent operation of road. Heiinburg v. Manhattan Ry. Co., 162 N. Y. 352, 56 N. E. 899. And see Bellew v. New York, W. & C. Traction Co., 47 App. Div. (N. Y.) 447, 62 N. Y. Supp. 242; Detwiler v. Toledo El. St. R. Co., 6 Ohio N. P. 485, 8 Ohio S. & C. P. Dec. 166. 75. McClean v. The Westchester El. Ry. Co., 25 Misc. Rep. (N. Y.) 383; Re Cortland, etc., R. Co., 31 Hun (N. Y.) 72; Roberts v. Easton, 19 Ohio St. 73; Wiggins Ferry Co. v. E. St. Louis Ry. Co., 107 111. 450; Peck v. Schenectady R. Co., 67 App. Div. (N. Y.) 359, 73 N. Y. Supp. 794. In the case last cited, it was held that where a railway company pro- cures the consent of the necessary local authorities, but not of one-half the abutting owners, and thereupon obtains the appointment of commis- sioners to determine whether the road should be constructed, and threatens after such commissioners have re- ported in favor of the construction of the road and their report shall have been confirmed by the appellate division, to begin the construction of the road, an abutting owner having title to the fee of the street may have an injunction; and the court will not, against his protest, assess the dam- ages which he will sustain by reason of the construction of the road and grant an alternative judgment such as is usual in the elevated railroad cases, nor will it deny the abutting owner relief upon the railway com- pany giving adequate security for the payment of any compensation which may be found due to him by reason of the appropriation of his land. The court said that in none of the elevated road cases where such prac- 119 § 45 THE FRANCHISE. incumbent upon the plaintiff to prove upon the trial that the requisite consents have not been obtained. 80 If, however, a tem- porary injunction be granted during the pendency of the action, upon sufficient papers, the defendant, to set it aside, being charged with the duty of obtaining these consents, must be presumed to be possessed of knowledge and of the consents which gave it the right to construct the railroad in the street and has the burden of proving its consents. 81 The owner of the fee, however, to the center of the street, who has not consented to the construction and operation of the road as required by statute, while he may bring his action to recover damages for the taking of his property, can- not restrain the railroad company from constructing and operating its road along the street, provided the statutory consents of a suffi- cient number of property owners have been given. 82 § 45. When consents may be presumed. — Consent, at least as to private persons, if not as to the municipality itself, may be by ratification as well as by previous permission, and after five years' operation, certainly as against a private person complaining, a trolley line must be presumed to have been rightfully on the street, and therefore not a public nuisance. 83 And where tracks 80. O'Brien v. The Buffalo Trac- proved, had been recorded pursuant tion Co., 31 App. Div. (N. Y.) 632, to the statute. It was held that the 52 N. Y. Supp. 322. And see Matter burden of proving that such consents of Buffalo Traction Co., 25 App. Div. were ineffective was upon the plain- (N. Y.) 447, 49 N. Y. S. 1052; affd., tiff, and was not shifted by the fact 155 N. Y. 700, 50 N E. 1115. that in an application made under 81. Dusenberry v. New York, W. the provisions of the Constitution and & C. Traction Co., 46 App. Div. (N. section 94 of the Railroad Law for Y.) 267, 61 N. Y. Supp. 420. the appointment of commissioners to 82. Adee v. Nassau Electric R. Co., determine whether the railroad should 65 App. Div. (N. Y.) 529, 72 N. Y. be constructed upon the street, the Supp. 992. In the case cited the com- company had alleged that it was un- plaint alleged that the requisite able to secure the necessary consents, statutory consents had not been ob- if it appear that since the commence- tained. The railroad company an- ment of that proceeding the railroad swered denying this allegation and company had succeeded to the rights furnishing a bill of particulars show- of another company which also had ing that the necessary number of al- procured a number of consents for the leged consents, reciting ownership in construction of a. street surface rail- the individuals giving them, made in road upon the street in question, the usual form and acknowledged or 83. Potter v. Scranton Traction 120 THE FRANCHISE. § 45 have been located on the side or in the center of a street for a long time the proper authorities will be presumed to have consented to such location. 84 But in a recent case in Michigan it is decided that though a license may be implied from the acquiescence of a private person, who stands by and sees without protest his land used for a railway, the same cannot be said of township officers who have no authority except such as the statute gives and con- sequently a township is not estopped from obtaining relief because of the acquiescence merely of its officers in the building and main- tenance of a street railway, the consent of such township not having been obtained. 85 Unless property rights are invaded, the usurpation of a franchise is a matter only between the State and the company. 86 Co., 6 Am. Electl. Cas. 95, 176 Pa. 85. Bangor Township v. Bay City St. 271, 4 Am. & Eng. R. Cas. (ST. Traction & EI. Co., 147 Mich. 165, 5 S.) 307, 35 Atl. 188, 38 W. N. C. St. Ey. Rep. 499, 110 N. W. 490. 453 ; Pennsylvania S. V. R. Co. v. 86. Nichols v. Ann Arbor & Y. St. Philadelphia & R. R. Co., 160 Pa. St. R. Co., 87 Mich. 361, 6 L. R. A. 371, 277, 28 Atl. 784. 49 N. W. 538, 50 Am. & Eng. R. Cas. 84. Twaddell v. Chester Traction 250. Co., (C. P.) 6 Del. Co. Rep. 399. 121 § 46 THE FBANCHISE CONTINUED CONDITIONS. CHAPTER III. The Franchise Continued: Conditions; Limitations; Rights. Section 46. Conditions imposed with consents — Generally — Rights of the grantee end of the public thereunder. 47. Conditions imposed — As to reasonableness of. 48. Conditions imposed — That ultra vires no defense. 49. Conditions imposed — Impossibility of performance. 50. Conditions imposed — Time of completion of l road. 51. Conditions imposed — Filing applications — Specifications. 52. Conditions imposed — rates of fare. 53. Conditions imposed — Transfers. 54. Conditions imposed — As to paving — Grading. 55. Conditions imposed — As to tracks — Switches. 56. Other particular conditions. 57. Acceptance of franchise. 58. Rights under franchise — Generally. 59. Rights under franchise — Implied powers. 60. Rights under franchise — How and by whom questioned. 61. Conflicting grants or franchises. 62. Sale or lease of franchise or property. 63. Sale or lease — Under statutes. 64. Sale or lease — Validity of. 65. Sale or lease — Rights and duties under. 66. Sale or lease — Fraud on stockholder — Action to enjoin. 67. Sale by receiver — Statute as to — Rails personal property. 68. As to mortgages. 69. Sale or lease — Rights of mortgagee. 70. Abandonment or revocation of franchise. 71. Expiration of franchise and renewal. 72. Forfeiture. 73. Forfeiture — How waived. 74. Forfeiture — Whether clause as to is self-exacuting. 75. Forfeiture — Who may raise question of. 76. When specific performance of contract for mutual co-operation in securing franchise will be refused. § 46. Conditions imposed with consents — Generally — Rights of the grantee and of the public thereunder. — Where a franchise is granted by an , ordinance and accepted by the company, the ac- ceptance of the privileges conferred thereby carries with it the acceptance of the burdens imposed. Obligations in the nature of 122 THE FRANCHISE CONTINUED CONDITIONS. § 46 a contract are created and the doctrine applies that one who takes the benefits secured to him by contract cannot refuse to comply with the obligations imposed upon him thereby. A company seeking a franchise may accept the one granted or not, as it chooses, and if it accepts it the franchise is taken subject to the conditions imposed. 1 The franchise granted to the street surface railroad company and accepted by it constitutes a contract. Therefore every condition imposed by the abutting property owners or the " local authorities," which does not nullify or modify limitations and restrictions already imposed by law in favor of the public, and which imposes upon the grantee still greater restrictions and limitations for the public advantage, must be strictly complied with. Their power to grant or withhold con- sent to the construction of street railroads is generally absolute and they may impose any conditions, however onerous or difficult to perform, which do not limit or restrict the rights of the public, as the terms upon which their consent will be given. If the terms imposed by abutting property owners are unreasonable, the com- pany may proceed as if their consent were refused. If, however, it choose to act upon such consents it must comply with the terms of its contract. 2 It is a general rule that grants of privileges to 1. Cincinnati L. & A. Electric St. (N. Y.) 521, 3 St. Ry. Rep. 707, 91 R. Co. v. Stahle, 37 Ind. App. 539, N. Y. Supp. 87. 76 N. E. 551, 77 N. E. 363, 4 St. Ry. 2. United States. — Louisville Rep. 266 ; Indianapolis & Eastern Ry. Trust Co. v. Cincinnati, 73 Fed. 716. Co. v. Town of New Castle, 43 Ind. Connecticut. — Central R. E. Co.'s App. 467, 87 N. E. 1067; City of Appeal, 67 Conn. 197, 35 Atl. 32. New York v. New York City Ry. Co., Illinois. — People v. Chicago W. 193 N. Y. 543, 86 N. E. 565; City of Div. Ry. Co., 118 111. 113, 7 N. E. New York v. New York City Ry. Co., 116. 117 N. Y. S. 919; Hattersly v. Vil- New York. — People ex rel. W S. lage of Waterville, 26 Ohio Cir. Ct. St. Ry. Co. v. Barnard, 110 N Y. 226. 548, 18 N. E. 354; Gaedelse v. Staten See also cases cited in following Island & M. R. Co., 43 App. Div. note. (N. Y.) 514, 60 N. Y. Supp. 598. An ordinance granting a franchise Pennsylvania. — Loyalsock Town- constitutes a contract between the ship v. M. T. R. Co., 7 Pa. Dist. 291; municipality and the company, from Borough of Shamokin v. S. M. C. El. the terms and conditions of which Co., 196 Pa. St. 166, 46 Atl. 382; neither can depart without the con- Perkiomen R. Co. v. Collegeville El. sent of the other. City of Rochester St. Ry. Co., 14 Mont. Co. L. Rep. 13. v. Rochester Ry. Co., 98 App. Div. Where an ordinance is passed 123 § 46 THE FRANCHISE CONTINUED ■ CONDITIONS. street railway companies by municipal corporations should be strictly construed against the grantee. 3 But though street railway franchises are to be strictly construed, yet when the intention of the parties is clear, that intention should be given effect. What the parties, expressly or by necessary implication, contract to give or to do, they must be compelled to give or to do. 4 The franchise carries with it not only the rights and conditions expressed, but those also which are^neeessarily to be implied, that is to say, those which are not simply convenient, but indispensable. 5 It is, how- ever, a well-settled principle that no implication will be indulged in derogation of the rights of the public, in the absence of express or plain terms of grant. An intention to grant an exclusive priv- granting to a company the right to use city streets for railway purposes upon conditions affecting the opera- tion of the road, for its proper con- struction and requiring it to keep the streets and tracks in proper re- pair, the city cannot reserve the legal right to repeal such ordinance on the failure of the company to comply with such conditions, on its own ad- judication without applying to the courts. Citizens' H. R. Co. v. Belle- ville, 47 111. App. 388. The council of a city may refuse permission to a street railroad company to construct its road in its streets ; but if it grants permission it may not do so upon the condition that the company does not exercise one of its corporate powers, and therefore a condition or regulation that the company shall not carry freight is void. State v. Dayton Traction Co., 18 Ohio C. C. 490, 10 0. C. D. 212. And see Mont- elair Military Academy v. New Jer- sey St. Ry. Co., 65 N. J. L. 328, 47 Atl. 890. 3. Cleveland Electric Ey. Co. v. Cleveland, 204 U. S. 116, 27 Sup. Ct. 102, 51 L. ed. 399, 5 St. Ry. Eep. 810; Central Trust Co. v. Municipal Traction Co., 169 Fed. 308; Longe- necker v. Wichita R. E. & L. Co., 80 Kan. 413, 102 Pac. 492; West Bloom- field Township v. Detroit United Ey., 146 Mich. 198, 5 St. Ey. Eep. 515, 109 N. W. 258; Kavanaugh v. St. Louis, 220 Mo. 496, 119 S. W. 552. 4. Houghton County St. Ry. Co. v. Common Council of Village of Laurium, 135 Mich. 614, 2 St. Ry. Eep. 487 98 N. W. 393. 5. Detroit Citizens' E. Co. v. De- troit R. Co., 171 U. S. 48, 18 S. Ct. 732, 43 L. ed. 67. A street railroad company which has accepted a fran- chise from a city and has laid its road in the streets in accordance therewith cannot arbitrarily discon- tinue the operation of any part of such road to the detriment of the city and its inhabitants, as an im- plied condition attaches to the grant that it be held for public benefit. Nor can it avoid its duty to operate a portion of its road, because it has rightfully or wrongfully been ex- cluded from a county bridge sepa- rating such portion from the rest of the road until it will comply with certain conditions, where it is prac- ticable to operate both portions of the road without crossing the bridge. 124 THE FRANCHISE CONTINUED CONDITIONS. § 46 ilege or monopoly will not be implied, nor -will a grant of priv- ileges be given scope and effect, in restriction of public right, beyond what tbe plain words employed require. This is an estab- lished principle applicable in the construction of grants by the State, and it is equally applicable in the construction of grants or privileges by a municipal corporation affecting public rights. 6 As illustrating these principles, a provision of the franchise giving the railroad company the privilege of laying all necessary sidings, connections, and switches for the proper working and accommoda- tion of the railroad in specified streets does not justify a substan- tial addition to its road which is not a mere adjunct of its author- ized line. 7 Because the ordinance imposes certain terms accepted by the company as consideration, the company is not relieved from liability for license fees imposed upon electrical poles and wires as a police regulation. 8 Again, where the company is authorized State, Bridgeton v. Bridgeton & M. Traction Co. (N. J. Sup.), 62 N. J. L 592, 45 L. E. A. 837, 43 Atl. 715. 6. North Baltimore Pass. By. Co. v. North Ave. By. Co., 4 Am. Electl. Cas. 1, 9, 75 Md. 233, 23 Atl. 466; Omaha H. By. Co. v. Cable Tramway Co., 30 Fed. 324; Sioux City St. By. Co. v. Sioux City, 138 U. S. 98, 107, 134 L. ed. 898; Junction Pass. By. Co. v. Williamsport Pass. Co., 154 Pa. St. 116, 32 W. N. C. 152, 26 Atl. 295. A street railroad company has no exclusive right to the use of the street covered by its tracks, except where the necessities of its operation require that such rights should be conceded it. Edgerton v. O'Neill, 4 Kan. App. 73, 46 Pac. 206. No power ip conferred upon cities by Ohio Eev. St., § 3438, to authorize street rail- way companies to extend their roads ever State or county roads under supervision of the county commis- sioners, without condemnation or an agreement with the commissioners, but only to grant such right subject to the obligation of making such agree- ment or instituting such proceedings. Citizens' Electric B. Co. v. County Com'rs, 56 Ohio St. 1, 37 Ohio L. J. 165, 46 N. E. 60. An ordinance granting the right to operate a rail- road in certain streets by electricity or such other power as will not neces- sarily obstruct the public use of the streets confers no right independently of the city's consent or its effect upon other public uses of the streets to use steam as a motive power. Mayor, etc., of City of Houston v. Houston Belt & M. P. Co., 84 Tex. 581, 19 S. W. 786; Hamilton & L. E. T. Co. v. Hamilton (Ohio C. P.), 1 Ohio N. P. 366. 7. Central Crosstown E. Co. v. Metropolitan St. E. Co., 17 Misc. Eep. (N. Y.) 716, 40 N. Y. Supp. 1095. But a contract between a municipality and a railroad company, authorizing the use of streets for the construc- tion of a single railway track, au- thorizes the necessary switches to en- able the running of cars in both di- rections. Wilkes-Barre v. Coalville Pass. Ey. Co., (C.P.Pa.) 8 Kulp298. 8. McKeesport v. Citizens' Pass. E. Co., 2 Super. Ct. (Pa.) 249. 125 § 46 THE FBANCHISE CONTINUED CONDITIONS. to operate a street car system in connection with which it main- tains a car barn fronting on one street with its sides abutting on others, it is entitled to bring in and take out its cars over tracks upon the side streets, although such right is not expressly granted in the ordinance. 9 And where a franchise authorized the con- struction of a street railway in a certain county through the streets of certain named villages, it was construed as authorizing the company to make a Necessary connection on a street of one of the villages named with a branch line built through one of the other villages. 10 Under authority to construct " a horse railroad track or tracks " the railroad may be operated by electricity ; and where it is authorized to operate by any motive power it may deem ex- pedient and proper, it is not confined to the animal and steam power known or in practical use at the time of the grant, but it may use the electriqal trolley system. 11 Mandamus will issue to compel the performance of the obligations imposed upon a street railway company by the franchise which it has accepted and is acting under. 12 But the observance of the conditions imposed by the local authorities when granting the franchise can only be en- forced by the local authorities 1 , unless it be a matter of such public concern that any citizen, in the interest of the public, may compel it. 13 The federal court has jurisdiction to grant relief by injunc- tion in case an ordinance relating to street railways impairs an 9. Romer v. St. Paul City R. Co., An exclusive legislative grant of 75 Minn. 211, 77 N. W. 825. a right to build, erect, and operate 10. Houghton County St. Ry. Co. horse railways does not apply to a. v. Common Council of Village of cable tramway. Omaha H. R. Co. v. Laurium, 135 Mich. 614, 2 St. Ry. Cable Tramway Co., 30 Fed. 324. Rep. 487, 98 N". W. 393. 12. People ex rel. Jackson v. Sub- 11. Paterson Ry. Co. v. Grundy, urban R. Co., 178 111. 594, 53 N. E. 4 Am. Electl. Cas. 173, 51 N. J. Eq. 349; Oklahoma City v. Oklahoma Ry. 231, 26 Atl. 788. And see Hudson Co., 20 Okla. 1, 93 Pac. 48, 6 St. Ry. R. Tel. Co. v. Watervliet Tp. & Ry. Rep. 257, citing Merrill on Man- Co., 135 N. Y. 393, 17 L. R. A. 674, damus, § 27. 48 St. Rep. (N. Y.) 417, 31 Am. R. 13. So held where the ordinance & Corp. Rep. 619, 32 N. E. 148; declared that the franchise should Lockhart v. Craig St. R. Co., 139 not authorize any other company to Pa. St. 419, 47 Am. & Eng. R. Cas. use it. Chicago & S. S. R. T. R. Co. 57, 21 Atl. 26, 9 R. & Corp. L. J. 183. v. Northern Trust Co., 90 111. App. 460. 126 THE FRANCHISE CONTINUED CONDITIONS. 47 existing contract right or practically constitutes the taking of property without due process of law. 14 § 47. Conditions imposed — As to reasonableness of. — The reasonableness of an ordinance imposing conditions in connection with the granting of a franchise, aside from contract relation to it, depends upon varying conditions, and, inasmuch as the primary duty of society is to protect the individual who has, by becoming a party to the social compact, deprived himself of the right of self- protection by the strong arm, an ordinance enacted in the dis- charge of such duty, so imposed, by municipalities whose officers are familiar with the conditions existing, will not be interfered with by the courts except for good cause shown. In the applica- tion of this doctrine an ordinance limiting the speed of an electric street car to six miles an hour between crossings and to four miles an hour at crossings was held not to be unreasonable. 15 And where a franchise which is granted, subject to certain conditions, is accepted by the company, it is held to be estopped to subse- quently claim that the conditions imposed are unreasonable. 16 The question whether restrictions contained in an ordinance granting a franchise are reasonable has been held in New Jersey to be one of fact, with the burden of proof upon the party claim- ing that they are unreasonable to establish such claim. 17 14. Cleveland City Ry. Co. v. City oent for transfers to other cars in of Cleveland (C. C. N. D. Ed.)., 12 order to permit passengers to ride O. C. D. 635, 47 0. L. B. 635. In over the two lines for one fare. It the case cited it appeared that the was held that such limitation oper- city had granted to several compa- ated to repeal the provisions in the niea street railway franchises with original franchises authorizing the jeservations of the right to subse- city to regulate the rates of fare, quently regulate rates of fare; but and that an ordinance requiring the afterward, without such reservation, consolidated companies to reduce rates granted additional rights for exten- was unconstitutional, since it im- sions, additional tracks, etc., with paired the obligation of the con- new conditions as to paving and in- tracts. rreased service, and provided that 15. Cincinnati L. & A. Electric St. hut one fare should be charged be- R. Co. v. Stahle, 37 Ind. App. 539, twten certain points. Such compa- 76 N. E. 551, 77 N. E. 363, 4 St. Ry. nies were consolidated subsequently Rep. 266. with other lines, in whose franchises 16. In re Topping Ave., 187 Mo. no reservation as to fare was made, 164, 86 S. W. 190, 3 St. Ry. Rep. 467. into two large systems the city eon- 17. Mayor of Borough of Ruther- senting and providing in their con- ford v. Hudson River Traction Co., 127 §§ 48, 49 THE FRANCHISE CONTINUED CONDITIONS. § 48. Conditions imposed — That ultra vires no defense. — Where an ordinance granting a location of street railway tracks has been carried into effect by the construction, maintenance, and operation of the street railway, the traction company, while re- taining and enjoying the privileges and franchises granted by the ordinance, cannot resist the claim of the municipality for enforce- ment of the restrictions on the plea that the ordinance was ultra vires the municipal corporation. 18 And where the ordinance granting a franchise or location for street railway tracks contains conditions or restrictions to be observed and performed by the grantee, such conditions or restrictions are obligatory upon a subsequent purchaser of the street railway tracks and franchises, even though they are not expressly assumed. A covenant which enters into the consideration of a- grant is a condition annexed to the enjoyment of its benefits, and in case of such conditions or restrictions it is immaterial whether they were expressly assumed by the assignee. 19 § 49. Conditions imposed — Impossibility of performance. — It is a general rule that if a party to a contract makes an uncon- ditional promise the risk of performance is 1 assumed by him. It is his duty to inform himself at the time of making the promise as to the possibility of performance and if he neglects to do so he acts at his peril and therefore cannot set up the fact as a defense to an action for breach of his contract that performance was im- possible. This doctrine has been applied in the case of a contract by a street railway company with a borough by which the former agreed to construct its line in a certain manner, as where the com- pany agreed to construct its line in a certain highway and to grade and fill in the same with broken stone, which agreement it entirely failed to perform. It appeared that the width of the high- way for several hundred feet was only about eleven feet and the company contended that on this account the construction of the 73 N. J. L. 227, 63 Atl. 84, 4 St. Ry. 19. Mayor of Borough of Ruther- Rep. 719. ford v. Hudson River Traction Co., 18. Mayor of Borough of Ruther- 73 N. J. L. 227, 63 Atl. 84, 4 St. Ry. ford v. Hudson River Traction Co., Rep. 719. 73 N. J. L. 227, 4 St. Ry. Rep. 719, 63 Atl. 84. 128 THE FRANCHISE CONTINUED CONDITIONS. § 49 railway therein was impossible. In an action upon a bond given by the company to secure the performance of its agreement, it was held that the alleged impossibility of construction was no defense ; that the conditions of the street were such that by the securing of additional space by a purchase from abutting owners the company could construct its railway and that it was its duty to avail itself of such opportunity. 20 But where in granting a franchise a munici- pality reserves the right to compel the performance of an act by the company, the obligation, though valid and binding, may be re- garded as a part of a condition subsequent performance of which is excused by the impossibility thereof. Thus it was so held where a city granted a street railway company the right to lay its tracks upon the south side of a highway, such consent being sub- ject to a reservation of the right to require the company " at any time to remove its tracks from the side of said road to the center thereof." After the company had operated its road over three years the city directed it to so remove the tracks and upon its failure to do so a bill was filed for a mandatory injunction to compel the removal. The court, however, held that the obligation was part of a condition subsequent and that failure to perform was excused by the fact that the company was unable to secure the consents of property owners on the north side of the street to the change of location. 21 20. Montooth Borough v. Browns- out regard to any agreement the ville Avenue St. Ry. Co., 206 Pa. St. township and the company might 338, 1 St. Ry. Rep. 753, 55 Atl. 1036. make; and, had the company failed 21. Millcreek Tp. v. Erie Rapid to obtain such consent, its grant Transit St. Ry. Co., 216 Pa. St. 132, would not have been available, for 64 Atl. 901, 5 St. Ry. Rep. 818, where- failure of performance of a condition in the court said: "It is conceded precedent, even by reason of its im- that the franchise to build the road possibility, defeats the grant. But could not be exercised until the con- in the present case the condition was sent of the township authorities had performed, the consent obtained, and been obtained, and that such con the road constructed and operated for sent, having been given on condition, more than three years, in compliance was ineffectual without performance with all the legal requirements. The of the precedent condition. The con- obligation to move the tracks to the sent of the abutting landowners on middle of the road, though valid and the south side of the highway was binding, was part of a condition sub- also a legal prerequisite to the loca- sequent, as to which the rule is dif- tion of the tracks on that side with- ferent. Impossibility excuses failure 9 129 § 50 THE FKANCHISE CONTINUED CONDITIONS. § 50. Conditions precedent — Time of completion of road. — The time of the creation of the contract so far as the vesting of the rights in the company is concerned, may be subject to the per- formance of certain conditions precedent by the company. 22 So the time for constructing the road may be limited. 23 Where a municipal corporation has granted to a street railway company a right to lay its tracks, but requiring it to have its railway in operation within a certain time, such grant is a mere license to lay, maintain, and operate such railway upon the conditions named in the ordinance and should be construed most strongly against the grantee. 24 And where a franchise granted by a town- ship contained a clause that if the road was not built within a certain time all rights thereunder would be null and void, it was held that no action on the part of the township to complete the forfeiture was required where the road was not built in the time stipulated. 25 And where an ordinance provided that the time of any delay, by reason of an injunction, should not be reckoned as a part of the time within which such railway should be in operation, and an injunction was subsequently granted, restrain- ing the building of its tracks in a territory exceedingly small as of performance, and defendant has set of a street railroad upon its streets, up a legal impossibility in the refusal where its consent is not made neces- of the property owners to consent and sary for such construction. Philadel- the absence of any legal means of phia v. Empire Pass. R. Co., 177 Pa. compelling consent. The learned St. 382, 35 Atl. 721. And see Whit- judge below made a careful decree ing v. Village of New Baltimore, 127 enjoining the performance of certain Mich. 66, 86 N. W. 403, 8 Det. Leg. car service prayed for, and ordering N. 236. the defendant to remove its tracks 24. Blocki v. People ex rel. South from the south side to the center of Chicago City Ry. Co., 220 111. 444, 77 the road, ' as soon as it may lawfully N. E. 172, 4 St. Ry. Rep. 176, holding' be done.' This was all that the ap- that upon a proceeding by such a pellants were entitled to ask." railway company to obtain a writ of 22. Wheeling & E. G. R. Co. v. mandamus, where the petition showed Town of Triadelphia, 58 W. Va. 487, that the time specified in the ordi- 52 S. E. 499. nance had expired, it was the duty 23. Dusenberry v. New York, W. of such company before it was en- & C. Traction Co., 46 App. Div. (N. titled to such writ to allege such a Y.) 267, 61 N. Y. Supp. 420 ; Hutchin- state of facts as excused the delay son v. Borough of Belmar, 62 N. J. L. in not building within the time speci- 450, 45 Atl. 1092. But a city can tied. impose no terms on the construction 25. Mill Creek Township v. Erie 130 THE FBANCHISE CONTINUED CONDITIONS. § 51 compared with the -whole territory covered by the ordinance, it was decided that there was no valid reason why the injunction should have interfered with the work on an avenue not covered by such injunction, where the lines could have been built and operated without any delay or inconvenience therefrom and that in proceedings for a writ of mandamus it was not a sufficient excuse for failure to construct the tracks on such avenue within the time limited to allege that the territory covered by the ordi- nance constituted a single system, and that the work had been delayed by such injunction. 26 § 51. Conditions imposed — Filing applications — Specifications. — Though a street railway company may have a franchise, as a result of a compliance with a general law and the obtaining of the consent of the electors of a city to construct and operate a street railway within the corporate limits, yet this will not prevent the city from passing and enforcing an ordinance requiring such com- panies and other corporations holding street franchises to file an application for a permit before entering upon and obstructing the streets, to file specifications of the manner in which the work is to be constructed, to fix the location of the line, and to give a bond to hold the city harmless for damages caused by the proposed work. And such an ordinance is not invalid as an interference with franchise rights notwithstanding it gives the city authorities power to grant or refuse the permit, as it will be presumed that the discretion conferred upon such authorities in their action will not be arbitrarily exercised or abused. And it is said that if it should be so exercised the courts will afford a remedy. 27 A stat- Rapid Transit St. Ry. Co., 209 Pa. both surface and subsurface construc- St. 300, 58 Atl. 613, 3 St. Ry. Rep. tion in the streets of the city, so that 769. the exact location of street railway 26. Blocki v. People ex rel. South tracks and of gas mains, and other Chicago City Ry. Co., 220 111. 444, 4 underground construction may be.pre- St. Ry. Rep. 176, 77 N. E. 172. served of record for the use and bene- 27. State ex rel. Lincoln Traction fit of the city authorities. It needs Co. v. Frost, 78 Neb. 325, 110 N. W. no argument to show that such a rec- 986, 5 St. Ry. Rep. 692. The court ord is not only useful, but well nigh said : " It would seem that the ob- essential, for the proper control and ject of this enactment is to procure regulation of the use of the streets and provide a permanent record of of a modern city. * * * In a wide 131 § 52 THE FKANCHISE CONTINUED CONDITIONS. lite requiring notice of an application for a street railway fran- chise to be " given by publication for thirty days in some news- paper of general circulation," published in a county or city, is sufficiently complied with by publication in the successive issues of a weekly newspaper through the period of time named. 28 § 52. Conditions imposed — Rates of fare. — In the exercise of the power to impose conditions rates of fare may be controlled. 29 street the construction of » street railway with double tracks might be both reasonable and proper, while in a narrow street the construction and operation of more than one line of track might make the street practi- cally useless for ordinary traffic. It is highly proper, therefore, that be- fore a street railway company enters upon the construction of its railroad in a street, it submit the location of its proposed line of road, together with the specifications and descrip- tions of materials proposed to be used, to the city authorities, to the end that it may be constructed with due and proper regard to the inter- ests of the community in general and with proper regard for public safety and convenience. In this discussion we have assumed that the purpose of the city in the passage of the ordi- nance is what it appears to be upon the face of the enactment. The court will not presume that the city au- thorities intend to act arbitrarily and without due and proper regard for the rights and franchise of the relator. It is said that the terms of the ordinance permit the council to grant or refuse a permit, and that the whole matter of whether the re- lator may enter upon a street or not is left to the uncontrolled judgment of the city council; but this, we think, does not follow, and if it should ever happen that the city au- thorities acted not in good faith, but arbitrarily and by an abuse of their discretion, and refused to permit the relator to construct and operate its line upon a street over which it was licensed to operate, the courts would afford a remedy." Per Letton, J. 28. City of Benwood v. Wheeling Ry. Co., 53 W. Va. 465, 1 St. Ry. Rep. 808, 44 S. E. 271. 29. Gaedeke v. S. I. & M. R. Co., 46 App. Div. (N. Y.) 220, 61 ST. Y. Supp. 290; S. C, 43 App. Div. (N. Y.) 521, 60 N. Y. Supp. 598. Rates of fare so controlled cannot be subsequently modified by the municipal corporation, unless such power is reserved in the ordi- nance. Cleveland City Ry. Co. v. City of Cleveland (C. C. N. D. Ed.), 12 0. C. D. 635, 47 O. L. B. 635. In New York it is decided that the commissioners of highways have power to impose conditions as to fares in granting consent. Gaedeke v. Staten Island Midland R. Co., 43 App. Div. (N. Y.) 514, 60 N. Y. Supp. 598. Parties to bill to enjoin ex- cessive fare. — Where a condition upon which a franchise is granted is that the company shall not charge a fare exceeding a, certain amount, and after the road is constructed a fare in excess thereof is charged, it is de- cided that the owners of property ad- joining the highway who had no con- tract with the company as to the rate of fare are not proper parties to a 132 THE FRANCHISE CONTINUED CONDITIONS. § 52 A franchise constitutes a contract and provisions therein as to the rate of fare are binding. Thus it was so held where a franchise granted by a village, provided that the company should he entitled to charge at the rate of one and one-half cents per mile between any two points on its line between the city of Detroit and the city of Ann Arbor. The company also had a franchise from a town authorizing it to charge not to exceed five cents within the limits thereof. It was held that the defendant had obligated itself to accept as compensation from any passenger to or from the village granting such franchise not more than one and one-half cents per mile, notwithstanding the provisions of the franchise granted by the town. 30 Where, by the Constitution of the State, a munici- pality would be authorized to operate a street railway line and to furnish transportation free to its policemen and firemen and United States mail carriers and half-rate tickets to school children and free transportation to children under a certain age whilst traveling with a parent or guardian, it may grant a franchise to a street railway containing provisions to this effect, and is not prohibited from so doing by a constitutional provision forbidding the giving of free transportation by any " railroad or transporta- tion company, or transmission company." In such a case the company is not regarded as furnishing the " free transportation," but the transportation, and reduced rates are considered as fur- nished by the city, which has a right to do so. 31 A provision in the franchise of an interurban railway company for a specified rate of fare is held to include any line which that company or its assignee may at any time build or purchase. 32 Where a street railway company accepts a franchise and begins operating its road and the franchise is subject to certain conditions concerning the selling of reduced rate tickets, it thereby assumes contractual bill by the township authorities to 31. Oklahoma City v. Oklahoma restrain the company from collecting Ry. Co., 20 Okla. 1, 6 St. Ry. R«p. -a, greater rate of fare than that stipu- 257, 93 Pac. 48. lated. Mill Creek Township v. Erie 32. West Bloomfield Township v. Rapid Transit St. Ry. Co., 209 Pa. St. Detroit United Ry., 146 Mich. 198, 300, 3 St. Ry. Rep. 769, 58 Atl. 613. 109 N. W. 258, 5 St. Ry. Rep. 515. 30. Vining v. Detroit, Ypsilanti, Compare City of Montpelier v. Barre Ann Arbor & J. Ry. Co., 133 Mich. & Montpelier Tr. & P. Co., 76 Vt. .16, 539, 1 St. Ry. Rep. 366, 95 N. W. 542. 2 St. Ry. Rep. 911, 56 Atl. 278. 133 § 52 THE FBANCHISE CONTINUED CONDITIONS. relations concerning such conditions. 33 And where the franchise of an interurban railway contains a provision that it shall issue family tickets at a certain reduced rate, it is decided that the com- pany does not comply with its contract in simply having such tickets at one place near one terminus of the road. 34 Even though an ordinance as to rate of fare may be construed as a con- tract, yet where the Constitution of the State provides that no irrevocable or uncontrollable grant of special privileges or im- munities shall be made, but that all privileges granted by the legislature or created under its authority shall be subject to the control thereof, the legislature is not deprived of that control by the fact that the contract was not entered into by the legislature itself, but by a municipal corporation, since that is but an agency of the State. 35 But power to regulate the rate of fare which such companies may charge, being vested in the legislature, a city has no authority to enter into a contract with a street railway com- pany which curtails such power. 36 Where a municipal corpora- tion cannot legally impose conditions as to the rate of fare which may be charged, the acceptance by the company of a grant of a location containing conditions of this character does not render such conditions valid and enforceable. 37 Authority to the select- men of a town to grant a location to a street railway company and 33. Virginia Passenger & Power stationed through the country. They Co. v. Commonwealth, 103 Va. 644, do their business on the cars, and, 49 S. E. 995, 3 St. Ey. Rep. 856. wherever passengers have a right to 34. West Bloomfield Township v. take the cars, they have the right un- Detroit United Ey. 146 Mich. 198, 109 der the franchise to purchase these N. W. 258, 5 St. Ey. Eep. 515. The tickets. Sternberg v. State, 36 Neb. court said: "The respondent placed 307, 54 N. W. 553, 19 L. E. A. 570; on sale near its terminus, in a drug Detroit v. Ft. Wayne & Belle Isle store in the city of Pontiac, the fam- Ey. Co., 95 Mich. 456, 54 N. W. 558, ily tickets for which its franchise 20 L. R. A. 79, 35 Am. St. Eep. 580." provided. This is not a compliance 35. San Antonio Traction Co. v. with its contract. It was not con- Altgelt, 200 U. S. 304, 26 Sup. Ct. templated that the citizens of Bloom- 261, 50 L. ed. 491. field should go to Pontiac to buy 36. City of Indianapolis v. Navin, tickets. Every one had a right to 151 Ind. 139, 47 N". E. 525, 51 N. E. purchase a family ticket at the place 80, 41 L. E. A. 337. where he had a, right to board the 37. Keefe v. Lexington & Boston cars with his family for passage. St. Ey. Co., 185 Mass. 183, 2 St. Ey. These roads do not have ticket oflBces Eep. 450, 70 N. E. 37. 134 THE FKANCHISE CONTINUED CONDITIONS. § 53 to impose such terms, conditions, and obligations as the public interest may in their judgment require does not confer power upon them to limit the rate of fare which may be charged as a condition for the grant where, by statute, the directors of such a company are authorized to establish the rates of fare and their action is made subject to the revision of the railroad commis- sioners. 38 Again, the selectmen of a town, in granting locations for a street railway line, act not as agents of the town, but as public officers especially designated by the law-making power for that purpose, and the town cannot, by its vote requiring the select- men to insert conditions in the franchise as to the rate of fare and residence and pay of the laborers employed in constructing the line, bind the company. 39 § 53. Conditions imposed — Transfers. — Where a city has power to fix the maximum rate of fare which street railway com- panies may charge, the power to provide as to the giving of trans- fers is included therein. 40 And an ordinance granting a right to use the city streets and which contains a condition as to the giving of transfers, constitutes, when accepted and acted upon by the company, a contract with which it is obliged to comply. 41 Where a franchise as accepted by a street railway company con- tains a condition as to the issuance of transfers free of charge to all passengers requesting the same who boarded its cars at any point upon its line within the limits of the city and whose destina- tion might be within such limits, and there is no provision to indicate any intention of the parties to confine the agreement to transfers within the limits of the city at the date of the granting and acceptance of the franchise, the company will be obligated to issue transfers to any point within the limits of such city, though the limits are subsequently extended. 42 But a condition in a 38. Keefe v. Lexington & Boston 41. Virginia Passenger & Power St. Ry. Co., 185 Mass. 183, 2 St. Ry. Co. v. Commonwealth, 103 Va. 644, Rep. 450, 70 N. E. 37. 49 S. E. 995. 39. Flood v. Leahy, 183 Mass. 232, 42. Indiana Railway Co. v. Hoff- 1 St. Ry. Rep. 303, 66 N. E. 787. man, 161 Ind. 593, 2 St. Ry. Rep. 198, 40. Chicago Union Tr. Co. v. City 69 N. E. 399. The court said that of Chicago, 199 111. 484, 65 N. E. 451, the street railway company " made to 59 L. R. A. 631. the city a written proposition, as 135 § 53 THE FRANCHISE CONTINUED - CONDITIONS. franchise to a street railway company which fixes the rate of fare and requires the giving by the company of transfers for use on all of its own lines, does not obligate such company to give trans- fers for use on a line connecting its lines within the city with the lines of another railway in another city where rights had been acquired by the former company, though the franchise of the latter company was granted subject to similar conditions. 43 In another case, however, where an ordinance granting a right to shown, whereby, among other things, it stipulated and agreed forthwith upon the acceptance of its proposition by the city to ' issue transfer tickets free of charge to all passengers re- questing the same,' who might board the cars at any point upon any of its lines within the limits of the city, whose destination might be to any point upon any other line of the com- pany's road within said limits. This proposition, as shown, was duly ac- cepted by the city, and placed upon its records, and became a binding con- tract between it and the appellant. There was no provision made therein to indicate that the parties were in- tending to confine the agreement to the limits of the city as they existed on the said 11th day of September, 1899, and under the circumstances it cannot, in reason, be asserted that the parties only intended to include the limits as they then were and not as they might thereafter be extended. The right of the city of South Bend to enlarge her boundaries under the laws of this State is governmental, which it cannot bargain away, and it may be presumed that appellant, un- der its contract, whereby it agreed to issue the transfer tickets within the city limits, must have contemplated that the city in the future might ex- ercise the right of annexing territory and thereby extend its limits. Upon no view of the case can the provision 'within the limits of the city' be interpreted to have been intended un- der the agreement embraced in the proposition made by appellant to ap- ply only to such limits as then fixed. * * * This extension, as we have said, by the municipal authorities, was the exercise of governmental pow- ers. In a legal sense the city is a unit, although its boundaries may be changed from time to time by exten- sion, and all persons within the lim- its thereof, as extended,' become bound by, and must yield obedience to, its ordinances. It certainly, in reason, cannot be asserted that an ordinance adopted by a city must, in its opera- tion, forever be confined to the limits of the municipality as they were at the time it was passed, and cannot become operative ii_ territory there- after annexed and made a part of the corporation. And with no more force and reason can it be said in this case, under the circumstances, that the agreement of appellant in regard to issuing transfer tickets to passengers is not operative within the limits of the city as thereafter extended." Per Jordan, J., citing also the following cases : McCallie v. Mayor, 3 Head (Tenn.) 317; St. Louis, etc., Co. v. St. Louis, 46 Mo. 121; Town of To- ledo v. Edens, 59 Iowa 352, 13 N. W. 313; Town of Milwaukee v. Milwau- kee, 12 Wis. 93. 43. City of Montpelier v. Barre & Montpelier Tr. & P. Co., 76 Vt. 66, 2 St. Ry. Rep. 911, 56 Atl. 278. 136 THE FRANCHISE CONTINUED CONDITIONS. 54 use the streets contained a condition that the company should grant transfers, without additional charge, over any intersecting line, good to the end of such line, and there was at the time of such grant another street railway connecting with the first line and extending several miles out into the country, it was decided that the latter railway is an intersecting line and that it is incum- bent on the grantee under the ordinance to grant transfers good for the whole of such connecting line. In such a case it is de- clared that the word line will be construed as employed in its popular signification and with reference to the circumstances out of which the ordinance grew and with reference to the urban and suburban railway conditions in and around the city. In this case the court said that this conclusion was greatly strengthened by the fact that this construction was the one which had been acted upon by the company commencing a short time after the passage of the ordinance and continuing for several years. 44 § 54. Conditions imposed — As to paving — Grading. — Power to grant locations for a street railway under such conditions as the selectmen may consider that the public interests require will authorize the imposing of conditions as to the keeping in repair of portions of the street occupied by the company's tracks and for a distance on each side thereof. 45 Conditions in an ordinance granting a franchise that the company shall plank all crossings of streets, erect suitable sign boards if required by the city, and if the city shall at any time cause a part of any street crossing the railroad at grade to be paved, the company shall grade, pave, and keep paved the part of the street or avenue so crossed, are not unreasonable. 46 And a street railway company having accepted a franchise with conditions as to planking all crossings and erect- 44. Virginia Passenger & Power by a third company which ran its Co. v. Commonwealth, 103 Va. 644, cars with the same conductors over 3 St. Ry. Rep. 856, 49 S. E. 995. The the entire connecting line to the orig- court also held in this case that this inal point of intersection of the two construction was not affected by the lines. fact that so much of the connecting 45. Dunbar v. Old Colony St. Ry. line as was within the city was subse- Co., 188 Mass. 180, 74 N". E. 352. quently purchased by the grantee in 46. In re Topping Ave., 187 Mo. the ordinance and the residue thereof 164, 3 St. Ry. Rep. 467, 86 S. W. 190. 137 §§ 55, 56 THE FRANCHISE CONTINUED CONDITIONS. ing suitable sign boards, if required by the city, cannot thereafter insist that such conditions are unreasonable. 47 So it is held to be a reasonable condition to impose upon a street railway to require it to widen and grade the highway to the full width of its layout, making it safe for public travel and to prescribe a reasonable time for the completion of the work. 48 Where a street railway fran- chise requires the grantee to keep a certain portion of the pave- ment in repair, the grantee and its successors are obliged to lay, from time to time, such pavement as may be necessary to keep the street in thorough repair. 49 § 55. Conditions imposed — As to tracks — Switches. — A con- dition in a grant of location that the company may, under certain conditions, be compelled to reconstruct its tracks, has been held to be authorized where power is conferred on selectmen to grant locations under such conditions as they may consider that public interests may require. 50 Where an ordinance granting a right to a company to construct and operate a street railway in the city authorizes the company to lay double tracks in a certain street, with no provision as to their uses, a provision therein requiring the consent of the city council to the construction of switches will not prevent the company from constructing a double track in such street, though such tracks are to be used as passing tracks in con- nection with two ends of a single track. There having been no attempt by the parties to place a restriction or limitation upon the uses of the double tracks, the ordinance will be construed as leav- ing their uses to the discretion of the company, provided such uses are in furtherance of the purposes to be accomplished in the opera- tion of the line. 51 § 56. Other particular conditions. — In the exercise of this power to ' impose conditions license fees may be required ; 52 a 47. In re Topping Ave., 187 Mo. Ave. R. Co., 130 App. Div. (N. Y.) 164, 3 St. Ry. Rep. 467, 86 S. W. 839, 115 N. Y. Supp. 876. 190. 50. Dunbar v. Old Colony St. Ry. 48. State ex rel. Waterbury v. New Co., 188 Mass. 180, 74 N. E. 352. York, N. H. & H. R. Co., 81 Conn. 51. Denison & S. Ry. Co. v. City 645, 71 Atl. 942. of Denison, (Tex. Civ. App. 1909) 49. Mayor of New York v. Ninth 119 S. W. 115. 52. Mayor v. Broadway & Seventh 138 THE FRANCHISE CONTINUED CONDITIONS. 56 percentage of the gross earnings from all sources may be ex- acted ; 53 so with incidental expenses of the ordinance and a reason- able counsel fee. 54 And compliance with all ordinances in force or thereafter to be passed in reference to railroads may be ex- acted. 55 And the traffic may be limited strictly to the carriage of passengers although the charter of the company authorizes it to carry freight and express matter also. 56 And it may be provided that disputes between grantee and its employees must be submitted to arbitration. 57 The rate of speed cannot be controlled by any stipulation in the consent of the local authorities to the use of the streets for railroad purposes, since it is a matter within the police Ave. E. Co., 17 Hun (N. Y.) 242; Byrne v. Chicago, etc., B. Co., 63 111. App. 438, 1 Chic. L. J. W. 533 ; aflfd... 169 111. 75, 48 N. E. 703, 7 Am. & Eng. Corp. Cas. (N. S.) 768. Not so however where the corporation is or- ganized under » contract with good consideration expressed conferring rights and powers and defining upon what terms it might use the streets and run its cars. Mayor v. Second Ave. E. Co., 32 N. Y. 261; Mayor v. Third Ave. E. Co., 33 N. Y. 42; Byrne v. Chicago G. E. Co., 169 111. 75, 48 N. E. 703, 7 Am. & Eng. Corp. (N. S.) 768, affg. 63 111. App. 438; Mayor, etc., of the City of New York v. Third Ave. E. Co., 117 N. Y. 404, 646, 27 St. Eep. (N. Y.) 170, 40 Am. & Eng. E. Cas. 278, 2? N. E. 755. 53. Cincinnati v. Mt. Auburn Cable E. Co., (Cin. Super. Ct.) 28 Ohio L. J. 276. 54. Hutchinson v. Borough of Bel- mar, 62 N. J. L. 450, 45 Atl. 1002. To the grant of the right to occupy its streets with street railway tracks the city may attach conditions neces- sary to protect itself from pecuniary liability and to secure the health and welfare of its citizens. Springfield v. Eobberson Ave. E. Co., 69 Mo. App. 514. It is not a waste of municipal property to allow a, street railroad company to lay a railroad track upon a street of New York city on payment of $100 per annum and all expenses. Hart v. City of New York, 16 App. Div. (N. Y.) 227, 44 N. Y Supp. 767. When the road is con- structed under proper authority on a street outside the city limits, the company cannot be compelled, after such street has been brought within the limits, to remove its tracks be- cause of its failure to comply with the terms on which it was originally allowed to use the street. Johnson v. Owensboro & N. E. Co., 18 Ky. L. E. 276, 36 S. W. 8. 55. Philadelphia v. Eidge Ave. Pass. E. Co., 143 Pa. St. 444, 22 Atl. 695, 28 W. N. C. 388, 48 Phila. Leg. Int. 414. 56. St. Louis & M. E. Co. v. Kirk- wood, 159 Mo. 239, 53 L. E. A. 300, 60 S. W. 110. But in Nebraska it has been recently decided that the privileges of the company are deter- mined by the general law, and not by the ordinances under which, with the consent of the majority of the elec- tors, it is given the right to use the streets. Lincoln St. Ey. Co. v. City of Lincoln, 61 Neb 109, 84 N. W. 802. 57. Wood v. City of Seattle, 22 Wash. 1, 62 Pac. 135. 139 § 57 THE FRANCHISE CONTINUED CONDITIONS. power of the State, and the municipality cannot divest itself of the power to regulate the speed as circumstances may require. 58 But where a street railway company accepts the privileges con- fered by an ordinance by virtue of which it uses and occupies the streets of a city, it cannot refuse to comply with obligations im- posed upon it thereby as to rate of speed and giving proper signal on approaching crossings. 59 In the case of an interurban street railway a condition, upon which the franchise was granted and accepted, that " all passenger cars to be used on said railway shall be of modern design, first-class in every particular, and supplied with suitable appliances for a suburban railway insuring the comfort, convenience, and safety of its patrons," has been con- strued as requiring toilet rooms and water tanks. 60 An easement granted for a particular purpose ceases when its use for such purpose is or becomes impossible under the terms of the grant. 61 § 57. Acceptance of franchise. — No formal resolution of ac- ceptance by the street railroad company is required to be filed, or made, in any case unless written acceptance is required by statute, or is imposed as a condition of their consent by the local authori-. ties ; and where written consent is thus required and filed the force thereof is not diminished by a declaration in the instrument of consent that the company waives none of its vested rights under its charter. 62 If the facts show an actual, practical acceptance by the company, or action which would be only explicable in case the franchise were accepted, it is sufficient. 63 A previous request for an ordinance obviates the necessity of a subsequent accept- 58. Brooklyn v. Nassau El. R. Co., on condition that the cars should be 20 App. Div. (N. Y.) 31, 46 N. Y. moved thereon by animal power only Supp. 651. is at an end if practical use of the 59. Cincinnati L. & A. Electric St. track cannot be made by animal E. Co. v. Stahle, 37 Ind. App. 539, 76 power. So. R. Co. v. City of Mem- N. E. 551, 77 N. E. 363, 4 St. Ry. phis, (U. S. C. C. A. Tenn.) 97 Fed. Rep. 266. 819. 60. West Bloomfield Township v. 62. Trenton v. Trenton H. R. Co., Detroit United Ry., 146 Mich. 198, (N. J. Sup.) 19 Atl. 263. 109 1ST. W. 258, 5 St. Ry. Rep. 515. 63. City Ry. Co. v. Citizens' St. 61. So an easement to lay and R. Co., 166 U. S. 557, 41 L. ed. 1114, maintain a railroad track in a street 17 Sup. Ct. Rep. 653. 140 THE FRANCHISE CONTINUED CONDITIONS. § 57 ance. 64 The acceptance of an ordinance extending the franchise of a street railroad company may be presumed from the fact that the amendment is beneficial to the corporation, especially when it proceeds to issue bonds falling due at the expiration of the en- larged franchise. 65 And where a consolidated street railway cor- poration possessing several franchises which expire at different times is granted an extension by ordinance within the power of the city to pass and there is a compliance by the company, at con- siderable expense, with conditions imposed therein which are of benefit to the public, a contract exists which is within the protec- tion of the clause of the United States Constitution forbidding the impairment of contract obligations. 66 Upon acceptance, and not before, the contract is made and cannot be revoked, 67 and the railroad company having deposited an amount as liquidated dam- ages in case of its failure to construct the road as agreed upon, cannot thereafter maintain an action to have the grant annulled, the contract rescinded, and to recover the deposit. 68 But mere silence, unless maintained for a considerable time, will not be held to indicate that the company has accepted an ordinance conferring 64. City Ry. Co. v. Citizens' St. and stop the car in the shortest time R. Co., 166 U. S. 557, 41 L. ed. 1114, and space possible on the first ap- 17 S. Ct. 653; Atlanta v. Gate City pearance of danger to such person, Gas Light Co., 71 Ga. 106; Illinois is not shown by the company's agree- River R. Co. v. Zimmer, 20 111. 654; ment to hold the city harmless from Lincoln & K. Bank v. Richardson, 1 all damages that might occur to >t Me. 79, 10 Am. Dec. 34; State, Carl- by reason of the failure to comply ton v. Dawson, 22 Ind. 272; Newton with the ordinance. Murphy v. Lin- v. Carbery, 5 Cranch (C. C.) 632; dell Ry. Co., 153 Mo. 252, 52 S. W. Perkins v. Sanders, 56 Miss. 733. 442. 65. City Ry. Co. v. Citizens' St. 66. Cleveland v. Cleveland Electric R. Co., 166 U. S. 557, 41 L. ed. Ry. Co., 201 U. S. 529, 26 S. Ct. 513, 1114; 17 S. Ct. 653; Bank of U. 50 L. ed. 854. S. v. Dandridge, 25 U. S. (12 67. Township of Hamtramck v. Wheat.) 64, 6 L. ed. 552; Charles Rapid Ry. Co., 122 Mich. 472, 81 N. River Bridge v. Warren Bridge, 7 W. 337; Richmond R. & E. Co. v. Pick. (Mass.) 344; Commonwealth v. Brown, 97 Va. 26, 32 S. E. 775, 1 Cullen, 13 Pa. St. 133, 53 Am. Dec. Va. S. C. Rep. 213; Hamilton, Jones 450; Bangor O. & M. R. Co. ,. Smith, v. C. & H. El. St. Ry. Co. (C. P.), 5 47 Me. 34. Acceptance by a street Ohio N. P. 457. railway company of an ordinance de- 68. Peekskill R. Co. v. Peekskill, claring that motormen and conduct- 21 App. Div. (N. Y.) 94, 47 N. Y. ors must keep vigilant watch for per- Supp. 305. sons on or moving toward the track 141 § 58 THE FRANCHISE CONTINUED CONDITIONS. rights and privileges not included in the company's charter, and also imposing upon it additional burdens. 69 § 58. Rights under franchise — Generally. — As we haye al- ready stated, in determining the rights of a street railway com- pany in the streets, the franchise is to be strictly construed against the company and no implication in derogation of the rights of the public will be indulged in. 70 So permission to construct and operate an electric street railway is for the purpose of facilitating public travel and for the benefit and convenience of the traveling public and does not confer upon the company to whom such per- mission is granted an exclusive privilege. 71 And the granting of a franchise to lay tracks in streets and run cars thereon by elec- tricity does not carry the right to erect a signal tower in the street unless it is shown that it cannot be made of practical use if located on private property ; and even in such a case the court de- clared that it did not decide that the right was included in the franchise. 72 Where the franchise of a street railway company only authorizes it to exercise such franchise for the .purpose of carrying passengers, the running of freight cars over its tracks without authority and in violation of law is a public nuisance. 73 But the rights granted by a city to a street railway company, chartered by the State, to construct and operate its line is not a mere license. 74 Where the ordinance permitted the laying of " tracks or track " and the company laid a single track, it was held that they had the right at any 'time thereafter to construct another track. 75 But a street railway company which is by ordinance granted the right to construct and maintain a single or double track railway subject to the condition that the line shall be com- 69. Western P. & S. Co. v. Citi- Ry. & L. Co., 119 Wis. 398, 2 St. Ry. zens' St. Ry. Co., 128 Ind. 525, 26 Rep. 959, 96 N. W. 832. N. E. 188, 10 L. R. A. 777. 74. People ex rel. Jackson v. Sub- 70. See sections 15 and 46, herein. urban R. Co., 178 111. 594, 53 N. E. 71. Ogden City Ry. Co. v. Ogden 349; State ex rel. Kansas City v. City, 7 Utah 207, 3 St. Ry. Rep. 321, East Fifth St. Ry. Co., 140 Mo. 539, 26 Pac. 288. 41 S. W. 955, 38 L. R. A. 218, 62 72. Williams v. Los Angeles Ry. Am. St. Rep. 742. Co., 150 Cal. 592, 89 Pac. 330, 5 St. 75. Workmen v. Southern Pacific Ry. Rep. 42. R. Co., 129 Cal. 536, 62 Pac. 185, 316. 73. Daly v. Milwaukee Electric 142 THE FRANCHISE CONTINUED CONDITIONS. § 59 pleted before a certain date may, on its option, construct either a single or double track line before the expiration of the time specified. It must, however, elect which kind of a line it will construct and if it builds a single track line it will be regarded as having exhausted the powers conferred, so that it is precluded after the expiration of the specified time from converting the line laid into a double track one. 76 A street railway company though it may not be authorized to acquire a right of way over private property by exercising the power of eminent domain may never- theless acquire such a right of way by purchase or lease from the § 59. Rights under franchise — Implied powers. — The fact that a street railway company is not authorized to engage in the business of carrying freight for others does not prevent it from using the streets in a reasonable way for the transportation of any- thing which it is reasonably necessary to transport as incidental to the proper management of its legitimate business. Thus the construction and maintenance and management of a street rail- way involve the use at different times of many kinds of materials, at different places along its lines, and it has the right to use the streets in a reasonable way to transport such materials. So it may transport rails and timbers used to support them in cars over its tracks. Likewise coal may be so transported for the purpose of use in a power house for the production of electricity to be used as power. In fact such material -as is necessary to the operation of the railway may be lawfully transported in cars over the tracks of the company. 78 And it has been decided that though a street railway company may be forbidden to use electricity for lighting purposes it may use it for light as an incident to its business, such as the lighting of its cars or the streets through which its cars run, and that it might be compelled to maintain lights along such 76. Eastern Wisconsin Ry. & El. ment, Montgomery Amusement Co. v. Light Co. v. Winnebago Traction Co., Montgomery Traction Co., 139 Fed. 126 Wis. 179, 105 N. W. 571. 353. 77. Montgomery Traction Co. v. 78. Caswell v. Boston Elevated Ry. Montgomery Amusement Co., 140 Co., 190 Mass.. 527, 4 St. Ry. Rep. Fed. 988, 72 C. C. A. 682, affg. judg- 445, 77 N. E. 380. 143 § 60 THE FRANCHISE CONTINUED CONDITIONS. streets. 79 So the fact that electric street railways use electric power or electricity for illumination in connection with the opera- tion of their lines does not bring them within the operation of a statute authorizing the assessment of the damages suffered by abutting owners on account of the construction of " electric light and electric power lines." A statute of this character is construed as referring to corporations engaged in the business of manufac- turing or furnishing electric power or electric light for others. 80 Again, the right to construct and operate an electric street rail- way line within the limits of a city carries with it the right to erect and maintain a necessary power house and car sheds at a convenient place or places. This being so, and the evidence being conflicting as to whether or not the location and use of these struc- tures at the place selected will result in any injury to adjoining owners, it is proper to refuse to adjudge in advance that they will be a nuisance. In such a case there is a proper exercise of dis- cretion in refusing an injunction. 81 § 60. Rights under franchise — How and by whom questioned. — The validity of the ordinance and consents under which a street railway company constructed and is operating its road, and the fact that it failed to complete its road in conformity with, or within the time limited by, its franchise, or otherwise failed to comply with the obligations imposed upon it, cannot be raised in a suit to enjoin its operation by a private individual or another company, unless special or peculiar injury to the plaintiff can be shown. Such questions concern the public generally and not any particular individual, unless he has suffered a particular injury, and can only be raised by the State or city granting the fran- chise. 82 Even the municipality cannot complain that the grant 79. Cunningham v. Boston & W. 82. Illinois. — Cairo & Vincennes S R. Co., 188 Mass. 250, 4 St. Ry. R. Co. v. People, 92 111. 170; Chicago Rep. 461, 74 N. E. 355. Gen. Ry. Co. v. Chicago City Ry. Co., 80. McDermott v. Warren, Brook- 87 111. App. 17, affd., 186 111. 219, field & Spencer St. Ry. Co., 172 Mass. 57 N. E. 822. 197, 7 Am. Elec. Cas. 367, 51 N. E. Iowa. — Quinn v. Shields, 62 Iowa 970. 129, 17 N. W. 437. 81. Powell v. Macon & Indian Louisiana. — New Orleans City & Springs R. Co., 92 Ga. 209, 4 Am. L. R. Co. v. New Orleans, 44 La. Electl. Cas. 44, 17 S. E. 1027. Ann. 748, 11 So. 77, 50 Am. & Eng. 144 THE FRANCHISE CONTINUED CONDITIONS. § 60 R. Cas. 391; Attorney-General v. Fagan, 22 La. Ann. 545. Michigan. — Nichols v. Ann Arbor, etc., Ry. Co., 87 Mich. 361, 49 N. W. 538. Missouri. — Kitchell v. Manchester R. & E. R. Co., 79 Mo. App. 340, 2 Mo. App. Rep. 457. New York. — Re New York Elev. Ey. Co., 70 N. Y. 327; Black v. Brooklyn Heights R. Co., 32 App. Div. 468, 53 N. Y. Supp. 312. Pennsylvania. — Junction Pass. Ry. Co. v. Williamsport Pass. Ry. Co., 154 Pa. St. 116, 26 Atl. 295, 32 W. N. C. 152; Meixell v. Northampton Cent. St. Ry. Co., 7 North Co. R. (Pa. Super. Ct.), 274. Wisconsin. — Linden Land Co. v. Milwaukee Electric Ry. & Light Co., 107 Wis. 493, 83 N. W. 851. The corporate existence of a de facto street railroad corpora- tion cannot be attached col- laterally. — It can only be ques- tioned by a direct proceeding brought for that purpose. Cleveland C. C. & St. L. Ry. Co. v. Peight, 41 Ind. App. 416, 6 St. Ry. Rep. 842, 84 N. E. 15. In action for personal in- juries. — The right of a street rail- way company authorized by the legis- lature to run freight cars over its lines without municipal consent can- not be questioned collaterally in an action for injuries inflicted upon a child by a car operated by such rail- way company in a. street. Roberts v. Terre Haute Elec. Co., 37 Ind. App. 664, 4 St. Ry. Rep. 254, 76 N. E. 323, 895. An abutting owner who has no right in the fee of a street has never- theless sufficient interest to restrain, by injunction, the construction in the street of a. trolley railroad where the consents of half the property in value bounded on the proposed line has not been secured. Merriman v. Utica Belt Line St. R. Co., 18 Misc. Rep. (N. Y.) 269, 41 N. Y. Supp. 1049. Burden of proof. — One who seeks to restrain the building of a street railroad because necessary con- sents have not been obtained has the burden of proving the fact. O'Brien v. Buffalo Trac. Co., 31 App. Div. (N. Y.) 632, 52 N. Y. Supp. (86 St. Rep.) 322. An exclusive right in a street railroad company to operate its line in a city is such a property right as will entitle it to raise by injunction the question of forfeiture by a fail- ure to perform the conditions of the charter of another company which has been granted the right to build a street railroad in certain streets of the same city. Wilmington City Ry. Co. v. Wilmington & B. S. Ry. Co., 8 Del. Ch. 468, 46 Atl. 12. And see McClean v. Westchester El. R. Co., 25 Misc. Rep. (N. Y.) 383: Denver & S. Ry. Co. v. Denver City R. Co., 2 Colo. 673. Where it was sought to enjoin a. street railway company from placing advertisements on the upper inside parts of its cars, it was decided that the publisher of a weekly newspaper who sought to enjoin the company from so doing because as a result such act diverted a, large and lucrative business which otherwise he might have been able to secure was not entitled to litigate the question whether the acts of the railway com- pany were ultra vires or not. Burns v. St. Paul City Ry. Co., 101 Minn. 363, 5 St. Ry. Rep. 524, 112 N. W. 412. Enjoining removal of advertising signs, news-stands, and automatic vending machines maintained in sta- tions in New York city under lease from board of rapid transit commis- sioners. See Interborough Rapid Transit Co. v. City of New York, 47 10 145 61 THE FRANCHISE CONTINUED - CONDITIONS. of the right to lay the tracks in certain streets is invalid because of the failure to secure the consent of property owners. 83 § 61. Conflicting grants or franchises. — While a common coun- cil cannot properly so multiply street railroad tracks in a par- ticular street as to interfere with the rights of the public therein, 84 yet the policy, and generally the express provision, of the law in every State prohibits the grant of an exclusive right to any one corporation to construct and operate a street railroad in any street. If on the face of any charter or ordinance an exclusive right be granted, it will be controlled by the power reserved in the legisla- ture or in the municipal council to alter, amend, or repeal it, and where such exclusive right has been revoked by the legislature the company cannot object that the city gave consent to another com- pany to use the streets. 85 The city cannot be estopped unless the former consent has been so acted upon by the first company as to cause substantial loss if it be recalled. 86 So, under the power Misc. Rep. (N. Y.) 221, 95 N. Y. Supp. 886. 83. Hamilton, Jones v. C. & H. St. El. R. Co., 5 Ohio N. P. 457. 84. Grand Rapids St. Ry. Co. v. W. S. St. Ry. Co., 48 Mich. 433, 12 N. W. 643; Wood v. City of Seattle, 23 Wash. 1, 62 Pac. 135; West Jersey Traction Co. v. Camden H. R. Co., 53 N. J. Eq. (8 Dick.) 163, 35 Atl. 49. A street railroad company acquires no exclusive right to city streets, al- though its charter gives it a right to extend its system to any street then or thereafter to be laid out. As be- tween it and a rival company its right to operate in any street there- after laid out depends upon prior occupancy. Africa v. Knoxville (C. C. E. D. Tenn.), 70 Fed. 729. 85. United States. — New Orleans City R. Co. v. Crescent City R. Co., 12 Fed. 308. Alabama. — Birmingham, etc., St. By. Co. v. Ry. Co., 79 Ala. 465. Indiana. — Indianapolis Cable St. R. Co. v. Citizens' St. R. Co., 127 led. 369, 24 N. E. 1054, 43 Am. & Eng. R. Cas. 234. Iowa. — Des Moines St. R. Co. v. Des Moines Broad Gauge St. R. Co., 73 Iowa 513, 33 N. W. 610, 32 Am. & Eng. R. Cas. 209. Louisiana. — Canal & Claiborne St. Ry. Co. v. Crescent City R. Co., 41 La. Ann. 561, 6 So. 849, 40 Am. & Eng. R. Cas. 329. New York. — Milhau v. Sharp, 17 Barb. 435, 28 Barb. 228, affd., 27 N. Y. 611, 84 Am. Dec. 314. Ohio. — Cincinnati St. R. Co. v. Smith, 29 Ohio St. 291. Texas.— Fort Worth St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 169, 4 S. W. 534. Utah. — Henderson v. Ogden City Ry. Co., 7 Utah 199, 26 Pac. 286, 46 Am. & Eng. R. Cas. 95. 86. Wilmington City R. Co. v. Peo- ple's R. Co., (Del. Ch.) 47 Atl. 245. Where an exclusive franchise has been granted to one corporation, an act giving another the right to con- struct railroad lines in the same 146 THE FRANCHISE CONTINUED CONDITIONS. § 61 reserved by an ordinance to order the construction of any new line of street railroad, or the extension of any present or future lines of railroad, upon any or all streets of the city upon which sewers have been constructed, the common council may order the extension of the street car service of one line to and into the business or central part of the city over streets or parts of streets on which there is an existing track on which the cars of another line are already operated. 87 And municipal authorities may, unless restrained by statute, grant a street railway company a right to construct and operate a line over a route which is substantially the same as that which another company is authorized by its franchise to main- tain. 88 And where an ordinance granting a right to use the streets provides that if the city shall subsequently grant to another com- pany the privilege to operate a street railway in such streets, it may permit such company to use the prior grantee's tracks upon making proper compensation, the city authorities may grant to another company the right to use such tracks by electric cars, although the use of electricity was unknown when the ordinance was passed, and although some disturbance and injury to the earlier grantee, since compensation is provided for. 89 But the street impliedly revokes such exclu- of the other company in absence of sive privilege under the power re- either lease, contract, invitation, ac- served to the legislature by the Con- quiescence, or estoppel and in opposi- stitution. Wilmington City Ry. Co. tion to the will of the owner of the v. Wilmington, etc., Ry. Co., 8 Del. track. Chicago Gen. R. Co. v. Chi- Ch. 468, 46 Atl. 12. And see State cago City R. Co., 62 111. App. 502. ex rel. City of St. Paul v. St. Paul One street railroad company City Ry. Co., 78 Minn. 331, 81 N. W. cannot onst another company 200. from the privilege of operating araii- 87. State ex rel. City of St. Paul road upon a street which the former v. St. Paul City Ry. Co., 78 Minn. company has permission from the mu- 331, 81 N. W. 200. And see Birming- nicipality to occupy with its line, ham Traction Co. v. Southern Bell where its charter does not authorize Telephone & Telegraph Co., 7 Am. it to lay its tracks upon such streets ; Electl. Cas. 405, 119 Ala. 144, 24 So. nor can it recover damages. Denison 731. & S. R. Co. v. Denison Land & In- truder an ordinance granting vestment Co., 11 Tex. Civ. App. 157, tie right to use the tracks of 32 S. W. 332. And see People v. another company upon such terms Kerr, 27 N. Y. 190. and conditions, by lease or contract, 88. Electric City Ry. Co. v. City as may be agreed upon between the of Niagara Falls, 48 Misc. Rep. (N. companies, or otherwise, a street rail- Y.) 91, 95 N. Y. Supp. 73. road company cannot use the tracks 89. North Baltimore Pass. Ry. Co. 147 § 61 THE FRANCHISE CONTINUED CONDITIONS. grant to operate a street railroad in a particular street prevents the common council from authorizing any other company to use such street in any way destroying, hindering, or embarrassing the use under the former franchise. 90 Where a street railway com- pany has been legally granted by ordinance the right to construct its railway and lay its track over a particular part of a designated street and has accepted such grant and entered upon and taken possession of the right of way, as authorized, a subsequent grant by the municipal authorities of the same right of way or a sub- stantial part thereof, to another street railway company for like purposes will not of itself confer upon the second grantee the right to enter upon and take possession of the route or right of way so granted, where such entry and possession by it will ma- terially and injuriously interfere with and abridge the first grant- ees use and enjoyment of its right of way. 91 While the State v. North Ave. Ry. Co., 75 Md. 233, 4 Am. Blectl. Cas. 1, 23 Atl. 466. 90. City Ry. Co. v. Citizens' St. Ry. Co., 166 U. S. 557, 17 S. Ct. 653, 41 L. ed. 1114; Fidelity Trust & S. V. Co. v. Mobile St. R. Co., (C. C. S. D. Ala.) 53 Fed. 687. And see Ger- mantown Pass. R. Co. v. Citizens' Pass. R. Co., 151 Pa. St. 138, 24 Atl. 1103, 31 W. N. C. 281. 91. Hamilton, G. & C. Traction Co. v. Hamilton & L. Elec. Transit Co., 69 Ohio St. 402, 2 St. Ry. Rep. 808, 69 N. E. 991, holding that the second grantee may in such a ease be re- strained by injunction from taking possession of the right of way. against the will and without the consent of the first grantee. The court said: " That a, city council may not, by express grant, give to a street rail- way company the absolute and exclu- sive right to occupy and use the streets of the city for street railway pur- poses, thus creating a monopoly, would seem now in this State to be well settled, and that the city council of the city of Hamilton did not, by the making of the said grant to the Ham- ilton & Lindenwald Transit Company, exhaust its powers, or deprive itself or its successors of the right, to make additional grants to other street rail- way companies for like purposes in and to the unoccupied portions of the said street or avenue, would seem to be abundantly sustained by the au- thorities. But it is, we think, equally well settled that where the right is given by ordinance to » street rail- way company to occupy and use par- ticular parts of certain streets, and the grant so made is accepted and acted upon by the grantee, the city authorities are thereafter, so long as said grant remains in full force, bh- forfeited and unrevoked, without right or authority to grant to an- other street railway company for like use the right to have and occupy without appropriation or the making of compensation therefor to the first grantee, precisely the same ground or right of way first granted. To permit this would be to sanction or allow the impairment of the obliga- tion of an existing contract by sub- sequent municipal legislation or 148 THE FRANCHISE CONTINUED CONDITIONS. § 61 may, in the exercise of the power of eminent domain, take fran- chises and property engaged in a public use and apply them to another public use, it cannot confer upon one corporation for profit the right to appropriate the property of another corporation to exactly the same public uses for the convenience and profit of the younger corporation. In the application of this doctrine it is decided that to superimpose on the tracks of a street railway com- pany the whole or any part of the tracks of a later company is a taking of the property of the earlier company. So, where a bor- ough had imposed upon a street railway company, as a limita- tion of its grant, a condition that it should only occupy a certain street subject to the right of the borough, at any subsequent time, to grant to another street railway company the use of such street in common with it, it was decided that the borough had no right to require that the line of a later company be located in such a manner as to straddle the tracks of the older company, the street being of sufficient width to permit the construction of both tracks thereon without interfering with each other. 92 An ordinance granting exclusive right to operate street railroads by animal power only for thirty years does not deprive the municipality of the right to confer upon another company authority to operate railroads otherwise than by animal power. 93 And having granted to one company the exclusive right to use the city streets it is not thereby precluded from permitting another company to occupy those streets not already used by the first company. 94 In a con- grant. This may not rightfully be delphia, B. & T. S. R. Co. v. Bond, done." Per Crew, J., citing Cooley's 214 Pa. St. 307, 4 St. Ry. Rep. 940, 63 Const. Lim. 383; New Orleans Gas Atl. 741. Co. v. Louisiana Light Co., 115 U. S. 93. Teachout v. Des Moines B. R. 650, 672, 6 S. Ct. 252, 29 L. ed. 516; Co., 75 Iowa 732, 38 N. W. 145. City Ry. Co. v. Citizens' Ry. Co., 166 94. Citizens' St. Ry. Co. v. Rose- U. S. 557, 17 S. Ct. 653, 41 L. ed. dale St. Ry. Co., 68 Tex. 169; Gulf 1114; Detroit v. Detroit Citizens' St. City St. Ry. Co. v. Galveston St. Ry. Ry. Co., 184 U. S. 363, 22 S. Ct. 410, Co., 65 Tex. 502; Covington St. Ry. 46 L. ed. 592 ; Canal Co. v. Railroad Co. v. Covington, etc., Ry. Co., 1 Ky. Co., 4 Gill & J. (Md.) 1; State v. L. R. 318; Jackson, etc., R. Co. v. Gas Light & Coke Co., 18 Ohio St. Inter-State R. T. Co., 24 Fed. 306. 262, 292; Brooklyn Central R. Co. v. Where » corporation using city streets Brooklyn City R. Co., 32 Barb. (N. for railroad purposes had refused to Y.) 358. build an additional road lawfully re- 92. Commonwealth ex rel. Phila- quired by the common council, it is 149 § 62 THE FRANCHISE CONTINUED CONDITIONS. test between two electric street railroad companies, to each of which a city has granted the right to construct its line along cer- tain streets, the court cannot determine whether one has forfeited its charter right to construct and operate its road; in the first instance, that is a matter for the determination of the city coun- cil. 95 Where the ordinance prescribes that a street railroad com- pany to whom a right to construct and operate a railroad is granted should permit another company to use its tracks upon payment of a reasonable compensation, the latter company cannot be en- joined from such use on the ground that the compensation pre- scribed by the common council and tendered was inadequate, with- out very clear proof of such inadequacy. 96 A street railroad hav- ing constructed its road in a street in New York city has a right, under the ~New York Railroad Law, to exclude another company from constructing a road there, and upon showing any special injury and damage to it, it may restrain, as a public nuisance, the unauthorized construction of such other road. 97 § 62. Sale or lease of franchise and property. — The franchise to be a corporation merely cannot be transferred by any corporate body of its own will. Such a franchise is not, in its own nature, transmissible. 98 To be the subject of sale and transfer, the law, by some positive provision, must make it so, and point out the modes in which such sale and transfer may be effected. 99 Unless specially authorized by its charter, or aided by some other legisla- tive action, a railroad company cannot, by lease or any other con- tract, turn over to another company, for a long period of time, its road and all its appurtenances, the use of its franchise, and the discretionary with the council to 96. Kinsman St. R. Co. v. Broad- make such changes in the proposed way, etc., R. Co., 36 Ohio St. 239. route as to adapt it to form » June- 97. Central Crosstown R. Co. v. tion with the road of some company Metropolitan St. R. Co., 16 App. Div. that will build it, even though in so (N. Y.) 229, 44 N. Y. Supp. 752. doing a street in which the former 98. Com. v. Smith, 10 Allen company had had exclusive rights is (Mass.) 448, 455. used as a connecting link. Grand 99. Hall v. Sullivan R. Co., 21 L. Rapids St. R. Co. v. West End St. R. R. 138, 2 Redfield R. Cas. 621, 1 Co., 48 Mich. 433, 12 N. W. 643. Brunner Col. Cas. 613; Memphis v. 95. Hamilton St., etc., Co. v. Ham- Berry, 112 U. S. 604, 607, 5 S. Ct. ilton & L. E. T. Co., 5 Ohio C. C. 319. 299, 28 L. ed. 837, 841. 150 THE FRANCHISE CONTINUED CONDITIONS. 62 exercise of its powers ; nor can any other railroad company, with- out similar authority, make a contract to receive and operate such road, franchises, and property of the first corporation, and such a contract is not among the ordinary powers of a railroad com- pany, and is not to be presumed from the usual grant of powers in a railroad charter. 1 So a corporation granted a franchise to construct and operate a street railway has no right to grant to another corporation the use of a portion of the line for the oper- ation of freight cars over the same. Such a grant is contrary to public policy, the use of the street for such purpose constitutes a nuisance, and where a special injury is caused to an abutting owner, a court of equity may interfere to restrain such use. 2 The mere fact that the charter authorizes contracts with other com- panies for transportation of goods and passengers does not au- thorize the sale or lease of the entire road and franchises. 3 And 1. Pennsylvania R. Co. v. St. Louis A. T. & H. R. Co., 118 U. S. 290, 309 6 S. Ct. 1094, 30 L. ed. 83, 92; Ore- gon Ry. & Nav. Co. v. Oregonian Ry. Co., Limited, 130 U. S. 1, 9 S. Ct. 409, 32 L. ed. 837; French v. Jones, 191 Mass. 522, 78 N. E. 118; Rafferty v. Central Trac. Co., (Pa. C. P.) Zz Pittsb. L. J. (N. S.) 15. See State ex rel. Kansas City v. East Fifth St. Ry. Co., 140 Mo. 539, 41 S. W. 955, 38 L. R. A. 218, 62 Am. St. Rep. 742, citing Railroad v. Delaware, 114 U. S. 501, 5 S. Ct. 1009, 29 L. ed. 244. But see Smith v. Reading Pass. R. Co., (Pa. C. P.) 2 Pa. Dist. 490; affd. on other grounds, 156 Pa. St. 5, 26 Atl. 779. Where the statute forbids a street railroad company to sell or lease its road, it has no right to refuse to accept a portion of its line from a construction company, and, under pretense of selling the mate- rial, abandon its line and turn over the entire property to a rival com- pany. Clemmens El. Mfg. Co. v. Wal- ton, 173 Mass. 286, 52 N. E. 132, 53 N". E. 820. Nor having accepted a franchise and laid its road in the streets in accordance therewith can it arbitrarily discontinue the operation of any part of such road to the detri- ment of the city and its inhabitants, since an implied condition attaches to the grant that it be held for pub- lic benefit. State, Bridgeton v. Bridgeton, etc., Co., 62 N. J. L. 592, 45 L. R. A. 837, 43 Atl. 715. 2. Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 307. 3. Thomas v. Railroad Co., 101 U. S. (11 Otto) 71, 9 S. Ct. 409, 25 L. ed. 950. Where a railway company obtains by contract the right to run cars not exceeding a certain weight over the tracks of another company until an- other type of car may be agreed upon, the lessee is not entitled to an in- junction restraining the lessor from preventing it from running heavier cars over such track as it has at- tempted to do in violation of the con- tract, there being no subsequent writ- ten agreement authorizing the use of such cars. Schenectady Ry. Co. v. United Traction Co., 101 App. Div. 151 § 62 THE FRANCHISE CONTINUED CONDITIONS. the incidental use in the charter, or in some applicable legislative act, of the words " lessees," " successors," or " assigns," does not show a legislative intent to grant such powers. 4 But in Missouri . it has been decided that where, by ordinance, certain enumerated street railway companies " and their successors and assigns " are authorized to execute a lease of their franchises and property to a certain designated company, a purchaser of the companies enu- merated will have the power by virtue of such ordinance to ex- ecute a lease of the^>roperty and franchises to the company speci- fied in the ordinance. So, where a municipal ordinance author- ized certain enumerated street railway companies " and their successors and assigns " to sell, convey, or lease their rights, priv- ileges, and franchises, either to any of said companies or to a certain designated company, such acquiring company to have au- thority to hold and operate the same during a certain specified term, it was held that a contract of lease between a purchaser of the property, franchises, etc., of such enumerated companies and the company specially authorized in such ordinance to take a ' lease of the same, was not inoperative for lack of consent of the local authorities under the Constitution of Missouri requiring their consent to any transfer of a street railway franchise, the objection being that such purchaser was not one of the enumerated companies authorized to sell, convey, or lease; that the decisive fact was that the said lessee was authorized to take a lease of such property and franchise. 5 (N. Y.) 277, 3 St. Ry. Rep. 709, 91 the court below, 119 Mo. App. 541, 96 N. Y. Supp. 651. S. W. 261, 6 St. Ry. Rep. 45, referred The question -whether an oral to in this case it was said, per Goode, contract between two companies as J.: "The Constitution of the State to the joint use of tracks is valid is forbids the enactment of a statute one for the court to determine. granting the right to construct and Looney v. Metropolitan R. Co., 24 operate a street railway in any city App. D. C. 510. without first obtaining the consent of 4. Thomas v. Railroad Co., 101 U. the local authorities, and forbids, too, S. (11 Otto) 71, 9 S. Ct. 409, 25 L. the transfer of a right or franchise ed. 950; Oregon Ry. & Nav. Co. v. to occupy a street with a street rail- Oregonian Ry. Co., 130 U. S. 1, 32 road without first obtaining such con- L. ed. 837. sent. Const., art. 12, § 20. The ar- 5. Moorshead v. United Railways gument for the plaintiff is that the Co., 203 Mo. 121, 100 S. W. 611, 6 ordinance relied on as giving the con- st. Ry. Rep. 42. In the opinion in sent of the city of St. Louis to the 152 THE FRANCHISE CONTINUED CONDITIONS. 63 § 63. Sale or lease — "Under statutes. — In New York, and in many other States, the statutes expressly provide for the lease of the corporate franchises and property hy one street surface rail- road corporation to another for any term of years agreed upon, without any prohibition as to parallel or competing lines. The sale of all franchises and property is also expressly permitted in some cases ; 6 but a lease or sale of such franchise and property lease in question did not, in truth, give consent, because it only author- ized the railway companies named in it to lease the lines of railway named, including the one on which plaintiff was hurt, and did not authorize a lease of the property by the United Eailways Company, which was not named. It will be seen that the third section of the city ordinance, which we have quoted, expressly authorized the lease of the line on which plain- tiff was hurt to the St. Louis Transit Company by its original Owner, one of the companies named, which one is not disclosed by the evidence. It is admitted that the United Railways Company acquired by purchase all the lines of railway owned and operated by all the railway companies men- tioned in the ordinance. " There is no sound reason for say- ing that the United Railways Com- pany, though the owner of the line pursuant to a, valid purchase, could not lease it to the Transit Company just as the original company might, pursuant to the permission given to the latter by the city. The city had authorized the Transit Company to acquire it by lease, and municipal in- terests could not be helped by per- mitting the original owner to grant the lease, and refusing to permit a lawful purchaser to do so, when the lessee, in either event, would be the same. The decisive fact bearing on this point is not, as plaintiff's coun- sel insists, that the United Railways Company received no authority to lease the line of railway on which plaintiff was hurt to the Transit Com- pany. It is that the latter was au- thorized to take a lease of it. Hence the argument that the words of the ordinance, purporting to empower the street railway companies named and ' their successors and assigns,' to lease their several railway lines, did not operate and empower the United Railways Company as purchaser of said railway lines to lease them is not relevant to the proposition that the lease is void for lack of the city's consent." 6. The New York Railroad Law, chap. 565 of 1890, art. III.; 3 Hey- decker's Gen. Laws (2d ed.) 3296- 3305. And see People, Warfield v. Sutter St. R. Co., 117 Cal. 604, 49 Pac. 736; Wright v. Milwaukee El. & R. L. Co., 95 Wis. 29, 36 L. R. A. 47, 69 N. W. 791. The Traction Companies Act }f New Jersey (P. L. 1893, p. 302; Gen. St., p. 3235) authorizing a corpora- tion organized thereunder to acquire and operate actually existing street railways with the consent of such railways, but without municipal con- sent, is not unconstitutional upon the ground that it delegates to the own- ers, lessees, or operators of a street railway, whether legally operated or not, the power of creating a franchise to operate it perpetually; or upon the ground that it violates the constitu- tional provision against private, local, 153 § 63 THE FRANCHISE CONTINUED CONDITIONS. (except, of course, the transfer of such property as will not hinder the corporation in the performance of all its duties to the public) cannot be made to a private individual. 7 When a lease is effected to an individual the law seems to treat the lessee as the agent of the railroad company for the purpose of determining controversies between the public and such company. 8 Assuming now the statu- tory authority to dispose of it, a right of way upon a public street, whether granted by act of the legislature, ordinance of city coun- cil, or in any other valid mode, is an easement, and as such is a property right capable of assignment, sale, lease, and mortgage, and entitled to the protection afforded other property rights and contracts. 9 Where, in pursuance of a statute, a street railway com- pany has purchased the property and assets of another like cor- poration, there is in the absence of evidence to the contrary, a presumption that the action of such corporation was lawful. And in such a case there is said to be still more, such a presumption in regard to the official action of a board of public officers. 10 Where or special laws granting an exclusive privilege, immunity, or franchise, or granting the right to lay down rail- road tracks. Mayor of Jersey City v. North Jersey St. Ry. Co., 72 N. J. L. 383, 67 Atl. 113, 5 St. Ey. Rep. 699. Under this statute it has been de- cided that where a lessee had obtained the consent of the company by proper lease, the fact that the lessor's fran- chise had already ceased to exist could not deprive the lessee of its powers, as its power to maintain and operate the railway was derived, not from its predecessor, but from the statute under which the lessee was in- corporated. Mayor of Jersey City v. North Jersey St. Ry. Co., 73 N. J. h. 175, 63 Atl. 906, 4 St. Ry. Rep. 761. Surrender of a lease of a street railway line there being no ground for forfeiture in any provision in the lease as to such surrender, held to be without consideration. Barrie v. United Railways Co., 138 Mo. App. 557, 119 S. W. 1020. Right of the holder of a judg- ment to recover same against pur- chasing company, see Whiting v. Maiden & Melrose R. Co., 202 Mass. 298, 88 N. E. 907. 7. Abbott v. Johnstown, etc., R. Co., 80 N. Y. 27. 8/ Durfee v. Johnstown, etc., R. Co., 71 Hun (N. Y.) 279, 281, 54 St. Rep. (N. Y.) 526, 24 N. Y. Supp. 1016; Fisher v. M. E. R. Co., 34 Hun (N. Y.) 433; Woodruff v. The Erie Ry. Co., 25 Hun (N. Y.) 246. 9. Knoxville v. Africa, (C. C. E. D. Tenn.) 70 Fed. 729; Wilkes-Barre v. Coalville Pass. Ry. Co., (Pa. C. P.) 8 Kulp 298; Bardstown & Louisville R. Co. v. Meicalf, 4 Mete. (Ky.) 199; New Orleans, S. F. & L. R. Co. v. Delamore, 114 U. S. 501, 5 S. Ct. 1009, 29 L. ed. 244. 10. Whiting v. Maiden & Melrose Railroad Co., 202 Mass. 298, 88 N. E. 907. 154 THE FRANCHISE CONTINUED CONDITIONS. § 64 the lease is authorized by statute, it may be made by the board of directors of the lessor; and the concurrence of the stockholders is not essential to its validity. 11 The New York Rapid Transit Acts do not contemplate or permit a lease in perpetuity. 12 § 64. Sale or lease — Validity of. — Where the ordinance grant- ing a street railway franchise is invalid there can be no valid assignment of the rights which it purports to grant. 13 Where a corporation, like a railroad company, has granted to it by charter a franchise intended in large measure to be exercised for the public good, the due performance of those functions being the considera- tion of the public grant, any contract which disables the corpora- tion from performing those functions, which undertakes, without the consent of the State, to transfer to others the rights and powers conferred by the charter, and to relieve the grantees of the burden which it imposed, is a violation of the contract with the State, and is void as against public policy. 14 A contract not within the scope of the powers conferred on the corporation cannot be made valid by the assent of every one of the shareholders, nor can it, by any partial performance, become the foundation of a right of action. 15 The United States Supreme Court has held that leases made with- out legislative sanction, and therefore void, cannot be enforced, even as to past-due rent, although the lessees were and still remain in undisturbed possession of the demised property. 16 Its position 11. Beveridge v. New York El. R. Middlesex B. Co. v. Boston, etc., B. Co., 112 N. Y. 1, 19 N. E. 489. Co., 115 Mass. 347; Rollins v. Clay, 12. Sun Printing and Publishing 33 Me. 132; Fietsam v. Hay, 122 111. Ass'n v. City of New York, 152 N. Y. 293, 13 N. E. 501. 257, 46 N. E. 499. 15. Thomas v. Bailroad Co., 101 13. Wilder v. Aurora & Eockford U. S. (11 Otto) 71, 25 L. ed. 950; Elec. Tr. Co., 216 111. 493, 75 N. E. Oregon Ry. & Nav. Co. v. Oregonian 194. Ry- Co., 130 U. S. 1, 32 L. ed. 837, 9 14. Thomas v. Railroad Co., 101 S. Ct. 409; Ashbury, etc., Ry. Co. v. IT. S. (11 Otto) 71, 25 L. ed. 950; Riche, L. R. 7 H. L. 653; East An- Railroad Co. v. Winans, 58 U. S. (17 glian Ry. Co. v. Eastern Co. Ry. Co., How.) 30, 15 L. ed. 27; Black v. 11 C. B. 775; Winch v. Birkenhead, Canal Co., 22 N. J. Eq. (7 C. E. etc., Co., 13 Eng. L. & Eq. 506 ; Green Green) 130; Beman v. Rufford, 1 Bay & M. R. Co. v. Union Steamboat Sim. (N. S.) 550; Winch v. Railroad Co., 107 U. S. 98, 2 S. Ct. 221, 27 L. Co., 13 L. 4 Eq. 506; Coe v. Colum- ed. 413. bus, etc., E. Co., 10 Ohio St. 372; 16. Pa. E. Co. v. St. Louis, A. & 155 § 65 THE FBANCHISE CONTINUED CONDITIONS. upon the subject is, that a contract made by a corporation, which is unlawful and void because beyond the scope of its corporate powers, does not, by being carried into execution, become lawful and valid, and that the proper remedy of the party aggrieved is to disaffirm the contract and sue to recover, as on a quantum meruit, the value of what the defendant has had of actual benefit. 17 The New York Court of Appeals has held that such an unauthorized lease, void as to the public, will be upheld, as between the parties, to the extent that so long as the occupation under the lease continued the lessee was bound to pay the rent, and its recovery might be enforced by action on the covenant. 18 § 65. Sale or lease — Rights and duties under. — An assignee or lessee of a street railroad company which accepts the transfer of all the franchises, powers, privileges, and immunities of the grantor and its line of road, and operates it for a time, thereby assumes the performance of the duties theretofore resting on its grantor. 19 So a street railway company succeeding to the rights, T. H. R. Co., 118 U. S. 290, 6 S. Ct. 1094, 30 L. ed. 83; Oregon Ry. & Nav. Co. v. Oregonian Ry. Co. Lim- ited, 130 U. S. 1, 9 S. Ct. 409, 32 L. ed. 837; St. Louis, V. & T. H. R. Co. v. Terre Haute & T. R. R. Co., 145 U. S. 393, 12 S. Ct. 953, 3 L. ed. 748. 17. Bath Gas Light Co. v. Claffy, 151 N. Y. 24, 44, 45 N. E. 390, per Vanst, J.; Pittsburgh, C. & St. L. Ry. Co. v. Keokuk & Hamilton Bridge Co., 131 U. S. 371, 389, 9 S. Ct. 802, 33 L. ed. 157; Louisiana v. Wood, 102 U. S. 294, 26 L. ed. 153; Park- ersburgh v. Brown, 106 U. S. 487, 503, 1 S. Ct. 442, 27 L. ed. 238; Chapman v. Douglas Co., 107 U. S. 348, 360, 2 S. Ct. 62, 27 L. ed. 378 ; Salt Lake City v. Hollister, 118 U. S. 256, 263, 6 S. Ct. 1055, 30 L. ed. 176. 18. Bath Gas Light Co. v. Claffy, 151 N. Y. 24, 36, 45 N. E. 390. 19. California. — Reynolds v. Pa- cific Elec. Ry. Co., 146 Cal. 261, 3 St. Ry. Rep. 31, 80 Pac. 77. Kansas. — City of Potwin Place v. Topeka Ry. Co., 51 Kan. 609, 33 Pac. 309, 37 Am. Rep. 312. Michigan,. — Wallace v. Ann Arbor El. Ry. Co., 121 Mich. 588, 80 N. W. 572. New Jersey. — State, Bridgeton v. Bridgeton & M. Trac. Co., 62 N. J. L. 592, 43 Atl. 715, 45 L. R. A. 837. New York. — Prospect Park & C. I. R. Co. v. Coney Island B. R. Co., 144 N". Y. 152, 39 N. E. 17, 26 L. E. A. 610, 63 N. Y. St. Rep. 48, 1 Am. & Eng. R. Cas. (N. S.) 222; City of New York v. Twenty-third St. Ry. Co., 113 N. Y. 311, 21 N. E. 60. Ohio. — Cincinnati Inclined Plane Ry. Co. v. City of Cincinnati, 52 Ohio St. 609, 44 N. E. 327. Pennsylvania. — City of Philadel- phia v. Philadelphia Traction Co., 206 Pa. St. 35, 1 St. Ry. Rep. 717, 55 Atl. 762; Reeves v. Philadelphia Traction Co., 152 Pa. St. 153, 25 Atl. 516, 31 W. N. C. 265, 32 Am. Law Reg. 127. 156 THE FKANCHISE CONTINUED ■ CONDITIONS. § 65 franchises, and obligations of another company stands in the shoes of the latter with respect to its duties to complete and operate an extension in accordance with a certain plan which has been Contract construed as lease. — Where a contract between two rail- way companies divested one company of the use and possession of its prop- erty, franchises, etc., for a period of forty years, in consideration of » specific rent, to be paid by the other company, and the performance by it of other duties in the nature of rent, and provided further for a restora- tion of the property to the former at the end of said term and for re-entry if the latter defaulted in the perform- ance of its covenants during the term, the contract was a lease and did not create an agency or a partnership. Moorshead v. United Railways Co., 203 Mo. 121, 100 S. W. 611, 6 St. Ry. Rep. 42. The court in this case re- ferred to the opinion of the court be- low as bearing the earmarks of thor- ough investigation. The court below ir. its opinion, reported in 119 Mo. App. 541, 96 S. W. 261, said, per Goode, J. ; " Does the contract pos- sess the elements of a lease? In this connection it is proper to remark, in the first place, that goods, chattels, and franchises may be leased as well as lands and tenements. 1 Piatt, Leases, p. 24; 1 Wood, L. & T. (2d ed.), § 202; 1 McAdam, L. & T. (2d ed.) p. 258; 1 Taylor, L. & T. (9th ed.), §§ 17, 18. The statutes of the State gave the United Railways Com- pany, including its lease, its fran- chises, railway lines and every other property, and by the same statute the Transit Company had the right to acquire every character of prop- erty belonging to the United Rail- ways Company, including its fran- chises. Rev. St. 1899, § 1187. We need not be troubled about the power of the 1 two companies to enter into a lease covering all the properties mentioned i-2 the instrument. The contract in question devested the United Rail- ways Company of the possession and use of the properties during the pe- riod named (40 years) in considera- tion of a specific rent to be paid by the Transit Company, and other duties, in the nature of rent, to be performed by the latter ; provided further for the reversion of the prop- erty to the grantor, the United Rail- ways Company, at the end of the term, and for re-entry if the Transit Company defaulted in the perform- ance of its covenants during the term. Those ingredients in the agreement suffice to constitute a lease. 1 Mc- Adam, L. & T., § 47, p. 127. The con- tract on its face shows that it was intended to be a lease and contains elements essential to constitute one. Therefore there is no reason for hesi- tating to pronounce it a lease in legal effect and only to be impeached by facts showing it was not executed in good faith. Documents of like tenor have been before courts for construc- tion several times and they were treated as leases. Mayor v. Railway, 113 N. Y. 311, 21 N. E. 60; Miller v Railway Co., 125 N. Y. 118, 26 N. E. 35; Driscoll v . Railroad, 65 Conn. 230, 32 Atl. 354; Terre Haute & T. R. v. Cox, 102 Fed. 825, 42 C. C. A. 654. In fact, most of the cases re- lied on by the plaintiff accept such contracts as leases, though for differ- ent reasons the lessors were held re- sponsible to third parties for torts of the lessees. " We are cited to the case of St. Joseph & St. L. R. R. v. St. Louis, 57 § 65 THE FEANCHISE CONTINUED CONDITIONS. approved by the municipal authorities. 20 And where the ordi- nance granting consent to the lessor company, provided that two guard wires be placed above the trolley wire to protect the same from other falling wires, the lessee company must maintain such guard wires. 21 A traction motor company which leases and operates street railway companies is subject to the operation of a Statute which provides that " the offices, etc., the superstructure of the road, and water stations alone excepted, are and hereafter shall be subject to taxation by ordinance for city purposes." 22 A street railroad company, by law forbidden to use the electric trolley system, can confer upon its lessee no greater right than itself has. And a resolution of a county board authorizing such lessee company to use " any mechanical power except steam," must be construed as meaning any power which the company could legally use, and so not to warrant the use of the trolley H. M. S. R. Co., 135 Mo. 173, 36 S. W. 602, 33 L. R. A. 607, as construing a contract like the one under review to be an agreement by » nominal lessee to operate a railway for the benefit of a nominal lessor, and hence, in legal effect, not a lease but an operating agreement. But in that case, the terms of the instrument con- strued were quite different from those of the instrument before us. The de- cision of the court that it was a mere operating contract was rested prin- cipally upon the fact of there being no stipulation for rent to be paid for the use of the property which was the subject-matter of the contract. In that case the Iron Mountain Rail- way Company, which was alleged to be a lessee of the lines of rail- way owned by the Wabash Rail- way Company, was obligated by the supposed lease to pay nothing in the way of rent except what might be earned by the operation of the roads. That is to say, the Iron Mountain Company simply took over the roads to operate and apply the earnings for the benefit of the Wabash Company. The Iron Moun- tain Company did not assume any in- dividual liability of any kind in con- sideration of the supposed lease, nor bind itself or its assets for any rent. It was for this fact that the contract between the two companies was held not to be a lease, but an operating agreement." 20. State ex rel. Waterbury v. New York, N. H. & H. R. Co., 81 Conn. 645, 71 Atl. 942. 21. Conshohocken Borough v. Con- shohocken Ry. Co., 206 Pa. St. 75, 1 St. Ry. Rep. 726, 55 Atl. 855. 22. Where a traction company whose business is confined to the con- struction of appliances for street rail- way companies or to the operation of motors, etc., for the traction of the cars of such companies leases the property and franchises of various railway corporations and operates them on its own account, it is exer- cising the franchises of a street rail- way company and enjoys the privi- leges granted to and becomes subject to the liabilities imposed by law upon such companies. City of Phila- 158 TJiE FRANCHISE CONTINUED CONDITIONS. § 65 system. 23 An ordinance authorizing the use of the trolley system by the lessor company confers such authority upon the lessee in exclusive control of the road, although not named in the ordi- nance. 24 The provision of a statute for the sale on execution of the property and franchises of corporations authorized to receive " toll " applies to street railway companies. 25 But a corpora- tion organized for the purpose of leasing street railway lines must operate them subject to the provisions of its own charter and the law under which it is organized. It cannot exercise rights which its lessor could exercise, but which it is expressly forbidden to by its charter and the general law. 26 And where a street railway company which has the right under its franchise to maintain and operate a street railway over and upon the streets of a city in- cluding a place of crossing the tracks of a railroad purchases from another street railway company all of its personal property in- cluding rails, ties, wires, poles, cars, switches, turnouts, and curves " not including the franchises, leases, contracts, or power house machinery," it does not thereby assume a contract obliga- tion of the lessor company to pay the wages of a flagman stationed at such crossing. 27 Where several independent companies were consolidated and leased by the consolidated company to another, the lease providing that upon its termination the property was to be returned to the consolidated companies in as good condition and repair as at the time of the execution of the lease, such provision was construed as requiring, upon the insolvency of the lessee and the cancellation of the lease, a return of the property in such delphia v. Philadelphia Traction Co., law, include a large class of dues 206 Pa. St. 35, 1 St. By. Rep. 717, and exactions that are in the nature 55 Atl. 762. of fixed rights and cannot be law- 23. State, Lewis, Pros. v. Board of fully exacted, and are generally, if Chosen Freeholder of Cumberland, 4 not universally, connected with some Am. Electl. Cas. 48, 56 N. J. L. 416, franchise which involves duties as 2S Atl. 553. well as privileges of a general or pub- 24. Reeves v. Philadelphia Trac- lie nature, such as those which be- tion Co., 152 Pa. St. 153, 4 Am. long to street railroads, fairs, turn- Electl. Cas. 24-. pikes and ferries." 25. McKee v. Grand Rapids & R. 26. Chicago Union Traction Co. v. L. St. Ry. Co., 41 Mich. 274, 1 N, W. City of Chicago, 199 111. 484, 65 N. E. 873, 50 N. W. 469. In the case cited 451, 59 L. R. A. 631. the court said : " Tolls, at common 27. Chicago & Northwestern Ry. 159 § 66 THE FBANCHISE CONTINUED CONDITIONS. condition to each of the independent companies equal to that re- ceived from it. 28 The lessor of a street railway company is not liable for cables purchased by its lessee in the absence of an agree- ment, express or implied, even though placed in position pur- suant to the order and direction of the lessor company. 29 § 66. Sale or lease — Fraud on stockholder — Action to enjoin. — A sale of a street railway franchise and its assets which is a fraud upon a minority stockholder and made for the purpose of eliminating him, is void. 30 So a sale of the assets and franchise of a street railway company where made at a secret meeting, of which no notice or information was given to one who had been recognized as a stockholder and who had originally obtained such franchise and assigned it to the company by a contract making , him an equitable owner of one-fourth of the road, has been held fraudulent and void without regard to the question of the com- pany's solvency. 31 An action by a stockholder of a street railroad corporation, upon a claim that he has been defrauded of a portion of his interest in the corporate assets by means of a lease made by the directors and approved by the vote of the required number of stockholders, and in which he seeks to set aside the lease, compel the transfer of all the property covered by the lease, and to require the lessee to account to the lessor for all moneys received from the operation of the road, is not for the benefit of the plaintiff alone, but is representative in character and for the benefit of the plain- tiff and all other stockholders similarly situated. Therefore a demand upon the corporation lessor to sue must be made, and an averment of such demand in the complaint, and of the refusal or unreasonable neglect to comply therewith, is essential to the maintenance of the action. 32 And where in an action by a stock- holder to enjoin the company from carrying out a lease and to Co. v. Fox Eiver Elec. Ry. & P. Co., 30. Mulverhill v. Vicksburg Ry., 119 Wis. 181, 1 St. Ry. Rep. 850, 96 P. & M. Co., 88 Miss. 689, 40 So. 647. N. W. 541. 31. Mulverhill v. Vicksburg Ry., 28. Johnson v. Lehigh Valley Tr. P. & M. Co., 88 Miss. 689, 40 So. 647. Co., 138 Fed. 601. 32. Flynn v. Brooklyn City R. Co., 29. Pennsylvania Steel Co. v. New 158 N. Y. 493, 53 N. E. 520. York City Ry. Co., 172 Fed. 659, 97 C. C. A. 185. 160 THE FKANCHISE CONTINUED CONDITIONS. § 67 have the same set aside, the objection to the acts of the corporation is that such act is ultra vires, -without being either mala prohibita or mala in se, he cannot maintain the action on his own behalf, based on such objection, where he himself, with knowledge of the character of the acts, has acquired and accepted pecuniary benefits thereunder. And such a defense is held to be available notwith- standing the fact that the plaintiff did not receive such pecuniary benefit until after the commencement of the action. 33 § 67. Sale by receiver — Statute as to — Rails personal prop- erty. — Under a statute providing that a receiver of a street rail- way company may sell the property, road, locations, and fran- chises of the company under an order of the court and that the purchaser shall within a certain time after the sale organize a corporation to hold, own, and operate the railway purchased and that if he fails to do so all rights to operate the road shall there- upon cease, a failure of the purchaser to organize such a corpora- tion does not affect his title to the property, he being under no duty to use the tracks for the operation of the road, and the rails laid in the streets are personal property. And though under the ordinances of the city it may be necessary to obtain a license to dig up the streets to remove the rails, yet the official having the power to grant the license cannot arbitrarily refuse to issue it because he hopes that some other person or corporation will operate cars over the tracks. He must grant or refuse the permit in the exercise of a legal discretion and may be compelled by mandamus to hear and determine the application therefor without regard to his hopes in respect to the operation of the road by another. 34 A street railway obtains no easement or freehold interest in the soil of the streets. It merely obtains a right to use the way within its location in common with others and not exclusively for its own benefit. It is therefore held to follow that rails laid as a part of a street railway company's track do not lose their character as personalty and become realty by the fact of their annexation to 33. Wormser v. Metropolitan St. 34. French v. Jones, 191 Mass. Ey. Co., 184 N. Y. 83, 76 N. E. 1036; 522, 5 St. Ey. Eep. 452, 78 N. E. 118. affg. 98 App. Div. (N. Y.) 29, 90 N. Y. Supp. 714. 11 161 § 68 THE FRANCHISE CONTINUED CONDITIONS. the soil of the street. And in the application of this doctrine it has been decided that where rails have been supplied to a street railway company under a contract providing that they are to re- main the property of the vendor until paid for, the latter may maintain replevin to recover such rails or tort in the nature of trover for their conversion, even as against a purchaser for value and without notice under a foreclosure sale under a mortgage, it not appearing that the vendor has waived performance of the condition. 35 ♦ § 68. As to mortgages. — A street railway company cannot without statutory authority alienate its franchise and cannot there- fore, in the absence of authority, mortgage its franchise since such an instrument may culminate in the absolute alienation of the property. 36 As to materials that are affixed to and made a part of a street railroad which is subject to a mortgage, both present and future property will be subject to the lien of such mortgage in favor of bona fide mortgage bondholders, in superior- ity to any contract between the vendor of the materials and the railway company. 37 The implied agreement on the part of mort- gagees that the current debts of a street railroad company con- tracted in the ordinary course of the business of such company, shall be paid from its current earnings and shall become a charge in equity upon the continuing income of the company, both before and after the- appointment of a receiver, whether or not there has been a previous diversion of the income for the benefit of the mortgagees, does not admit of an application of the proceeds of the sale of the mortgaged property to the payment of sums due employees and those who have furnished supplies to keep the rail- road in operation, when there has been no diversion of the earn- ings of the company to the benefit of the mortgagees. 38 35. Lorain Steel Co. v. Norfolk & Rep. 742, citing Hovelman v. Rail- Bristol St. Ry. Co., 187 Mass. 500, road, 79 Mo. 643. 73 N. E. 646. 37. Haynes v. Kenosha Electric 36. Kavanaugh v. St. Louis, 220 Ry. Co., 139'Wis. 227, 119 N. W. 568, Mo. 496, 119 S. W. 552. Compare 121 N. W. 124. State esc rel. Kansas City v. East 38. Mersick v. Hartford & West Fifth St. Ry. Co., 140 Mo. 539, 41 S. Hartford H. R. Co., 76 Conn. 11, 1 W. 955, 38 L. R. A. 218, 62 Am. St. St. Ry. Rep. 37, 55 Atl. 664. 162 THE FBANCHISE CONTINUED CONDITIONS. 69 § 69. Sale or lease — Rights of mortgagee. — Though a mort- gagor or owner of premises subject to a mortgage has the power to manage, control, and dispose of the mortgaged property, a mort- gagee is, however, entitled to relief against the mortgagor or his assigns, owners of the mortgaged premises or lessees thereof, where their acts, if carried out according to contracts and proposed plans, will operate to depreciate the value of the property upon which the mortgage is a security. So where a mortgage of the plant and franchises of a street railway corporation includes a plot of land, of which the railway corporation executed a lease, if the execution of the plan proposed by the lease and the contract between the owner and lessee will tend to diminish the power of the railway company to operate its plant under its franchises with profit, the mortgagee is entitled to relief. Thus a case is presented which justifies the granting of relief to a mortgagee where it appears that the lessee proposes to make use of the leased plot in connec- tion with the passenger traffic in such a way as to compete with the traffic carried on by the railway corporation. 39 Such a mort- gagee, however, accepts the security as it was when the mortgage was made, and while he may have been influenced in accepting it by a reasonable expectation that the interest of the mortgagor would require betterments which would increase his security, yet he acquires no right to require any such betterments and has no ground for complaint of a lease of part thereof on the ground that thereby the railway corporation has debarred itself from enlarge- ment of its terminal facilities although such enlargement seems to be desirable and is claimed to be necessary in the near future. 40 39. Fidelity Trust Co. v. Hoboken result in preventing or diminishing & M. R. Co., 71 N. J. Eq. 14, 4 St. the power to make profitable use of Ry. Rep. 738, 63 Atl. 273. The court the plant under the franchises, a case said : " When the mortgagee's secu- is made which, in my judgment, jus- rity is upon the plant and franchises tines the intervention of the mort- of a corporation engaged in the quasi- gagee and requires this court to in- public business of carrying passen- tervene to protect his interests. It gers by means of the mortgaged prem- is unnecessary to add that » trustee ises, and when it is made to appear holding a mortgage in trust for bond- that a cause of conduct is threatened holders is entitled to similar relief." by the mortgagor, and others with Per Magie, Ch. the mortgagor's connivance and con- 40. Fidelity Trust Co. v. Hoboken sent, and about to be pursued, which, & M. R. Co., 71 N. J. Eq. 14, 4 St. it may reasonably be inferred, may Ry. Rep. 738, 63 Atl. 273. 163 § 70 THE FRANCHISE CONTINUED CONDITIONS. § 70. Abandonment or revocation of franchise. — While the mu- nicipality cannot by contract with the railroad company divest itself of its control over streets and of its right and duty to adopt ordinances and measures in the nature of police regulations, it cannot, without an express reservation to that effect, in the ordi- nance granting the right to construct and operate a street railroad which the company has accepted as its franchise, impose ad- ditional obligations or materially change its provisions in any respect against the will of the company. It cannot recall or re- voke the accepted franchise after the grantee has in good faith begun to exercise its powers and perform its duties thereunder. 41 The word " State " as used in the Constitutional provision that "no State shall pass^any law impairing the obligation of con- tracts," includes the word " city," and where a franchise granted by a city council to a street railway company constitutes a con- tract the city cannot by any subsequent enactment impair the obligation thereof. So, where a street railway company has been granted by ordinance a perpetual franchise to lay its tracks in certain streets, which franchise is in the nature of a contract, a court of equity will grant an injunction restraining the enforce- ment of a resolution of a subsequent city council treating the rail- road company as a trespasser and requiring it to remove its tracks from the city streets. 42 But, if the company does not comply with the condition imposed by the consent of the local authorities, its franchise may be revoked; and such revocation will deprive the company of authority to build the road. 43 If the failure to per- form the condition is caused by injunction or interference of the police officers acting under the direction of the mayor, the license 41. People v. Chicago W. Div. R. pany is granted by the State, it can Co., 118 111. 113, 7 N. E. 116; Elec- be abandoned only in the same way trie Ry. Co. of Grand Rapids v. Com- as any other corporate franchise mon Council of Grand Rapids, 84 granted by the State. Africa v. Mich. 257, 47 N. W. 567; Lavis v. Knoxville, (C. C. E. D. Tenn.) 70 Newton, (C. C. S. D. Iowa) 75 Fed. Fed. 729. 884; Workmen v. Southern Pac. R. 42. Des Moines City Ry. Co. v. Co., 129 Cal. 536, 62 Pac. 185, 316; City of Des Moines, 151 Fed. 854, 5 Western Pav. & Sup. Co. v. Citizens' St. Ry. Rep. 281. St. Ry. Co., 128 Ind. 525, 26 N. E. 43. Plymouth Tp. v. Chestnut Hill 188, 10 L. R. A. 770. Where the & N. R. Co., 168 Pa. St. 181, 32 Atl. franchise of a street railroad com- 19, 36 W. N. C. 317. 164 THE FRANCHISE CONTINUED CONDITIONS. § 70 or franchise is not revoked. 44 An easement granted for a par- ticular purpose ceases when its use for such purpose is or becomes impossible under the terms of the grant. 45 Under a statute pro- viding that all legislative power of the city shall be vested in a mayor and city council, the city has a right to accept the voluntary surrender of a street railroad franchise. 46 But it cannot make a contract with the company to the effect that nonuser of street rail- way tracks for a specified time shall not operate as a forfeiture of the franchise, since this would involve authority to grant the right to use the streets for a private purpose. Entire failure to operate a street railway for three years, when the ordinance under which the franchise is exercised requires cars to run sixteen hours every day in the year, constitutes a nonuser which forfeits the franchise. 47 But the abandonment by a street railway company of a part of its route is not shown by evidence merely that only one car a day is being run over such portion, there being no proof that the public convenience was in any way affected by such a course. The fact of the running of a single car is of itself in- dicative of a purpose not to abandon the same. 48 And the aban- 44. Chicago v. Chicago, etc., R. revocation of the ordinance granting Co., 105 111. 73. And see Scranton the permission, where the city had Ey. Co. v. City of Scranton, (Pa. C. doubled its population and many P.) 5 Lack. Leg. N. (Pa.) 250. other changes had been made render- 45. As, where an easement to lay ing the performance of such contract and maintain a railroad track in a, detrimental to the public. See St. street is granted by a city on con- Louis, etc., E. Co. v. St. Louis, 81 dition that animal power only should 111. App. 109. be used to move the cars thereon, and See as to revocation of consent of because of the grade of the street use property owners under New Jersey of animal power for the purpose in- statute of April 21, 1896, Hutchinson tended was impracticable, the ease- v. Borough of Belmar, 61 N. J. L. ment is therefore at an end, and the 443, 39 Atl. 643; affd., 62 N. J. L. city may require the track to be re- 450, 45 Atl. 1092. moved. So. Ey. Co. v. Memphis, 46. Wood v. Seattle, 23 Wash. 1, (Tenn.) 97 Fed. 819, 38 C. C. A. 498; 62 Pac. 135. decree modified, (1889) 99 Fed. 170, 47. State, Kansas City v. East 39 C. C. A. 451. Fifth St. E. Co., 140 Mo. 539, 3 L. An agreement by the city to per- R. A. 218, 41 S. W. 955. mit a street railroad company to lay 48. Forty-Second St., M. & St. N. its tracks in specified streets will not A. E. Co. v. Cantor, 104 App. Div. be specifically enforced after the lapse (N. Y.) 476, 4 St. Ey. Eep. 873, 93 of more than ten years from the N. Y. Supp. 943. 165 § 71 THE FBANCHISE CONTINUED CONDITIONS. donment of a portion of a road to which consents of abutting owners have attached by a receiver of the company appointed in proceedings for the foreclosure of a mortgage, under an order limiting its authority to the management, operation, and protec- tion of the company's property, cannot affect the rights acquired under such consents. The street being occupied under a public franchise cannot be abandoned without the consent of the State, the company, and its stockholders, and the consents of abutting owners will survive* the reorganization of the company and pass to its successor in title. 49 § 71. Expiration of franchise and renewal. — The duration of a street railway franchise which is not granted for any specified term is limited by the life of the municipality by which it is granted. 50 A franchise for a term of years, unless renewed, ter- minates at the expiration of the term, although the charter of the company declares it to be " a body politic and corporate in per- petuity," where the consent of the common council is made a condition precedent to the right to exercise the franchise. 51 And by consenting during the term to a large expenditure of money upon the part of the railroad company (as by the substitution of electricity for animal power) the city is not estopped to assert the expiration of the franchise. 52 Where the concurrent action of two city boards is necessary to the renewal of a street railroad grant, consent by one of them cannot be effective as a renewal by implication. 53 If a grant is made for a term exceeding the statu- 49. Paige v. Schenectady Ry. Co., 709, 2 So. 388. In the case first 178 N. Y. 102, 2 St. Ey. Eep. 768, 70 cited it was also held that the fact N. E. 213. ' that no limitation is imposed upon 50. Blair v. City of Chicago, 201 the duration of the corporate fran- U. S. 400, 26 S. Ct. 427, 50 L. ed. chise of the railroad company does 801 ; revg. decree in Govin v. City of not make the term for which it holds Chicago, 132 Fed. 848. its street grants likewise unlimited; 51. City R. Co. v. Citizens' St. R. and that a grant to use certain streets Co., 52 N. E. 157; Hannum v. Media, disused for a period of over twenty etc., Co., (Pa. C. P.) 8 Del. Co. Rep. 91. years and a selection of another route 52. Louisville Trust Co. v. Cincin- is an abandonment of the franchise nati, (C. C. App. 6th C.) 47 U. S. as to the streets not actually used. App. 36, 22 C. C. A. 334, 76 Fed. 296, 53. Cincinnati Inc. Plane R. Co. v. 73 Fed. 716; Canal, etc., St. R. Co. Cincinnati, 52 Ohio St. 609, 44 N. E. v. City of New Orleans, 39 La. Ann. 327. 166 THE FRANCHISE CONTINUED CONDITIONS. § 71 tory limit it will be effective during the period permitted by stat- ute, and will then, unless renewed, terminate by operation of law. 54 The consent of the abutting property owners is not re- quired for an extension or renewal of the franchise. 55 Where, by municipal ordinances, the life of the franchise of a main line of a railway system is extended, such ordinance will not be con- strued as applicable to a branch line of such system which has a separate route and a different term of life though the latter is permitted to run in connection with the main Hue and to use a portion of such line. 56 Where a street railway franchise is granted giving the company the power to maintain and operate its tracks upon such streets and highways in the city as may be designated by the company in its written acceptance of the fran- chise, . " and upon such other streets and public places as said council may, from time to time, by resolution designate," the designation of new streets for the use of the company is not the grant of a new franchise and does not require the giving of the notice required by statute in the case of the granting of a new one. 57 A statute requiring that an ordinance granting, or extend- ing the term of, a franchise for a street railway must, if de- manded, be submitted to a popular vote of the electors and further providing that it does not apply to " the extension of any existing line or system * * * if the term of such extension expires at the same time as the franchise of which it is a part," is limited in its application to the case of an ordinance granting either an original franchise or which extends the term of an existing one and does not require the submission of an ordinance which grants an extension of existing lines to other streets to expire at the same time as the original franchise. 58 Whenever in the opinion of the local authorities the public would be benefited they may, by agree- ment with the grantee, terminate a franchise previous to its ex- piration or renew it for any period not in excess of the statutory 54. Sommers v. Cincinnati, 8 Am. 202, 51 L. ed. 399, 5 St. Ey. Rep. L. Rec. 612. 810. 55. Clement v. Cincinnati, 16 W. 57. Thurston v. Huston, 123 Iowa L. B. 355; State, Hadden v. E. Cleve- 157, 2 St. Ry. Rep. 260, 98 N. W. 637. land R. Co., 6 Ohio C. C. 318. 58. State v. Common Council of 56. Cleveland Electric Ry. Co. v. City of Wauwatosa, 124 Wis. 451 Cleveland, 204 U. S. 116, 27 S. Ct. 102 N. W. 894. 167 § 72 THE FEANCHISE CONTINUED CONDITIONS. limit. 59 A renewal of a franchise to lay street railway tracks in a certain street will operate as a waiver of a failure of the company to lay tracks in such street under the original franchise. 60 § 72. Forfeiture. — The rights under a street railroad franchise granted by a city cannot be forfeited, except for the cause and in the mode prescribed in the franchise, where the act authorizing the city to grant the franchise makes no restriction. 61 And where 59. The City Ry. Co. v. Citizens' St. R. Co., 166 U. S. 557, 17 S. Ct. 653, 41 L. ed. 1114. In the case cited, the court, per Mr. Justice Bkown, said : " The original ordinance of January 18, 1864, was plainly a proposition on the part of the city to grant to the company the use of its streets for thirty years, in considera- tion that the company lay its tracks and operate a railroad thereon upon certain conditions prescribed by the ordinance. This proposition, when ac- cepted by the company, and the road built and operated as specified, be- came a contract which the State was not at liberty to impair during its continuance; but if, at the expiration of the thirty years, the road had been sold to another company, and that company had applied for and obtained from the common council a franchise to occupy its streets for another period, it seems to be clear that Such a contract would need no further con- sideration to support it than the con- tinued operation of the road under such conditions as the city chose to impose. But this is practically such a case, since it makes no difference in principle whether the road passes into the hands of » new company or is retained by the old one, or whether the extension is granted at the time of or before the original franchise ex- pired. In either case the considera- tion, viz., the continued operation of the road, is %he same. If, instead of extending the original ordinance, this ordinance had been surrendered by the company, and a new one had been enacted by which the franchise was extended, it would hardly be con- tended that the continued operation of the road would not be sufficient consideration for the new ordinance." A railroad company was originally chartered for thirty years only, and solely for the purpose of building and using a horse railroad in the city of Augusta, with the consent of the city council, which consent it had obtained for the thirty years. By an act con- tinuing the charter it was expressly provided that it should not have the effect or be construed to extend or continue in force the several amend- ments of the original charter, or the ordinances and contract by which the original consent of the city was given. Held, that the consent of the city must be obtained for the renewal. Augusta & S. R. Co. v. Augusta, 100 Ga. 701, 28 S. E. 126. 60. City of Akron v. Northern Ohio Tr. & L. Co., 27 Ohio Cir. Ct. Rep. 536. 61. Dern v. Salt Lake City R. Co., 19 Utah 46, 56 Pac. 556; Potter v. Collis, 156 N. Y. 16, 50 N. E. 413, affg. 19 App. Div. (N. Y.) 392, 46 N. Y. Supp. 471. A city in granting a franchise to a street railroad to occupy its streets may stipulate that it shall be void if default is made in the payment of 168 THE FKANCHISE CONTINUED CONDITIONS. § 72 it is stipulated in the franchise or license that upon breach of con- dition the municipality may resume control of the streets, posses- sion thereof cannot be taken by force against the resistance of the licensee. 62 "Where an ordinance granting a right to construct a street railway provides for forfeiture of the franchise in case of a failure to comply with certain conditions imposed thereby a substantial performance by the company of the contract as a whole is not sufficient. 63 The power of a State to proceed against a street railway company by quo warranto for forfeiture of its franchises cannot be contracted away or abridged by a city. Therefore a provision in an ordinance giving such a company, the right to use the streets for the construction of its railway that a forfeiture of the franchise " may be had by proceedings instituted by said city in its own name," is held to at most, only provide the city with another remedy. 64 Where an ordinance granting a franchise to a street railway company which contains no provisions for a for- feiture by the city, has been accepted by the company, the rights thereby conferred become vested and can only be declared forfeited by a court of competent jurisdiction in a suit brought for that the company's share of street paving a nominal consideration within a improvement. Union St. R. Co. v. week after its passage, if the com- Snow, 113 Mich. 694, 4 Det. Leg. N". pany lie by for ten years, during 455, 71 N. W. 1073. which time the city doubles in popu- 62. Iron Mt. R. Co. v. Memphis, lation, extends its streets, erects a 37 C. C. A. 410, 96 Fed. 113. A public school building abutting on municipality will be restrained from the line of the streets, and citizens adopting an ordinance whereby it is build residences along the same, it sought to forfeit the rights and fran- cannot restrain the city by action in ehises of a street railroad company equity from preventing the building on the ground that it has failed to of the road. See St. Louis, etc., Ry. operate a continuous line of road or Co. v. City of East St. Louis, 102 111. run its cars as stipulated, where its 433, 55 N. E. 533; Easton, etc., Ry. failure is due to its inability to ob- Co. v. Easton, 133 Pa. St. 505; Ashe- tain the continuous right of way for ville St. Ry. Co. v. Asheville, 109 N. which it is diligently negotiating, C. 688, 14 S. E. 316;, Young v. Maga- with prospects of success. New Jer- zine St. R. Co., 24 La. Ann. 53. sey St. Ry. Co. v. Inhabitants of 63. Wheeling & E. G. R. Co. v. South Orange Tp. (N. J. Ch.), 43 Town of Triadelphia, 58 W. Va. 487, Atl. 53. And see Noyes v. Anderson, 52 S. E. 499. 124 N. Y. 175, 26 N. E. 316. But 64. State ex rel. Kansas City v. on the repeal of an ordinance au- East Fifth St. Ry. Co., 140 Mo. 539 thorizing the company to operate a 41 S. W. 955, 38 L. R. A. 218 62 street railroad over certain streets for Am. St. Rep. 742. 169 § 72 THE FRANCHISE CONTINUED CONDITIONS. purpose. 65 Proceedings must be had in a competent court or before that officer or body authorized by law to determine and declare the forfeiture. 66 Where the right to enforce the forfeiture is purely statutory and the statute prescribes the procedure there- for and the court to control it, the forfeiture must be sought in such court and in the manner prescribed, and the complaint must show on its face corporate acts or omissions such as not only put the company in the wrong, but such as were either voluntary or negligent, and so material a disobedience of the public will as within established rules to warrant a judgment of dissolution. 67 Failure of the railroad company to complete a road in territory described in an unconstitutional section of its charter is not a cause of forfeiture. 68 And as a general rule a forfeiture for nonuser or for misuser, temporary in its character, although con- tinuing for a number of years, will not be adjudged against a street railroad company which has in good faith exercised a por- tion of the powers and rights conferred upon it, and has been discharging some of its duties to the public. Thus, where the franchise granted is conditioned upon the laying of double tracks in certain streets, and the company for a series of years operated but one therein, unless the circumstances show a wilful intent to .disregard the company's obligation to the public, a forfeiture will not be declared therefor. 69 In a proceeding to forfeit its charter 65. Spencer v. City of Palestine, and lawful business for at least one (Tex. Civ. App. 1909) 116 S. W. 857. year as a cause of forfeiture. The 66. Attorney-General v. Chicago, complaint was held insufficient. And etc., R. Co., 112 111. 520; State, At- see Wright v. Milhau El. R. & L. Co., torney-General v. Madison St. Ry. 95 Wis. 29, 36 L. R. A. 47, 69 N. W. Co., 72 Wis. 612, 40 N. W. 487 ; Reid 791 ; Matter of C. I., F. H. & B. R. v. Omnibus R. Co., 33 Cal. 212; Mat- Co. v. Kennedy, 15 App. Div. (N. Y.) ter of Brooklyn El. R. Co., 125 N. Y. 588, 44 N. Y. Supp. 825. 434, 26 N. E. 474; Matter of Kings 68. Bohmer v. Haffen, 161 N. Y. Co. El. R. Co., 105 N. Y. 97, 13 N. 390, 55 N. E. 1047. E. 18; Wilmington City Ry. Co. v. 69. H«stonville, etc., Ry. Co. v. Wilmington & B. S. R. Co., 8 Del. Philadelphia, 89 Pa. St. 210; Ranson Ch. 468, 46 Atl. 12. v. Citizens' Ry. Co., 104 Mo. 375, 16 67. People v. Atlantic Ave. R. Co., S. W. 415; People's Pass. Ry. Co. v. 125 N. Y. 513, 26 N. E. 622. In the Philadelphia, 14 Phila. 231 ; Philadel- case cited, nonuser for five days was phia, etc., R. Co. v. Williams, 54 Pa. eharged. The Civil Code, § 1785, pre- St. 103 ; City of Elmira v. Maple scribed a suspension of its ordinary Avenue R. Co., 4 N. Y. Supp. 942; 170 THE FRANCHISE CONTINUED CONDITIONS. § 73 the company may interpose as a defense the fact that it was pre- vented from constructing its track by an injunction issued at the instance of a third party, or in any other way it may show that its neglect or omission to perform a duty imposed by the franchise was not intentional and wilful on its part ; 70 but it cannot pre- vent the city from declaring its franchise to occupy the streets forfeited under an option reserved by the ordinance granting the franchise, in case of the company's default in the payment of pav- ing expenses, upon the ground of its insolvency and inability to pay such expenses. 71 Where a clause of a franchise granted pro- vided that a street railroad company should forfeit the " road " to the city in one year after it ceased to operate it, a forfeiture in- cludes the rails as well as the franchise and may be judicially enforced; the clause does not provide a penalty or liquidated damages. 72 Where the ordinance granting a franchise to construct and operate a street railway provides that non-compliance with its provisions shall, after a certain number of days' notice, operate as a forfeiture of the rights granted, it is essential to a right to forfeit the same that the notice required be given. 73 § 73. Forfeiture — How waived. — The breach of any condition imposed by a municipality in granting a franchise, or license, to State ex rel. St. Charles St. R. Co. v. construction of its way within the Cockran, 25 La. Ann. 356; Henderson time limited by statute, its rights, v. Central Pass. Ry. Co., 21 Fed. 358. privileges, and franchises are for- But in the case last cited there was feited, although it had been restrained a nonuser for more than ten years from completing the road by injunc- without the consent of the State or tion, on account of its failure to se- local authorities, and it was held cure the consent of the abutting that such nonuser was sufficient evi- property owners. Commonwealth v. dence of abandonment of the right in Middletown El. R. Co., 2 Dauph. Co. the streets not used, although it ap- Rep. 316, 23 Pa. Co. Ct. 262. peared that the patronage along the 71. Union City R. Co. v. Saginaw, abandoned route was insufficient to 113 Mich. 694, 4 Det. Leg. N. 455, 71 recompense the company for the out- N. W. 1073. lay necessary to build, equip, and 72. Tower v. Tower & S. St. R. operate the road. And see Gerard Co., 68 Minn. 500, 38 L. R. A. 541, College Pass R. Co. v. Thirteenth St., 71 N. W. 691. etc., Ry. Co., 7 Phila. 620. 73. City of Akron v. Northern 70. State, St. Charles St. R. Co. Ohio Tr. & L. Co., 27 Ohio Cir. Ct. v. Cockran, 25 La. Ann. 356. If a Rep. 536. railroad company fail to complete the 171 § 74 THE FRANCHISE CONTINUED CONDITIONS. a street railroad company to occupy any street in the city, 'which might work a forfeiture of the grantee's right, may be waived by the municipality. 74 If the condition broken be a subsequent one, that is, a condition which attaches only after a material part of the road is constructed and operated, the municipality will be presumed to have waived the breach, unless it moves with reason- able promptitude and before such expenditures have been made by the railroad company as would make the declaration of the forfeiture an inequitable act. 75 A municipality, however, does not waive the forfeiture of the franchise in the streets for non- performance of conditions subsequent, by its simple failure to take any action to remove the tracks after the breach of the con- dition, or take any proceedings to have the franchise declared for- feited, where the circumstances show that the franchise is held, not for the convenience of the public, but to prevent facilities for travel and enforce patronage upon another line of the company. 76 § 74. Forfeiture — Whether clause as to is self -executing. — A statutory provision that, if a street railway line is not constructed and put into operation within a certain time after its certificate of incorporation is filed " its corporate existence and powers shall 74. Chicago City Ry. Co. v. Peo- Ind. 587, 13 N. E. 55, 30 Am. & Eng. pie, 73 111. 541. R. Cas. 616. 75. New Orleans, etc., R. Co. v. 76. People, Warfield v. Sutter St. New Orleans, 44 La. Ann. 748, 11 So. R. Co., 117 Cal. 604, 49 Pac. 736. 77. It should be remembered, how- In the case cited, n appeared that a ever, that considerations of policy track in a thickly-settled portion of and justice both demand that the the city had been laid for more than duty of a street railroad company, six years, and practically not oper- in regard to the proper construction ated except by running one car over of its road, should be rigidly en- it every day for the purpose of pre- forced, particularly where no com- serving the franchise. It was held, pensation is paid to the municipality in an action for a judgment declaring oi to the abutting owners for the the franchise forfeited because of use of the street by the company and failure to comply with the conditions, where such use impairs the free pub- that the city was not estopped by lie use of a street. See Fitts v. laches, and that because it appeared Cream City R. Co., 59 Wis. 323, 18 the company wilfully ignored its N. W. 186, 15 Am. & Eng. R. Cas. duty to the public and sought only 462; Birmingham Union R. Co. v. its own advantage, the court might, Alexander, 93 Ala. 133, 9 So. 525; in declaring the forfeiture, impose Citizens' St. R. Co. v. Twiname, 111 the maximum fine. 172 THE FBANCHISE CONTINUED CONDITIONS. § 75 cease," is held to be self-executing, and its franchise to become abrogated upon such a failure. 77 But a provision in a statute that the franchise " may be forfeited " is held not self-executing, but to provide for the abrogation of the franchise after judicial proceedings. 78 § 75. Forfeiture — Who may raise question of. — Ordinarily, proceedings must be taken on behalf of the State to establish and enforce the forfeiture, and until the State thus intervenes, a private individual cannot set up the forfeiture or in any way challenge the corporate existence. 79 A street railway franchise while granted by the city is in fact granted by the State through the agency of the city. In the granting of such a franchise the State acts through the city. But where the state simply confers upon a city the authority to grant such a franchise, but confers no power to institute and maintain an action to forfeit its fran- chise for misuse or abuse or abandonment, the remedy for a for- feiture is a direct proceeding in quo warranto. 60 Such a for- feiture cannot be decreed in a suit in equity brought by the city, 77. Matter of Brooklyn, Queens forfeit the franchise over the road so County & S. E. Co., 106 App. Div. as to prevent the relaying of the (N. Y.) 240, 94 N. Y. Supp. 113, 4 tracks. Grelford v. C. I. & B. R. Co., St. Ry. Rep. 878. 6 App. Div. (N. Y.) 204, 40 N. Y. 78. Matter of Brooklyn, Queens Supp. 1150. County & S. R. Co., 106 App. Div. Failure to proceed to con- (N. Y.) 240, 94 N. Y. Supp. 113, 4 struction. — In Illinois the rule is St. Ry. Rep. 878. that whether the alleged failure of a 79. Matter of Brooklyn El. R. Co., railroad company to proceed to the 125 N. Y. 434, 26 N. E. 474. In the construction of its railway within the case cited, it was held that the fact time specified by the Railroad Law of that the company had made default that State shall operate to defeat the ard forfeited its lights was no an- grant of corporate power can only be swer or defense in proceedings on the determined by a direct proceeding in part of the company to acquire title behalf of the State and cannot be to the lands for the purposes of its raised and urged by a private indi- road. vidual. Thomas v. South Side Elev. The removal of railroad tracks R. Co., 218 111. 571, 75 N. E. 1058. from a highway and the abandon- 80. Kavanaugh v. St. Louis, 220 ment of the operation of the road Mo. 496, 119 S. W. 552; Milwaukee operates merely as a cause of for- Elec. Ry. & L. Co. v. City of Mil- feiture of which the people alone can waukee, 95 Wis. 39, 69 N. W. 794, 36 take advantage, and does not of itself L. R. A. 47. 173 § 76 THE FRANCHISE CONTINUED CONDITIONS. but must be adjudged in an action in tbe name of the State. 81 And the existence of a corporation or its right to exercise its cor- porate franchises cannot be inquired into or attacked collaterally. 82 So in an action pf assumpsit against a street railway company to enforce the covenants of a written agreement between it and the plaintiff, a bridge company, it was decided that the defendant could not set up as a defense the fact that a city had purchased the entire stock of the plaintiff, and had continued the corporate existence of the bridge company without authority in law. 83 § 76. When specific performance of contract for mutual co-opera- tion in securing franchise will be refused. — A contract between two persons for mutual co-operation in securing a franchise for a street railway, and the equal division of what may be realized from the enterprise, will not be enforced in equity by decreeing that one of the persons who has been excluded by the other from the benefit of the franchise, which was granted to the latter by the city with a knowledge of all the facts, shall have a one-half in- terest in the franchise, property, and stock of the corporation to which the franchise was granted, but he will be left to his remedy at law. 84 81. Milwaukee Elec. Ry. & L. Co. 83. Monongahela Bridge Co. v. v. City of Milwaukee, 95 Wis. 39, 69 Pittsburg & Birmingham Tr. Co., 196 N. W. 794, 36 L. E. A. 47. Pa. St. 25, 46 Atl. 99, 79 Am. St. 82. Monongahela Bridge Co. v. Bep. 685. Pittsburg & Birmingham Tr. Co., 196 84. Hyer v. Richmond Traction Pa. St. 25, 46 Atl. 99, 79 Am. St. Co., 168 U. S. 471, 18 S. Ct. 114, 42 Rep. 685. L. ed. 547. 174 EIGHTS 1ST STREETS ABUTTING OWNERS. § 77 CHAPTER IV. Rights in Streets; Abutting Owners. , Section 77. Unauthorized use of highway a nuisance — Remedies for. 78. Same subject — As affecting abutting owners. 79. Eights of public in streets. 80. Rights of abutting owners in streets. 81. Encroachments on highway by abutting owner — Rights of rail- way company to remove. 82. Street railway not additional servitude. 83. Railway in street — Carrying of freight. 84. Interurban railways — Whether additional servitude. 85. Rule as to street railways applicable to subways. 86. Taking of abutting owners' property — Rule in New York. 87. Remedies of abutting owners — Injunction. 88. Remedies of abutting owners — Injunction — Parties. 89. Remedies of abutting owners — Injunction — Acquiescence — Laches. 90. Remedies of abutting owners — Damages. 91. Discharge of surface water on land of abutting owner. § 77. Unauthorized use of highway a nuisance — Remedies for. — Street railway companies, like other corporations, only possess such powers and privileges as are conferred upon them by the act of the legislature under which they are incorporated or by the municipal or other local authorities in the exercise of the powers conferred upon them. They are required to assert their charter rights in an orderly and lawful manner. They cannot violently take possession of public highways or private property and appro- priate either or both to their corporate use. 1 The construction or operation of a railroad in a public street or highway, without the consent of the " local authorities," is a nuisance. 2 A railway 1. Mauat v. Pennsylvania & M. St. Co., 80 Kan. 413, 6 St. Ry. Rep. 364, Ry. Co., 219 Pa. St. 568, 5 St. Ry. 102 Pac. 492; Burlington v. Pa. R. Rep. 813, 69 Atl. 80. Co., 56 N. J. Eq. 259, 38 Atl. 849. Abatement as a nuisance of A street railway built without the unlawful constructions by a permission of township authorities as railway. — See note, 5 St. Ry. Rep. required by law constitutes a nui- 12 et seq. sance which equity may abate as it 2. Longenecker v. Wichita R. & L. does not follow from the fact that 175 § 77 EIGHTS IN STEEETS • ABUTTING OWHEES which is built in a highway, without authority of law, is not right- fully there and the public has a right to have it removed whether it be called an encroachment, an obstruction, or a nuisance. 3 Redress against such a nuisance is had by indictment, 4 by action instituted by the municipality, or authorities having charge of the highway, 5 or by proceedings at the instance of the attorney- general. 6 If railroad tracks are unlawfully laid in the street, the local authorities controlling the street may remove them by force ; nevertheless, the right so to do does not constitute that adequate remedy at law which excludes equitable relief. 7 If a company has a franchise to lay a railway to be operated by one motive power only, and constructs its road for the use of an entirely different power, the local authorities cannot abate the road as a nuisance ; but they may compel the company to operate it by the authorized motive power. 8 The term, "local authorities" with whose consent street railroad companies are authorized to construct the use of highways by street rail- ways may be a legitimate use and creates no additional servitude upon the land of the abutting owner that one unlawfully constructed is not a nuisance. Bangor Township v. Bay City Traction & El. Co., 147 Mich. 165, 5 St. Ry. Rep. 499, 110 N. W. 490. 3. Bangor Township v. Bay City Traction & El. Co., 147 Mich. 165, 5 St. Ry. Rep. 499, 110 N. W. 490. 4. Commonwealth v. Old Colony, etc., R. Co., 14 Gray (Mass.) 93; Pittsburgh, etc., R. Co. v. Common^ wealth, 101 Pa. St. 192, 10 Am. & Eng. R. Cas. 321; Larimer & L. St. Ry. Co. v. Larimer St. Ry. Co., 137 Pa. St. 533, 20 Atl. 570; State v. Louisville & N. R. Co., 91 Tenn. 445, 19 S. W. 229; State v. Ohio River R. Co., 38 W. Va. 242, 18 S. E. 582, 56 Am. & Eng. R. Cas. 641. 5. Coast Line R. Co. v. Cohen, 50 Ga. 451; Stamford v. Stamford Horse R. Co., 56 Conn. 381, 36 Am. & Eng. R. Cas. 140; McCartney v. Chicago, etc., R. Co., 112 111. 611, 29 Am. & Eng. R. Cas. 326; Hunt v. Chicago Horse, etc., R. Co., 121 111. 638, 13 N. E. 176; People v. Third Ave. R. Co., 45 Barb. (N. Y.) 63. If thtre is a variance from the charter route of an electric railway greater than is necessary, or the charter itself is open to objection, the Commonwealth alone can raise the question, and not an abutting owner who seeks to enjoin the con- struction of the road. Minnick v. Lancaster, etc., R. Co., (Pa. C. P.) 24 Pa. Co. Rep. 312, 7 North Co. 305. 6. Attorney-General v. Lombard, etc., Ry. Co., 10 Phila. (Pa.) 352. 7. Borough of Stamford v. Stam- ford Horse R. Co., 56 Conn. 381, 15 Atl. 749, 36 Am. & Eng. R. Cas. 140. If track is laid in good faith, and without objection from local author- ities having full knowledge, the act cannot be classed among the nui- sances to be summarily abated. Eas- ton, S. E. & W. E. Ry. Co. v. Easton, 133 Pa. St. 505, 19 Atl. 486. 8. Spokane St. R. Co. v. Spokane Ealls, 6 Wash. 521, 33 Pac. 1072. 176 EIGHTS IN STREETS ABUTTING OWNEES. § 78 a railroad along streets or highways, 'refers to the officers of the city, town, or village, having control of the highways generally within the municipality. B Where municipal authorities vested by statute with discretionary powers in respect to the construction of electric street railway lines and the erection of poles in the streets have by ordinance authorized the erection of such poles, the courts will not, in the absence of fraud or corruption, compel the removal of the poles by mandamus even though they constitute a nuisance. 10 § 78. Same subject — As affecting abutting owners. — The con- struction and maintenance of a street railway by any individual or association of individuals, without legislative authority, con- stitutes a public nuisance and subjects those maintaining it not only to indictment, but to a private action in favor of any person sustaining special injury therefrom. 11 An abutting owner, having suffered material special damage, distinct in character from that which the public suffers, and irreparable in character, can have the assistance of equity by injunction to restrain the creation or maintenance of such a nuisance ; or he may maintain the ordinary action at law to abate the same; damages may also be recovered. 12 So it has been decided that a street railway company which 9. Re Rochester El. R. Co., 123 N. New York. — Fanning v. Osborne, Y. 351, 46 Am. & Eng. R. Cas. 157, 102 N. Y. 441, 7 N. E. 307; Henning 33 St. Rep. (N. Y.) 695, 25 N. E. v. Hudson Valley Ry. Co., 90 App. 381. Div. 492, 2 St. Ry. Rep. 806, 85 N. Y. 10. Commonwealth ex rel. Dist.- Supp. 1111. Atty. v. Westchester, 9 Pa. Co. Ct. Pennsylvania. — Thomas v. Inter- Rep. 542, 3 Am. Elec. Cas. 326. Co. St. Ry. Co., 167 Pa. St. 120, 5 11. Fanning v. Osborne, 102 N. Y. Am. Electl. Cas. 175, 31 Atl. 476. 441, 7 N. E. 307. Wisconsin .— Blesch v. Chicago, etc., 12. United States. — General Elec. Ry. Co., 43 Wis. 183. Ry. Co. v. Chicago, I. & L. Ry. Co., Injunction is the proper rem- 98 Fed. 907, 39 C. C. A. 345. edy of an abutting owner to prevent Iowa. — Stange v. Hill & West Du- the construction of an electric street buque St. Ry. Co., 54 Iowa 669, 7 N. railway until compensation is made W. 159; Cain v. Chicago, R. I. & P. to him. If, however, the road is al- R. Co., 54 Iowa 255, 3 N. W. 736, 6 ready built without his opposition N. W. 268. and without compensation to him, the Michigan. — Grand Rapids & Ind. operation will not be enjoined, but he R. Co. v. Heisel, 47 Mich. 393, 11 N. will be relegated to his action at law W. 212. for damages. Pennsylvania Ry. Co. 12 177 § 78 EIGHTS IN STREETS ABUTTING OWNERS. operates its railway in a town highway without the consent of the public authorities and of the abutting owners is a trespasser and that an abutting owner, although he has no title to any part of the street itself, has a sufficient special interest therein to entitle him to an injunction restraining the street railway company from operating its road. 13 But if permission of the township authori- ties to build and operate the road upon the highway has been obtained, the abutting owner cannot maintain an action to prevent the building and operation of the railroad, because the required consent of property owners is lacking. 14 Again, a street railway v. Montgomery County Pass. Ry. Co., 5 Am. Electl. Cas. 166, 167 Pa. St. 62, 31 Atl. 468. Where the city owns the fee of the street for the public use, an injunction will not be granted to an abutting owner to restrain the laying of a street railway, on the ground that it will impair his easement of ingress and egress. He has » remedy in damages. Haskell v. Denver Tram- way Co., 46 Colo. 60, 6 Am. Electl. Cas. 151, note, 46 Pac. 121. The owners of the fee simple of land in a. street may prosecute a certiorari to test the legality of a municipal ordinance purporting to au- thorize a railway company to place rails, poles, and wires on their land in the street. State v. Jersey City, (N. J. Sup.) 5 Am. Electl. Cas. 146. An abutting property owner is not entitled to enjoin the con- struction of a street railroad because his property would be injuriously af- fected or damaged thereby, or because the railroad is not legally authorized. General El. Ry. Co. v. Chicago & W. T. R. Co., 184 111. 588, 56 N. E. 963. Where an abutting owner upon a street has given consent to the construction of a railroad, such consent, so far as his special property right was affected, operates to make the construction of the road lawful as to him; and hence he is not entitled to a permanent injunction to restrain the construction. Bellew v. N. Y., W. & C. Traction Co., 47 App. Div. (N. Y.) 447, 62 N. Y. Supp. 242. A taxpayer, as such, cannot insti- tute proceedings to declare void a street railway grant because the nec- essary consents of abutting owners have not been obtained, but such ac- tion can be brought only by an abut- ting owner. Glidden v. Cincinnati, (Cin. Sup. Ct.) 4 Ohio Dec. 423. Preliminary injunction to prevent construction of electric street railway on plaintiff's land will not be permitted unless it clearly appears that the construction is to be upon his land. Thouron v. Rail way Co., (Pa. Sup. Ct.) 6 Am. Electl. Cas. 150. 13. Henning v. Hudson Valley Ry Co., 90 App. Div. (N. Y.) 492, 2 St. Ry. Rep. 806, 85 N. Y. Supp. 1111. 14. Borden v. Atlantic, etc., El Ry. Co., (N. J. Ch.) 5 Am. Electl Cas. 179. Where a trolley company has not obtained the consents re quired by statute to authorize it to construct its road, an abutting owner is not liable for filling up a trench dug in a street upon his premises. Wheeler v. Pennsylvania R. Co., 194 Pa. St. 539, 45 Atl. 338; People v. City of Utica, 45 App. Div. (N. Y.) 178 EIGHTS IN STREETS ABUTTING OWNERS. § 79 company has no right in the construction of its road to forcibly encroach upon private property even though it possesses the power of eminent domain. If it possesses such power it must acquire the property by the proper and lawful exercise thereof. If it does not possess it, then the right to take possession must be acquired by virtue of an agreement with the owner. 15 § 79. Rights of public in streets. — Ordinarily, and in fact wherever land is taken for highway purposes according to the course of the common law, the title to the soil over which high- ways and streets are laid, remains in the owner of the fee, subject only to the public easement, 16 The right of the public in a high- way consists in the privilege of passage, and such privileges as are annexed as incidents by usage or custom, as the right to make sewers and drains, and lay gas and water pipes; the subordinate privileges are entirely consistent with the primary use of the high- way, and are no detriment to the landowner. 17 In deciding a case in the New York Court of Appeals, Judge Haight, in the prevailing opinion, said : " The primary object of highways is for the public travel by persons and animals, and by carriages or vehicles used for the transportation of persons and goods, other than by railroads." 18 356, 61 N. Y. Supp. 31. If an abutting S.) 392, 34 Atl. 1091; McCruden v. owner does not own the fee in the Rochester Ry. Co., 5 Misc. Rep. (N. street, although special damage has Y.) 59, 25 N. Y. Supp. 114. resulted to him by the construction Acceptance of dedicated of the railroad without the necessary streets is found in a resolution of consents, it rests within the discre- acceptance, and in the passage by a tion of the court either to grant an municipality of an ordinance grant- immediate injunction in his suit ing permission to a street railway therefor, or to give the railroad com- company to lay its tracks therein, pany a reasonable time within which and conditioning its permission upon to obtain such consents. Black v. the paving and grading of the streets Brooklyn Heights R. Co., 32 App. in a specified way. Peoples Traction Div. (N. Y.) 468, 53 N. Y. Supp. (87 Co. v. Atlantic City, 71 N. J. L. 134, St. Rep.) 312. 3 St. Ry. Rep. 647, 57 Atl. 972. 15. Freud v. Detroit & PontiacRy. 17. State v. Laverack, 5 Vroom(N. Co., 133 Mich. 413, 1 St. Ry. Rep. J.) 206. See also Indianapolis Trac- 357, 95 N. W. 559. tion & T. Co. v. Kidd, 167 Ind. 402, 16. State, Roebling v. Trenton 5 St. Ry. Rep. 204, 79 N. E. 347. Pass. R. Co., 6 Am. Electl. Cas. 137, 18. Palmer v. Larchmont El. Co., 58 N. J. L. (29 Vroom) 666, 33 L. 158 N. Y. 231, 235, 52 N. E. 1092. R. A. 129, 4 Am. & Eng. R. Cas. (N. 179 § 80 EIGHTS IN STEEETS ABUTTING OWNEES. § 80. Eights of abutting owners in streets. — The abutting owner in addition to his fee simple title to the land to the center of the street, has, distinct from the public in general, a special interest or right in the street or highway lying in front of his premises. Such interest or right includes that of ingress or egress. Of these special rights or interests the abutter cannot be deprived except upon the appropriation by the State to public use, and then only upon payment of a just compensation. 19 The rights of access, light, and* air are easements forming part of the estate of an abutting owner whose right to their use is the same as his right to the property itself. Such an owner is entitled to the use of the street as a means of access to his property, and for light and air, whether the fee of the land in the street is in the municipality in trust for the purposes of public travel or in him subject to the 19. Kinsey v. Union Traction Co., 169 Ind. 563, 6 St. Ry. Rep. 383, 81 N. E. 923. Every lot fronting upon a street has, as appurtenances thereto, certain private easements in the street, in front of and adjacent to the lot, which easements are a part of the lot and are private property as fully as the lot itself. These private easements are: First, the right of ingress and egress to and from the lot over and by means of the adjacent portion of the street; second, the right to re- ceive light from the space occupied by the street and to the circulation of air therefrom; third, the right to have the street space kept open so that signs or goods displayed in or upon the lot may be seen by the pass- ersby, in order that they may be at- tracted as customers to patronize the business carried on thereon. Williams v. Los Angeles Ry. Co., 150 Cal. 592, 89 Pac. 330, 5 St. Ry. Rep. 42. The owner of property abutting on a public highway is entitled to free and undisturbed access to his prop- erty over the adjacent highway, and this right is not affected by authority granted to a street railway company to locate and build its tracks on such highway. If the usefulness of the highway to the abutting owner has been impaired by the construction of the railway in such a way as to inter- fere with his right of access the rail- way company is liable for the loss in the diminished value of the property. Farrar v. Midland Electric Ry. Co., 101 Mo. App. 140, 1 St. Ry. Rep. 469, 74 S. W. 500; so holding where the roadbed of a street railway was from four to six feet higher than the grade of the street and located imme- diately adjoining a sidewalk in front of plaintiff's property. In Wisconsin it is decided that an ordinance giving a street railway company the right to use the streets does not confer any right upon the company to construct its tracks or place any burden on an abutting owner's half of the street in front of his property, without compensation, the right of the abutting owner to compensation being a condition pre- cedent thereto. Lange v. La Crosse & Eastern Ry. Co., 118 Wis. 558, 1 St. Ry. Rep. 834, 95 N. W. 952. 180 EIGHTS IN STREETS - ABUTTING OWNERS. § 80 public use, and of these rights he cannot be deprived without compensation. 20 Whether or not the abutting owner owns to the middle of the street, subject to the public easement therein, affects the question but little, except in New York. Nearly all the au- thorities agree that if he does not own the fee in any part of the street, he is entitled to damages aud an injunction, when the street is practically and substantially closed against him for ordinary street purposes, under the authority of the municipality owning the fee, as by a railroad embankment therein, several feet high, with perpendicular stone walls, leaving a space only eight or nine feet wide for a carriage. 21 So a trestle constructed by a street 20. Dooly Block v. Salt Lake City Rap. Tr. Co., 9 Utah 31, 4 Am. Electl. Cas. 189, 33 Pac. 229, 8 Am. R. R. & Corp. R. 327. See also Williams v. Los Angeles Ry. Co., 150 Cal. 592, 5 St. Ry. Rep. 42, 89 Pac. 330. 21. Reining v. N. Y., L. & W. R. Co., 128 N. Y. 157, 14 L. R. A. 133, 40 St Rep. (N. Y.) 392, 28 N. E. 640, 10 Ry. & Corp. L. J. 462 ; Egerer v. New York Cent. & H. R. R. Co., 130 N. Y. 108, 14 L. R. A. 381, 41 St. Rep. (N. Y.) 488, 29 N. E. 95. See also following cases: Alabama. — Highland Ave. & B. R. Co. v. Matthews, 99 Ala. 24, 10 So. 267, 14 L. R. A. 462, 34 Cent. L. J. 158. Massachusetts. — Onset St. R. Co. v. Plymouth Co. Com'rs, 154 Mass. 395, 28 N. E. 286. Missouri. — Lockwood v. Wabash P. Co., 122 Mo. 86, 24 L. R. A. 516, 26 S. W. 698; Martin v. Chicago, S. F & C. R. Co., 47 Mo. App. 452. Pennsylvania. — Jones v. Erie & W. Va. R. Co., 144 Pa. St. 629, 23 Atl. 251, 29 W. N. C. 167, 1 Pa. Adv. Rep. 98. Rhode Island. — Johnson v. Old Colony R. Co., 18 R. I. 642, 29 Atl. 594. Vermont. — Wead v. St. Johnsburg & L. C. R. Co., 64 Vt. 52, 24 Atl. 361. For an injury, due to obstruc- tion of the easement of light, air, or access to his property, or to vibrations caused by running heavy cars at a great speed, the abutting owner has his remedy at law and should be remitted thereto. State v. Railroad Co., 58 N. J. 666, 6 Am. Electl. Cas. 137. Nothing can be claimed on the ground that city railroads are a great public convenience and benefit; if they are so, the public can afford to pay for them; that is certainly no reason why individual property should be taken for public use. Hinchman v. Paterson Horse R. Co., 2 C. E. Green (N. J.) 75, 80. Where the trolley track is laid in conformity to the direction of a. special ordinance, the com- pany will not be restrained from operating it because its location works inconvenience and injury to the abutting owners, since, if the munici- pality has so unreasonably appropri- ated the divisions of the highways as to injure abutting owners, their rem- edy is in the courts of law which supervise inferior jurisdiction, and not in equity. Budd v. Camden Horse R. Co., 61 N. J. Eq. 543, 48 Atl. 1028. A railroad company organized un- der How. (Mich.) Annot. Stat., chap. 181 § 80 EIGHTS IN STREETS ABUTTING OWNERS. railway company upon a street across the tracks of a railroad com- pany has been held not to be included in the easement which has been acquired by the public in the street, but to be a private nuisance of a grave character if not authorized by the legislature. And under a statute providing for compensation to any person legally damaged in his property by the construction, maintenance, or use of the trestle there was held to be a taking of the abutting owner's property by right of eminent domain, which entitled him to compensation without regard to whether the taking was per- manent. 22 Again, where a street railway company unreasonably uses a street in a city for storing and switching cars to the special injury of the abutting landowner, the latter may maintain an action therefor against the company although the fee of the street is in the city. This latter fact does not authorize either the legis- lature or the city to devote the street to purposes inconsistent with street uses. The abutting owner in any event is entitled to certain rights and uses in the street, and though the structure of the com- pany in the street may be lawful, yet, if the use is unreasonable, such owner is entitled to such damages as result from the unreason- able use. 23 And even if the abutting owner owns the fee to the center of the street, and there are shade trees in the street and upon that portion of which he owns the fee, a traction company, authorized by the city to erect its trolleys in the street, may top 94, providing for " train " or street public. Longnecker v. Wichita R. R. railways, cannot occupy a highway & L. Co., 80 Kan. 413, 102 Pac. 492. and construct thereon a railroad, not 22. Lentell v. Boston & Worcester conforming to the surface of the high- St. Ry. Co., 202 Mass. 115, 88 N. E. way, but having cuts and fills with 765, holding that though a statute trenches at the side of the roadbed authorizing the construction of a and using a " T " rail, although au- trestle in a street by a railway com- thorized so to do by the town au- pany provides that it shall be deemed thorities, without compensation to not to be an additional easement or abutting owners. Nichols v. Ann Ar- servitude may be unconstitutional as bor & Y. St. R. Co., 87 Mich. 361, 16 to owners of land upon which such L. R. A. 371, 49 N. W. 538. trestle is in fact an additional servi- An obstruction to the lawful tude, yet where it also authorizes the use of the street by an abutting company to construct the trestle and owner consequent upon the wrongful compensate such owners for the dam- location of a street car track inflicts ages incurred, it will not be construed an injury upon him peculiar to him- as inoperative as a whole, self, independent of and differing 23. Mahady v. Bushwick R. R. from the general detriment to the Co., 91 N. Y. 148, 43 Am. Rep. 661. 182 EIGHTS IN STREETS ABUTTING OWNEES. § 80 the branches of the trees where they overhang the street in such a manner as to make the cutting reasonably necessary for the passage of its wires. The boughs are subject to removal by the municipal authorities whenever the public exigency or convenience requires it, and the authority to extend the wires along the street involves, by implication, the competency to do whatever is reason- ably necessary to effect the end in view. 24 It may remove shade trees within the limits of the public highway, for the construction of its road as established by the township authorities without com- pensating the abutting owner for damages, provided it gives notice to the owner that the removal of the trees is necessary for its pur- poses and an opportunity to remove them as he may see fit. 25 24. Dodd v. Consolidated Traction Co., 57 N. J. L. 482, 31 Atl. 980, 3 Am. Electl. Cas. 201. 25. Miller v. Detroit, Y. & A. A. Ey. Co., 125 Mich. 171, 84 N. W. 49, 7 Am. Electl. Caa. 387, 51 L. E. A. 955. In the case cited, the court, per Gbant, J., said: "It is established beyond controversy that the munici- pal authorities have entire control over their highways, streets, and side- walks, and may remove shade trees whenever they are an obstruction to the use of the highway for public travel, without compensation to the owner. Vanderhurst v. Tholcke, 113 Cal. 147, 36 L. E. A. 267, 45 Pac. 266; Everett v. Council Bluffs, 46 Iowa, 66 ; Wilson v. Simmons, 89 Me. 242, 36 Atl. 380. It is true that these trees were lawfully planted, and that they are the private property of the abutting owner. It is also true that one planting trees in the public high- way plants them with the understand- ing that they can remain there only so long as the space occupied by them is not required for public use. These roads are not an additional servitude as we have repeatedly held. When, therefore, their construction is duly authorized, it logically follows that the company has the right to remove from the highway any object which interferes with the proper construc- tion and operation of the road. Such power is necessarily implied. Dodd v. Consolidated Traction Co., 57 N. J. L. 482, 31 Atl. 980; Southern Bell Teleph. Co. v. Francis, 109 Ala. 224, 31 L. E. A. 193, 19 So. 1. When a man dedicates his land for a public highway, or it has been condemned for that purpose, and he has been compensated, it is definitely under- stood by him that whatever he may lawfully do within the boundaries of the highway, is done with the right of the lawful authorities to appro- priate the entire width of the high- way for purposes of travel, if it shall become necessary. Street railways, in city and country, have come to be re- garded as a public necessity and their construction upon the highways uni- versally sanctioned. If the township authorities may remove any obstruc- tion to the public use, there seems to be no sound reason why they may not authorize street railway companies, telephone companies, and the like to do so, when such companies are law- fully entitled to the use of the streets. It is conceded that the township au- thorities in this case were authorized to grant the franchise to the defend- 183 § 81 EIGHTS IN STREETS ABUTTING OWNEBS. § 81. Encroachments on highway by abutting owner — Right of railway company to remove. — When land has been dedicated for a public highway, or has been legally condemned and appropriated for that purpose, whatever the abutting owner may do within the boundary of that highway is done subject to the right of the law- ful authority to appropriate the entire width of the highway for purposes of travel if it becomes necessary. If an abutting owner encroaches thereon by the maintenance of an obstruction the authorities having,, control over such highway may remove the same. This power of removal may be delegated to a street rail- way company or any public corporation lawfully authorized to use the street or highway. And a grant to a street railway com- pany to construct its line along a street or highway where such an obstruction is maintained by an abutting owner confers the right upon such company to remove the same where it interferes with the proper construction and operation of the road. 26 ant, and to determine in what part of the highway its road should be constructed. The township may pos- sibly fix, as a condition of the grant, the payment of damages for the de- struction of the shade trees. The legislature undoubtedly has the power to provide that abutting owners should be compensated for the dam- age which must result to them from the destruction of their trees. That, however, is a matter for the deter- mination of the legislature and not for the courts. The legislature has granted the power to do it without compensation. The township have not provided for it. Courts are, there- fore, powerless. But there is one fatal defect in the defendant's proceedings. It secured no greater rights by its franchise than the municipality had. The law gives neither the right to re- move shade trees without notice to the owner and an opportunity given him to remove them as he sees fit. Clark v. Dasso, 34 Mich. 86. Under that decision plaintiff was entitled to recover for damages and the judg- ment must, therefore, be affirmed. 26. Georgetown & Lexington Trac- tion Co. v. Mulholland, 25 Ky. Law Eep. 578, 1 St. Ry. Rep. 248, 76" S. W. 148; holding that a street railway company may remove fences main- tained within the limits of a highway by an abutting owner where they inter- fere with its use of the highway under its franchise. The court in this case cited Miller v. Detroit Y. & A. A. Ry., 125 Mich. 171, 84 N. W. 49, wherein it is said : " These roads are not an additional servitude, as we have re- peatedly held. When, therefore, their construction is duly authorized, it logically follows that the company has the right to remove from the highway any obstruction which inter- feres with the proper construction and operation of the road. Such power is necessarily implied. Dodd v. Con- solidated Traction Co., 57 N. J. L. 482, 31 Atl. 980; Southern Bell Teleph. Co. v. Francis, 109 Ala. 224, 19 So. 1. * * * If the township au- 184 EIGHTS IN STREETS ABUTTING OWNERS. § 82 § 82. Street railway not additional servitude. — Substantially all the courts of last resort in the United States, except the New York Court of Appeals, include also the carriages and vehicles used upon the ordinary street surface railroads among the means of accomplishing the primary object of highways. And it is quite uniformly held that a railroad, constructed and operated in the street of a city, so as not to materially interfere with its common use for public travel by ordinary modes, or with private rights of abutting landowners, for the purpose of transporting persons from place to place upon such street at their reasonable convenience, whatever the motive power may be, is not an additional burden upon the fee thereof, and really promotes the primary object of the highway. The ordinary electric street railway with its trolley wire supported by cross-wires attached to poles set near the outer edge of the sidewalks, with due regard to the abutting prop- erty owners' convenience, is but an improved method of using the street for public travel. There is no limit to the public right to use a street, and every part of it, so long as that use is in aid of public travel thereon and does not interfere unnecessarily with the common use of the way by ordinary modes of travel, and is no substantial impairment of private rights of property. Com- pared with a horse car, the electric car more certainly promotes the primary object of the highway. It moves more rapidly, is started and stopped with greater facility, and will more comfort- ably, and without obstructing the streets as much for travel by other means, move the greater number of persons the greater dis- tance in a given time. 27 And where a statute forbid the granting thorities may remove any obstruction an additional servitude. See also the to the public use, there seems to be following decisions: no sound reason why they may not United States. — Williams v. City authorize street railway companies, Electric St. R. Co., 41 Fed. 556, 7 Ry. telephone companies and the like to & Corp. L. J. 448, 43 Am. & Eng. R. do so, when such companies are law- Cas. 215. fully entitled to the use of the street." Alabama. — Morris v. Montgomery 27. La Crosse City R. Co. v. Hig- Traction Co., 143 Ala. 246, 4 St. Ry. bee, 7 Am. Electl. Cas. 369, 107 Wis. Rep. 19, 38 So. 834; Birmingham 389, 51 L. R. A. 923, 929, 83 N. W. Traction Co. v. Birmingham R. & 701. Electric Co., 119 Ala. 137, 43 L. R. As sustaining the doctrine that A. 233, 24 So. 502. street railways on city streets are not California. — Finch v. Riverside & 185 g 82 EIGHTS IN STBEETS- ABUTTING OWNEES. of any location for the tracks of a street railway in a certain town, except in ways in which special space for the use of street rail- ways should have been reserved prior to the location of tracks, and A. R. Co., 87 Cal. 597, 9 Ry. & Corp. L. J. 250, 46 Am. & Eng. R. Cas. 107, 25 Pac. 765. But see Reynolds v. Presidio & F. R. Co., 1 Cal. App. 229, 4 St. Ry. Rep. 56, 81 Pac. 1118; citing Eachus v. Los Ajigeles Consol. Elec. Ry. Co., 103 Cal. 614, 37 Pac. 750, 42 Am. St. Rep. 149. Connecticut. — Canastota Knife Co. v< Newington Tramway Co., 69 Conn. 146, 36 Atl. 1107. Florida. — State, Jacksonville v. Jacksonville St. R. Co., 29 Fla. 590, 10 So. 590. Georgia. — Southern Ry. Co. v. At- lanta, etc., Ry Co., Ill Ga. 679, 36 S. E. 873. Illinois. — And see General El. Ry. Co. v. Chicago & W. T. R. Co., 184 111. 588, 56 N. E. 963 ; Doane v. Lake Street El. R. Co., 165 111. 510, 36 L. R. A. 97, 46 N. E. 520; Chicago, B. & Q. R. Co. v. West Chicago St. R. Co., 156 111. 255, 29 L. R. A. 485, 40 N. E. 1008. Indiana. — Kinsey v. Union Trac- tion Co., 169 Ind. 563, 6 St. Ry. Rep. 383, 81 N. E. 923; Mordhurst v. Ft. Wayne & S. W. T. Co., 163 Ind. 268, 3 St. Ry. Rep. 182, 71 N. E. 642. Iowa. — Snyder v. Fort Madison St. R. Co., 105 Iowa 284, 41 L. R. A. 345, 11 Am. & Eng. R. Cas. (N. S.) 53, 75 N. W. 179;' compare Stauge v. Dubuque, 62 Iowa 303, 17 N. W. 518. Kentucky. — Georgetown & Lexing- ton Traction Co. v. Mulholland, 25 Ky. Law Rep. 578, 1 St. Ry. Rep. 248, 76 S. W. 148; Louisville Bagging Mfg. Co. v. Central Pass. R. Co., 95 Ky. 50, 4 Am. Electl. Cas. 202, 23 S. W. 592. Maine. — Parsons v. Waterville & O. St. Ry. Co., 101 Me. 173, 4 St. Ry. Rep. 371, 63 Atl. 728; Taylor v. Portsmouth, K. & Y. St. R. Co., 91 Me. 193, 39 Atl. 560; Briggs v. Lewis- ton & A. Horse R. Co., 79 Me. 363, 10 Atl. 47. Maryland. — Poole v. Falls Road El. R. Co., 88 Md. 533, 41 Atl. 1069; Greene v. City & Suburban Ry. Co., 78 Md.294, 4 Am. Elec. Cas. 206, 28 Atl. 626, 44 Am. St. Rep. 288; Koch v. North Ave. R. Co., 75 Md. 222, 4 Am. Electl. Cas. 153, 15 L. R. A. 377, 23 Atl. 463. Massachusetts. — Howe v. West End St. R. Co., 167 Mass. 46, 44 N. E. 386. Michigan. — Smith v. Jackson & Battle Creek Tr. Co., 137 Mich. 20, 100 N. W. 121, 3 St. Ry. Rep. 439; Houghton County St. Ry. Co. v. Com- mon Council of Village of Laurium, 135 Mich. 614, 2' St. Ry. Rep. 487, 98 N. W. 393 ; Dean v. Ann Arbor St. R. Co., 93 Mich. 330, 53 N. W. 396; People, Kunze v. Ft. Wayne & E. R. Co., 92 Mich. 522, 16 L. R. A. 752, 52 N. W. 1010; Nichols v. Ann Arbor & Y. St. R. Co., 87 Mich. 361, 16 L. R. A. 371, 49 N. W. 538; Detroit City R. Co. v. Mills, 85 Mich. 638, 48 N. W. 1007, 46 Am. & Eng. R. Cas. 608, 10 Ry. & Corp. L. J. 104. Minnesota. — Elfelt v. Stillwater St. R. Co., 53 Minn. 68, 55 N. W. 116. Missouri. — St. Louis public purpose. Therefore a railway company cannot main- tain condemnation proceedings, where its termini are upon or Co. v. Indianapolis & Martinsville, 13. Kansas City Interurban Ry. v. Rap. Tr. Co., 33 Ind. App. 337, 1 St. Davis, 197 Mo. 669, 95 S. W. 881. Ry. Rep. 173, 67 N. E. 1013. 14. Hinnershitz v. United Traction 12. Chicago & N. W. Ry. Co. v. Co.| 206 Pa. St. 91, 1 St. Ry. Rep. Oshko'sh, A. & B. W. R. Co., 107 Wis. 735, 55 Atl. 841. 192, 83 N. W. 294. And see In re 15. Mull v. Indianapolis & C. Minneapolis & St. L. R. Co., 76 Minn. Traction Co., 169 Ind. 214, 6 St. Ry. 302, 79 N. W. 304. Rep. 192, 81 N. E. 657. 218 ACQUISITION OF EIGHTS. 94: entirely surrounded by the lands of another corporation for the convenience of which it was chiefly organized, its only business being to transport the property of such corporation and to trans- port coal under special contract with one individual. 16 Where a private use is combined with a public one in such a way that the two cannot be separated then the right of eminent domain cannot be invoked to aid the enterprise. It is, however, said that where the two are not so combined as to be inseparable the right of eminent domain may be exercised for the uses that are public. 17 So where the articles of incorporation of a street railway company show that some of the uses for which it was incorporated are purely of a private nature, but the public and private uses are not so combined as to be inseparable it has been decided that the right of eminent domain may be exercised for the uses that are public. 18 It cannot maintain proceedings to quiet its title to lands which it claims already to own, nor for the purpose of compelling specific performance' of a contract entered into by it with other persons. 19 The question whether or not it is improperly exercising its franchise cannot be raised 16. Re Split Rock Cable Road Co., equal advantages to all. Avery v. 128 N. Y. 408, 28 N. E. 506, 40 St. Vermont Electric Co., 75 Vt. 235," 8 Rep. (N. Y.) 334, 11 Ry. & Corp. L. Am. Electl. Cas. 171, 54 Atl. 179, 59 J. 20. L. R. A. 817, 98 Am. St. Rep. 818. Dam to procure power to gen- 17. State ex rel. Harlan v. Cen- erate electricity for operation tralia-Chehalis Elec. Ry. & P: Co., 42 of railroad. — Under a statute au- Wash. 632, 4 St. Ry. Rep. 1064, 86 thorizing one who desires to erect Pac. 344, citing Irrigation Co. v. or continue a mill or factory on his Klein, 63 Kan. 484, 65 Pac. 684; land to construct a dam to obtain Brown v. Gerald, 100 Me. 351, 61 Atl. water therefor, and to secure the 785, 70 L. R. A. 472. right to overflow the land of others, 18. State ex rel. Harlan v. Cen- if commissioners appointed for such tralia-Chehalis Elec. Ry. & P. Co., purpose, or the court itself, shall 42 Wash. 632, 4 St. Ry. Rep. 1064, find " that the flowing of the land as 86 Pac. 344. proposed will be a public benefit," a 19. Florence E. D. & W. R. Co. v. person who desires to erect such dam Lilley, 3 Kan. App. 588, 43 Pac. 857. to procure power to generate elec- In New York the statute provides tricity for the operation of a railroad, that the proceedings may be inain- cannot invoke the power of eminent tained, where title to real estate has domain, since while the railroad must been acquired or attempted to be ac- serve the public, there is nothing to quired, and has been found to be in- compel such person to furnish elec- valid or defective. The Railroad Law tricity to the railroad, or to give 1910, chap. 481, § 17, chap 565 of 219 § 95 EMINENT DOMAIN on a condemnation proceeding; but only by the people in a pro- ceeding instituted for that purpose. 20 § 95. Eminent domain — Words " necessity " and " necessary " in statute construed. — An act providing that when it is necessary for the construction of a street railroad, or for the necessary sidings, to take or damage private property, the same may be done and the compensation therefor made, as provided by law in eminent domain proceedings, does not authorize a street rail- road to take private property for a right of way, though an ordinance of a city authorizes it to lay its tracks on the streets thereof over a part of its route, and over private property as to the balance thereof, as the refusal of the council to permit the company to lay its tracks in the streets for the whole distance is not such a necessity as would authorize it to exercise the power of eminent domain. 21 Where a street railroad company is authorized by its charter to leave the public highway in case of necessity and condemn private property, it must make a return thereto as soon as practicable. 22 So where street rail- ways are authorized to travel through rural districts it is upon the theory that they will be of benefit to the inhabitants thereof. They are therefore presumed to follow the highways, making such stops as are necessary to accommodate the people living along the same. If their construction is not a public necessity then it is said that the power of eminent domain, upon the theory that they are to exercise a public function, cannot be called into action in their behalf. Therefore authority conferred 1890. And see Re Prospect Park supplementary act is authorized to & Coney Island E. Co., 67 N. Y. 371, condemn land for the construction of 376. a branch line, subject to all the du- 20. Thomas v. St. Louis B. & S. E. ties and responsibilities which de- Co., 164 111. 634, 46 N. E. 8. volved upon the corporation in respect 21. Dewey v. Chicago & M. El. to its original line, cannot condemn Ry. Co., 184 111. 426, 56 N. E. 804. A lands after its failure to complete street railroad company authorized the branch line within two years, by its original charter to acquire a Williamson v. Gordon Heights E. Co., right of way provided its road shall 8 Del. Ch. 192, 40 Atl. 933, 14 Am. & be completed and in operation within Eng. E. Cas. (N. S.) 809. two years, in default of which the 22. Aurora & G. E. Co. v. Har- act was to be roid, and which by a vey, 178 111. 477, 53 N. E. 331. See 220 ACQUISITION OF RIGHTS. 95 upon such a company to condemn " any property necessary for the construction of the road " does not authorize it to condemn land for the construction of its line whenever it deems that a deflection from the highway will save distance, expense of con- struction or otherwise be of a benefit to the company. While it may exercise this power to deflect from the highway when neces- sary in constructing its line yet it must make an honest effort to follow the highway, and unless it appears that it is in general following it, there is said to be no excuse for deflection and no consequent right to condemn private property. 23 The word " necessity " as used in such an act cannot be limited to an absolute physical necessity, but should be construed to mean ex- pedient, reasonably convenient, or useful to the public. 24 Such necessity exists when by leaving the highway and going onto private property, excessive gradients and dangerous grade cross- ings may be avoided. 25 But a city council cannot, by ordinance, direct the location of the railroad upon private property; since private property can only be condemned in cases of necessity under the statute and not upon the judgment of a city council. 26 -Whether lands owned by a railroad company, and sought to be condemned by an electric railway company, are necessary for the present and immediate future uses and purposes of the com- pany owning them is a question of fact. 27 A provision in the charter of a street railway company authorizing the acquisition Harvey v. Aurora & G. R. Co., 174 case cited also held that it is not nec- 111. 295, 51 N. E. 163, 30 Chic. Leg. essary to the exercise of the power to N. 401, 17 Nat. Corp. Rep. 66. condemn private property for the con- 23. Hartshorn v. Illinois Valley struction of a street railroad that Traction Co., 210 111. 609, 3 St. Ry. the consent of the city be obtained as Rep. 145, 71 N. E. 612. that may be secured subsequently. 24. Aurora & G. R. Co. v. Harvey, But see Town of Lysander v. Syra- 178 111. 477, 53 N. E. 331; Coates cuse L. & B. R. Co., 31 Misc. Rep. v. New York, 7 Cow. (N. Y.) 585; (N. Y.) 330, 65 N. Y. S. 415, and Commissioners of Park & Boulevards Re Rochester El. Ry. Co., 123 N. Y. of City of Detroit v. Moesta, 91 Mich. 351, 46 Am. & Eng. R. Cas. 157, 33 149, 51 N. W. 903; Pettingill v. Por- St. Rep. (N. Y.) 695, 25 N. E. 381, ter, 8 Allen (Mass.) 1, 85 Am. Dec. holding that the statutory consents 671 ; Hays v. Briggs, 3 Pittsb. 504. are an essential prerequisite. 25. Aurora & 6. R. Co. v. Harvey, 27. Chicago & Milwaukee E. R. 178 111. 477, 53 N. E. 331. Co. v. Chicago & Northwestern Ry. 26. Harvey v. Aurora & G. Ry. Co., 211 111. 352, 3 St. Ry. Rep. 93, Co., 186 111. 283, 57 N. E. 857. The 71 N. E. 1017. 221 § 96 EMINENT DOMAIN of such property, both real and personal, as may be necessary to the exercise of the privileges conferred will not of itself be regarded as investing such company with power of eminent domain. 28 § 96. Eminent domain — Statutes as to — Street railway com- panies. — Street railway companies are not generally endowed with the right of eminent domain because they do not need it. They are modern local conveniences, the location and construction of which are subject to the will of the people they are intended to serve. This will is expressed through the local authorities. Such companies cannot force themselves into neighborhoods where they are not wanted. 29 Usually the power to condemn property to their use is conferred upon railroad cor- porations by statute. And where the company has complied with all the preliminary steps required by the legislature, its decision as to the extent, nature, and propriety of the taking of land for the purposes of its organization is as conclusive as when made by the legislature itself. 30 The right of a traction company to exer- cise the power of eminent domain is a question to be determined in the condemnation proceedings and a party aggrieved by an erroneous ruling by a court as to the right of such a company to 28. Claremont Ey. & L. Co. v. Put- to aid in the construction, mainte- ney, 73 N. H. 431, 62 Atl. 727. nance and accommodation of its rail- 29. Heilmar v. Lebanon & Ann- road; and to acquire by condemnation ville St. Ey. Co., 180 Pa. St. 627, 37 such real estate and property as may Atl. 119. be necessary for such construction, 30. The N. Y. Stat., the Eailroad maintenance, and accommodation in Law, chap. 481, L. 1910, § 8, is as the manner provided by law, but the follows: real property acquired by condemna- " § 4. Additional powers con- tion shall be held and used only for f erred. — Subject to the limitations the purposes of the corporation dur- and requirements of this chapter, ing the continuance of the corporate every railroad corporation in addition existence." to the powers given by the General New York, N. H. & H. R. Co. v. and Stock Corporation Laws, shall Long, 69 Conn. 424, 37 Atl. 1070; have power. People, Herrick v. Smith, 21 N. Y. "1. * * * . 595; Ashe v. Cummings, 50 N. H. " 2. Acquisition of real prop- 591 ; National Docks R. Co. v. Cen- erty. — To take and to hold such tral R. Co., 32 N. J. Eq. 755; United voluntary grants of real estate and States v. Jones, 109 U. S. 513, 3 S. other property as shall be made to it Ct. 346, 27 L. ed. 1015. 222 ACQUISITION OF EIGHTS. § 96 take land by condemnation is not entitled to an injunction but bis remedy is by appeal from tbe ruling, if authorized by statute, if not, from the final judgment when tbe entire proceeding may be reviewed. 31 Tbe statute conferring tbe power does not limit its exercise to a public use; but may leave tbat question for tbe court's determination. So when a suburban railroad company, authorized to condemn land for its " corporate purposes," sought to compel the transfer of city land five miles from the nearest point of its railroad for a power-house, the court held that it was not a necessary public use to erect a power-house on that particular lot. 32 In Minnesota it has been decided that a rail- way company has the right to acquire by condemnation a right of way over the streets and alleys of cities and villages, and over private property, within such limits, without securing a fran- chise from tbe municipal authorities. 33 And in Washington it has been decided that under the statute of eminent domain of that State, providing that electric railway companies shall have the right to appropriate land for a right of way and other cor- porate purposes, a street railway company may condemn land for power purposes, however distant the land may be from the proposed railway. 34 In Illinois also it has been determined that a street railway may, where necessary to the practical and effi- cient maintenance and operation of its line, condemn such private property as is necessary for side tracks, station houses, power- houses, switches and turnouts. 35 Where a statute confers upon an electric railway company the right to condemn a right of way a certain number of feet in width it does not exhaust its power by acquiring a right of way which is less than the width allowed by statute but may subsequently condemn an additional right of • 31. Boyd v. Logansport, Rochester 42 Wash. 632, 4 St. Ry. Rep. 1064, & Northern Tr. Co., 161 Ind. 587, 2 86 Pac. 344. St. Ry. Rep. 193, 69 N. E. 398. 35. Eddleman v. Union Co. Tr. & 32. Re Rhode Island Suburban Ry. P. Co., 217 111. 409, 4 St. Ry. Rep. Co., 22 R. I. 457, 48 Atl. 591. 194, 75 N. E. 510, citing Harvey v. 33. Minneapolis & St. Paul Sub. Aurora & Geneva Ry. Co., 174 111. Ry. Co. v. Manitou Forest Syndicate, 295, 51 1. E. 163; Aurora CONSTEUCTION GENEEALLY. line are placed so near to the abutting property as to cause serious injury and damage thereto the owner of such property may obtain an injunction. 76 And in New Jersey it has been decided that electric street railway are so located that they interfere with the ingress to and egress from the property of an abutting owner and thus diminish its value he is entitled to damages. Jaynes v. Omaha Stseet Ry. Co., 53 Neb. 631, 7 Am. Electl. Cas. 328, 74 N. W. 67, 39 L. R. A. 751. Where street railway tracks were constructed around a corner which was the apex of a lot pyramidal in shape, and where there was a wide sidewalk between such lot and the curb, the plaintiff's right of ingress and egress were not damaged al- though it was shown that at one point in the curve the car projected a few inches over the edge of the sidewalk, and although it was shown that on three or four occasions, when the tracks were first used, cars had run off the track at this point. Hes- ter v. Durham Traction Co., 138 N. C. 288, 3 St. Ry. Rep. 726, 50 S. E. 711. 76. Snyder v. Fort Madison St. Ry. Co., 105 Iowa 284, 7 Am. Electl. Cas. 359, 75 N. W. 179. "The peti- tion in this case states that the pole in question was placed in front of the property of the plaintiffs without necessity therefor, to annoy them and to injure and depreciate the value of .their property; that it is an obstruc- tion to the enjoyment by them of their property; that it has depreci- ated the value of that property and caused great damage to the plaintiffs, and will continue to cause such de- preciation and damage if not re- moved; and that they have not been compensated for the damage received. Applying the rule of the statutes and authorities cited, we conclude that the statements of the petition" are of ultimate facts which show a cause of action, although it may be true that a motion for a more specific statement as to the manner and ex- tent of the obstruction and its effect might have been required had it been asked. But the ultimate fact was the unnecessary obstruction of the use and enjoyment of the plaintiffs' property to their substantial damage; and that the petition showed. We do not understand the appellee to question this if it be true that the pole in question may have been so placed and maintained as to give the plaintiffs a right of action. If the plaintiffs can prove the averments of their petition they might recover damages for the injuries sustained; but they are not compelled to resort to that remedy. If the location of the pole is not only injurious, but un- necessary, they may have recourse to this action for the removal of the pole. Richards v. Holt, 61 Iowa 533, 16 N. W. 595; Gribben v. Hansen, 69 Iowa 255, 28 N. W. 584; Harbach v. Des Moines & K. C. Ry. Co., 80 Iowa 593, 44 N. W. 348. We must not be understood as holding that a prop- erty owner may dictate the location of poles in front of his premises, noi that he may recover damages, how- ever trivial, which may be caused by their location. The railway company has the right to so place its poles as to secure the best results for its rail way, provided that it so places them as not to cause any unnecessary in- jury. The injurious consequences which it must guard against are those of a substantial character. The placing of poles in front of property 306 REGULATION AND CONSTRUCTION GENERALLY. § 131 when a trolley company has laid down its railway in the streets of a city, and has obtained by petition from the governing body an ordinance granting such s right and fixing the route of the road and the places where the poles are to be located, according to a map accompanying the petition, the company cannot after- wards lawfully place or erect its poles at places in the street different from those so designated, and that if it locate one of its poles in the street at a place upon land not thus fixed and desig- nated, and without the authority of the owner of the fee thereof, it becomes a trespasser, and the owner may have relief by an action of ejectment to recover possession of the land thus occupied by the pole, such possession to be afterwards held subject to the public easement. 77 If the statute, or the franchise of the com- pany, or any ordinance the municipality were authorized to adopt, prescribes specifically the remedy for an unauthorized or de- fective construction of the railroad in the streets, such remedy of' course must be pursued. A street railroad corporation having, by contract duly recorded, the exclusive right to build its road through the land of a railroad company to its depot, can restrain another company from interfering with its road by any unauthor- ized construction. 78 § 131. Remedies for unauthorized or defective construction — In behalf of public. — The corporation creating and maintaining the obstruction may be indicted for maintaining a public nuisance, 79 or an action may be maintained against it by the proper authori- ties to have the nuisance abated, or for an injunction against it. 80 is seldom desired by the property must be decided according to its own owner, and may in some slight degree facts." Per Robinson, J. interfere with the use of his prop- 77. Moore v. Camden & T. Ey. Co., erty, as by obstructing the view from 73 N. J. L. 599, 4 St. Ry. Rep. 779, it; but for such injury, if alone, he 64 Atl. 116. would rarely if ever be entitled to 78. Fort Worth St. R. Co. v. Queen relief. The placing of a pole in a City R. Co., 71 Tex. 165, 9 S. W. 94. walk or roadway, however, or in front 79. Commonwealth v. Old Colony, of or near to an important window, etc., R. Co., 14 Gray (Mass.) 93; if the pole could as well be placed Pittsburgh, etc., R. Co. v. Comnron- elsewhere, might afford ground for wealth, 101 Pa. St. 192, 10 Am. & relief. But we cannot undertake to Eng. R. Cas. 321. lay down general rules which would 80. Denver, etc., R. Co. v. Denver govern all cases. Each of necessity City R. Co., 2 Colo. 673; Borough of 307 § 132 REGULATION AND CONSTRUCTION GENERALLY. And if the duty as to the construction or maintenance is impera- tive, the proper authorities may proceed by mandamus against the company to compel its performance. 81 Rarely, however, would an unauthorized construction, and never a defective construction, work a forfeiture of the charter, unless there be an express pro- vision to that effect contained therein. 82 In the absence of statu- tory provision as to the manner in which an order of the common council directing the street railroad company to remove obstruc- tions from the street shall be brought to the company's notice, the mailing of a copy of the order to the company by the city clerk and oral notice of its passage by the person on whose complaint the order was made is sufficient. 83 § 132. Construction and maintenance — How enforced. — Per- mission to construct and operate a street railroad in the streets of a city, although accepted by the company, does not create such an obligation upon it as may be enforced in equity or by mandamus. But if the company has entered upon the streets and made a partial construction of its track, the duty to complete it according to the provisions of its charter or franchise is imperative, and its per- formance may be so enforced. 84 If the charter or franchise re- quires the construction to be completed within a limited time, and also provides that otherwise the company's rights should be for- feited, a proceeding to have the forfeiture declared and enforced may be successfully maintained, 85 unless the failure to complete the road is in nowise the fault of the company; as for example Stamford Horse R. Co. v. Stamford, 41 L. R. A. 515, 11 Am. 4 Eng. R. 56 Conn. 381, 15 Atl. 749, 36 Am. & Cas. (N. S.) 62; People v. Rome, W. Eng. R. Cas. 140; Commonwealth v. & O. R. Co., 103 N". Y. 95, 8 N. E. Erie, etc., R. Co., 27 Pa. St. 339 ; 369. A railroad constructed in a city Panning v. Osborne, 102 N. Y. 441, 7 street under legislative and munici- N. E. 307, 25 Am. & Eng. R. Cas. 252. pal sanction is not a nuisance if laid 81. Ohio & Mississippi Ry. Co. v. down in the most approved mode of People, 100 111. 200, 30 Am. & Eng constructing street railroads. Ran- R. Cas. 509. dall v. Jacksonville St. R. Co., 19 82. People v. Atlantic Ave. R. Co., Pla. 409. 125 N. Y. 513, 26 N. E. 622. 85. People v. Broadway R. Co., 83. Hartford, City of, v. Hartford 126 N. Y. 29, 26 N. E. 961, 48 Am. & St. R. Co., 73 Conn. 327, 47 Atl. 330. Eng. R. Cas. 692; Hovelman v. Kan- 84. State, Grinsfelder v. Spokane sas City H. R. Co., 79 Mo. 632, 20 St. R. Co., 19 Wash. 518, 53 Pac. 719, Am. & Eng. R. Cas. 17; People v. 308 REGULATION AND CONSTRUCTION GENERALLY. § 133 when there has been interference on the part of the city authorities or by the courts. 86 If after the expiration of the time the munici- pality permits the company to proceed with the work of construc- tion it may be estopped from claiming a forfeiture. 87 If it be provided that the road shall be " completed within one year, and so much of said right of way as may not be occupied by said com- pany within said time shall be considered abandoned," the com- pany forfeits its right to construct the unfinished portion of the road after the expiration of the year. 88 § 133. Placing electrical conductors underground. — Although under due authority of law and municipal consent an electrical street surface railroad has constructed its road, placing its poles upon and stringing its wires along the streets of a city, it does not follow that it has a right permanently to carry the electricity requisite for the successful operation of its road in such manner. The exercise of its rights is subject always to the regulation and control of the legislature. By giving the franchise the State did not abdicate its power over the public streets, nor in any way cur- tail its police powers to be exercised for the general welfare of the people, nor absolve itself from its primary duty to maintain the streets and highways of the State in a safe and proper condition for public travel and other necessary street and highway purposes. The grant of a right in the street, if any there be, in such a fran- chise was made in reference to the streets and their maintenance and regulation forever as streets. The State could at all times regulate the size and location of the poles, the height of the wire from the surface of the ground and their location in the streets; and when the poles and wires become a serious obstruction and nuisance in the streets from any cause, it could take such action Los Angeles El. R. Co., 91 Cal. 338, Market St. & W. G. R. Co., 90 Cal. 27 Pac. 673. 37, 27 Pac. 61. See section 50, herein. 87. New Orleans, C. & L. R. Co. v. 86. State v. Cockren, 25 La. Ann. City of New Orleans, 44 La. Ann. 536; Coney Island, Ft. H. & B. R. 748, 11 So. 77. Co. v. Kennedy, 15 App. Div. (N. Y.) 88. Mayor, etc., of City of Hous- 588, 44 N. Y. Supp. 825; Chicago v. ton v. Houston Belt & M. P. Ry. Co., Chicago, etc., R. Co., 105 111. 73, 10 84 Tex. 581, 50 Am. & Eng. R. Cas! Am. & Eng. R. Cas. 306; Schmidt v. 380, 19 S. W. 786. 309 § 133 REGULATION AND CONSTRUCTION GENERALLY. and make such provisions by law as were needful to remove the nuisance and restore the utility of the streets for public purposes. 89 In the large cities of the land these poles and wires have become a serious obstruction and nuisance in the streets, and the legisla- ture has, either directly in the charters granted to the cities or by general provision of law, authorized the making of subways within which the municipality might direct that all electrical conductors 89. American Rapd Tel. Co. v. Hess, 125 N. Y. 641, 646, 26 N. E. 919. In the case cited the court fur- ther said : " The right of the plain- tiff to maintain and operate its wires in the streets could certainly be no greater than the right of railroads, which by public authority occupy the streets and highways of the State. The State, in the exercise of its police power, and the regulating control which it has over corporations cre- ated by its authority, may exercise a general supervision over such corpo- ration. It may prescribe the loca- tion of the tracks, the size and char- acter of the rails, the precautions which shall be taken for the protec- tion of the public and the character and style of highway crossings; and no one has ever questioned that it may do whatever is necessary and proper for the public welfare in the control and regulation of the fran- chises which such corporations have obtained by statutory authority." The opinion of Judge Earl also contains the history of the subways legislation theretofore had in the State, and it is there said, page 648: " Subways having been constructed in certain of the streets of the city of New York by the Consolidated Tele- graph and Electrical Subway Com- pany, under the supervision and with the approval of the board of electri- cal control, notice was given to the plaintiff, as provided in the act, to remove its poles and wires form the streets, and place its electrical con- ductors in such subways. Having re- fused to comply with such notice and with the provisions of the act, the commissioner of public works of the city caused the poles to be cut down and the wires to be removed from the streets; and this is what the plaintiff complains of. Its property was not taken for public use; it was simply removed from the streets where it had become a nuisance, and the pub- lic authorities had the same right to remove it from the streets, doing no unnecessary damage, that it had to remove any other incumbrance there- from. After the passage of the acts referred to and the building of the subways, and the notice to the plain- tiff, it had no right longer to main- tain its poles and wires above the surface of the street. They were then there without authority, and thus became a nuisance, and hence the pub- lic officials had the right to remove them." State v. Street Com'r, 71 Conn. 657, 42 Atl. 1083, 7 Am. Electl. Cas. 124; Chesapeake & P. Tel. Co. v. Baltimore, 89 Md. 689, 43 Atl. 784, 44 Atl. 1033, 7 Am. Electl. Cas. 135 ; Chesapeake & P. Tel. Co. v. City of Baltimore, 90 Md. 638, 45 Atl. 446, 7 Am. Electl. Cas. 151; Balti- more v. Telephone Co., 92 Md. 692, 48 Atl. 465, 7 Am. Electl. Cas. 158; Northwestern Telephone Exchange Co. v. City of Minneapolis, 81 Minn. 140, 83 N. W. 527, 86 N. W. 69, 7 Am. Electl. Cas. 168, 179. 310 REGULATION AND CONSTRUCTION GENERALLY. § 133 should be placed. In New York, as early as 1884, a law was enacted requiring practically all electric and other wires and cables to be removed from the surface of all streets or avenues in every city of the State having a population of 500,000 or over. 90 The trend of legislation seems to be toward authorizing munici- palities to build the necessary subways, or to empower a private corporation to build the same under municipal direction and con- trol, and require all corporations using electricity for light, heat, or power to place their wires within such subways, upon terms to be arranged with the corporation controlling the subway, subject, however, to the supervision of the municipality. It cannot be suc- cessfully claimed that a corporation whose business requires it to convey electricity within the limits of a municipality cannot be compelled to place its electrical conductors in such a subway with- out violating rights guaranteed to the corporation by the Fed- eral Constitution, simply because it has a franchise previously granted; unless the subways were so constructed as to require wires of different voltage to be placed in close proximity and in such manner as to materially interfere in the proper management of the corporation's business The interference, however, would have to amounnt to a substantial denial of the right to exercise the privileges acquired by it under the legislative authority of the State. 91 The city must see to it that reasonable ^skill in construct- 90. Laws of 1884, chap. 534. By 716 of 1887, 231 of 1891, and 263 of chapter 499 of 1885, provision was 1892, and the laws amendatory there- made fn detail for enforcing the Act of and supplemental thereto, of 1884 in all cities of the State hav- 91. City of Rochester v. Bell Tel. ing more than 500,000 and less than Co., 52 App. LMv. (N. Y.) 6, 64 N. Y. 1,000,000 of population; and the Supp. 804; People ex rel. N. Y. Elec- mayor, comptroller, and commissioner trical Lines v. Squire, 107 N. Y. 593, of public works of such cities were 14 N. E. 820, 2 Am. Electl. Cas. 176. authorized and directed to appoint In the case last cited Chief Judge three disinterested persons, residents Rugeb, in reference to such statutes, of the respective cities for which they said : " The necessity of these acts should be appointed, to be a, board of sprung out of the great evil, which, commissioners of electrical subways. in recent times, has grown up and The statutes particularly appli- afflicted large cities by the multipli- cable to New York city are sections cation of rival and competing com- 525 and 526 of the Charter of the panies, organized for the purpose of City of New York, vol. 3, Laws of distributing light, heat, water, the New York of 1901, p. 235, and chap. transportation of freight and passen- 311 § 133 REGULATION AND CONSTRUCTION GENERALLY. ing its conduits is exercised, to the end that the operations of the corporation using a weak curient shall not be embarrassed by the presence in the same conduit of wires charged with powerful cur- rents of electricity. Where the statute leaves it discretionary with gers, and facilitating communication between distant points, and which re- quire in their enterprises the occupa- tion, not only of the surface and air above the streets, but indefinite space underground. This evil had become .so great that every large city was covered with a network of cables and wires attached to poles, houses, build- ings, and electric structures, bringing danger, inconvenience, and annoyance to the public. * * * These statutes were obviously intended to restrain and control, as far as practicable, the evils alluded to by requiring all such wires to be placed underground in such cities, and be subject to the con- trol and supervision of local officers who could reconcile and harmonize the claims of conflicting companies, and obviate, in some degree, the evils which had grown up almost, if not quite, intolerable to the public. The scheme of these statutes was not to annul or destroy the contract rights of such companies, but to regulate and control their exercise." Upon appeal to the United States Supreme Court the decision of the New York Court of Appeals was af- firmed, and with reference to the right of the city to control the sub- ways the Supreme Court said : " It would be an anomaly in municipal administration if every corporation that desired to dig up the streets of the city and make underground con- nection for sewer, gas, water, steam, electricity, or other purposes should be allowed to proceed upon its own theory of what were plans for it to adopt and proper excavations to make. The evils that would follow from such a system of practice would be a great gravity to the public, and would entail endless disputes and bickerings with prior parties having equal rights. The utmost that can be said against the Acts of 1885 and 1886 is that they transferred the su- pervision and control of the matters of excavation of the streets and the construction of underground electrical systems from the commissioner of public works to the board of subway commissioners. That is the sum total of the change effected. Not a right of the electrical companies was violated, and no contract was impaired. The expressly reserved power of the State or municipality to regulate the use of the streets and highways in such man- ner as not to injuriously affect the public interests are merely trans- ferred from one public functionary to another. The power was not enlarged ; only the agency by which the super- vising power of the State was to be exercised was changed." People ex rel. New York Electrical Line v. Squire, 145 U. S. 175, 190, 12 S. Ct. 880, 36 L. ed. 666, 671. It is not ultra vires for a munici- pal corporation empowered by its charter to regulate the use of streets to enact an ordinance empowering a private corporation organized for pub- lic purposes, to occupy streets by sub- ways and electrical apparatus, with- out requiring that all the public be permitted to use the subways, and without reserving to the municipal authorities the right of supervision or control. State ex rel. Nat. Sub- way Co. v. St. Louis, 145 Mo. 551, 46 S. W. 981, 7 Am. Electl. Cas. 195. 312 REGULATION AND CONSTRUCTION GENERALLY. § 133 the city whether it shall itself construct the conduits or allow the electrical corporations to do so, the determination of the city to build the conduits and their subsequent construction by it, makes it obligatory upon the electrical corporations to use them; and they cannot avoid the obligation because the city has made no rules in regard to such use. The court will assume that suitable rules will be made by the city, and that reasonable facilities and protection will be afforded to each corporation required to use the subway. 92 An exclusive right to maintain subways and conduits for electrical conductors in the streets of a city and to compel all persons and corporations using such conductors to place them in the subways and pay rent for the privilege can only be acquired by contract or by statute. 93 A subway company is not a common carrier. It does not invite employment from the public generally, nor obligate itself to serve the public generally. The business is purely a private one. 94 The occupancy of a subway by a com- And see Rochester v. Telephone Co., 7 Am. Electl. Cas. 211, 52 App. Div. (N. Y.) 6, 64 N. Y. Supp. 804; Com- monwealth v. Mayor, 185 Pa. St. 623, 7 Am. Electl. Cas. 219; Western Union Tel. Co. v. City of Syracuse, 24 Misc. Rep. (N. Y.) 338, 33 N. Y. Supp. 690; State ex rel. Laclede Gas Light Co. v. Murphy, 130 Mo. 10, 31 S. W. 594, 5 Am. Electl. Cas. 71; Prentiss v. Cleveland Tel. Co., (Ohio Com. PI.) 5 Am. Electl. Cas. 125, 32 W. L. B. 113. 92. Matter of Geneva v. Geneva Tel. Co., 30 Misc. Rep. (N. Y.) 236, 62 N. Y. Supp. 172. 93. Empire City Subway Co. v. Broadway & S. A. R. Co., 87 Hun (N. Y.) 279, 283, 33 N. Y. Supp. 1055, 5 Am. Electl. Cas. 66. In the case cited it was also held that » street surface railroad company lawfully using a cable for motive power in New York city, upon condition and under obli- gation to use every provision that ingenuity can suggest to operate the cable with safety, may lawfully con- struct upon its roadbed and use an iron pipe containing electric wires for use in communicating between its power house and its signal boxes in- telligence relating to the operation of the road, and in order to stop the cable in case of an accident upon its lines, and need not put such wires in the subways of the plaintiff. The New York Subway Statutes of 1884 and 1885 were held constitu- tional in the cases above cited, and also in Clausen, etc., Brewing Co. v. B. & O. Tel. Co., (NY.) 2 Am. Electl. Cas. 210; Western Union Tel. Co. v. New York, 38 Fed. 552 ; United Lines Tel. Co. v. Grant, 137 N' Y. 7, 32 N. E. 1005. 94. State v. Murphy, 6 Am. Electl. Cas. 64, 77, 134 Mo. 548, 31 S. W. 784, 34 S. W. 51, 35 S. W. 1132. The case cited also held that an ordinance granting to a subway corporation power to lay a subway for electrical wires under all the streets of the city for a period of fifty years was invalid because the city did not reserve con- 313 § 134 REGULATION AND CONSTRUCTION GENERALLY. pany using electrical conductors with knowledge of the rental de- manded, constitutes a contract with the subway company to pay the rental. 95 An action may be maintained by a taxpayer to pre- vent the execution of a proposed contract with a subway company, if the contract fail to bind the company to construct the subways within the time limited by law. 96 The New Jersey act for the placing of electrical conductors underground, etc., does not author- ize the board of commissioners of electrical subways thereby created to grant a franchise for erecting poles and wires in the streets for the transmission of electricity. 97 . § 134. lessee's or transferee's liability. — Where a lease of a city railroad is duly authorized by law, the lessee only is liable for the negligence in its operation. 98 But in the absence of a statu- tory provision therefor the lessor company cannot exempt itself from liability to the public by the mere contract of letting. 99 trol over the excavations, the laying of wires and all other incidents to the maintenance, construction, and use of the subway. 95. Brush Electric Illuminating Co. v. Consolidated Telegraph & Elec- trical Subway Co., 60 Hun (N. Y.) 446, 15 N. Y. Supp. 477. Under New York Act of 1887, chap. 716, creating the board of electrical control, such board has the duty of determining all questions as to the placing, erect- ing, constructing, suspension, use, regulation, or control of electrical conductors in the city of New York. United States Illuminating Co. v. Hess, 19 St. Rep. (N. Y.) 883, 3 N. Y. Supp. 777. 96. Armstrong v. Grant, 56 Hun (N. Y.) 226, 9 N. Y. Supp. 388. 97. Trustees of Presbyterian Church of Tronton v. State Board of Com'rs of Electrical Subways R. Co., 55 N. J. L. 436, 27 Atl. 809. 98. Pinkerton v. Pennsylvania 314 Traction Co., 193 Pa. St. 229, 44 Atl. 284; Stelk v. McNulta, 99 Fed. 138, 44 C. C. A. 357; Huntting v. Hart- ford St. Ry. Co., 73 Conn. 179, 46 Atl. 424; Mendoza v. Met. St. Ry. Co., 51 App. Div. (NY.) 430, 64 St. Rep. (N. Y.) 745; Reidman v. Brook- lyn, Q. C. & S. R. Co., 28 App. Div. (N. Y.) 540, 51 N. Y. Supp. (85 St. Rep.) 196. 99. Hanlan v. Phila. & W. C. Turnpike Co., 122 Pa. St. 115, 40 W. N. C. 520, 37 Atl. 943, 28 Pittsb. L. J. (N. S.) 97. And see § 15. Where the lease is authorized by statute, the lessor takes by necessary implication the benefit of a provision in the charter to the lessor that it shall be required to keep in repair only so much of the street as is with- in its tracks. Philadelphia v. Phil- adelphia City Pass. Ry. Co., 177 Pa. St. 379, 35 Atl. 720; Mullen v. Phila. Tract. Co., 20 W. N. C. 203. BEGULATIONS AS TO OPEEATION. § 135 CHAPTER VII. Regulations as to Operation. Section 135. Regulation as to servants. 136. Regulation — Screens for motormen. 137. Regulation as to rate of fare. 138. Regulation as to tickets — Reduced rate tickets. 139. Regulation as to transfers. 140. Regulation as to fare and transfers — New York statute. 141. Regulation as to fare and transfers — New York statute con- tinued. 142. Regulation as to separation of races. 143. Regulatibn as to care and manner of running cars generally. 144. Regulation as to speed. 145. Regulation as to stopping cars before crossing intersecting streets or tracks. 146. Regulation — Stopping for passengers. 147. Stopping cars — Ordinance as to proceeding to punish for vio- lation of not enjoined. 148. Regulation — Keeping vigilant watch. 149. Regulation as to brakes. 150. Regulation as to fenders. 151. Regulations as to care of streets — Removing dirt, snow and ice, etc. 152. Regulation — Watering of tracks. 153. Regulation — Use of salt and ashes. § 135. Regulation as to servants. — A municipal corporation, empowered by its charter to regulate its streets and to prescribe the manner of their use by any person or corporation, has exclusive power to determine, in the first instance, how the space within the bounds of the highway shall be appropriated to the various uses of the highway. 1 And, within its police power, unless limited by statute or contract with the company, it may determine and direct, within reasonable bounds, as to the servants and appliances to be employed in operating cars upon a street surface railroad within the highway. It may enact that electric railroad cars should not be run without a conductor. 2 And it has been held 1. Budd v. Camden Horse R. Co., 2. State, Columbia Electric Street 61 N. J. Eq. 543, 48 Atl. 1028. Railways Light 4 Power Co. v. 315 § 136 BEGULATIONS AS TO OPERATION. to be a proper exercise of the police power of a city to require that a street car company shall have " a driver and conductor " on each car. Such an ordinance is not an impairment of the company's rights as being unreasonable or oppressive. 3 So an ordinance re- quiring the employment of one conductor and one motorman upon each electric car is not to be construed as requiring a conductor and a motorman on trailers. 4 § 136. Regulation — Screens for motormen. — It is within the authority of the legislature in the exercise of its police power to determine by general laws what, if any, regulations are required for the protection of the health, safety, and comfort of operatives of street railroad cars. So the legislature may require the main- tenance of screens inclosing the front platforms of electdic motor cars during the winter months for the protection of motormen, and such an act does not contravene a constitutional provision that all general laws shall have a uniform operation throughout the State. 5 And such an act is not unconstitutional as being class Sloane, 48 S. C. 21, 25 S. E. 898, 6 Am. Electl. Cas. 57. In the case cited the court said : " Not only is there an absence of legislative intent to prevent the authorities of the city of Columbia from reserving its pow- ers of police in regard to the street railways, but the trend of the various legislative enactments relative there- to, and hereinbefore mentioned, is to make the running of the street cars subject to the rules and regulations prescribed by the city council. This police power of the city seems to have been recognized by the peti- tioner when it filed its petition with the city council asking permission to be allowed to make such changes in its line as were necessary to enable it to operate its cars by electricity, and with such petition presented the draft of an ordinance to accomplish that result, in which it was provided that the city council should have the power ' and hereby reserves the right to regulate, by ordinance, the manner of operating such electric railway, and to alter and amend the ordi- nances relating thereto by such other enactment as in their judgment the public welfare may demand.' The au- thorities are not in harmony touch- ing the abstract question whether mu- nicipal authorities have the right to make a regulation that the street cars shall not be operated unless in charge of a conductor." No statute or ordinance otherwise requiring a horse car in a city may be run without a conductor. Dunn v. Cass Ave., etc., R. Co., 21 Mo. App. 188. 3. South Covington &, C. St. R. Co. v. Bery, 93 Ky. 43, 18 S. W. 1026, 40 Am. St. Rep. 161, 15 L. R. A. 604. Compare Brooklyn Crosstown R. Co. v. City of Broklyn, 37 Hun (N. Y.) 413. 4. Von Diest v. San Antonio Trac- tion Co., 33 Tex. Civ. App. 577, 2 St. Ry. Rep. 902, 77 S. W. 632. 5. State v. Nelson, 52 Ohio St. 88, 316 BEGULATIONS AS TO OPEEATION. § 13<3 legislation because it is confined in its operation to street cars pro- pelled by cable, steam, or electricity and does not apply to street cars drawn by mules and horses, or carriages or wagons. 8 In a case in Missouri a statute requiring such screens for electric cars and imposing a fine for each and every day that such a car was oper- ated without a screen, was held not to be special legislation be- cause only applicable to electric cars. And it was also held not to be unconstitutional as imposing cruel or unusual punishment, or as depriving of life, liberty, or property without due process of law, in that it deprived motormen of their liberty of contract. 7 5 Am. Elee. Cas. 619, 39 N. E. 22. See Beaumont Traction Co. v. State, 46 Tex. Civ. App. 576, 6 St. Ry. Rep. 777, 103 S. W. 238. Compare City of Yonkers v. Yon- kers Ry. Co., 51 App. Div. (N. Y.) 271, 64 N. Y. Supp. (98 St. Rep.) 955, holding that where the statute au- thorizes the common council of the city to make such reasonable regula- tions and ordinances as to the rate of speed, mode of use of tracks and removal of ice and snow as the in- terests or convenience of the public may require, it relates solely to the preservation of the interests and con- venience of the public in the use of the streets and tracks as such, and any regulations, to be lawful, must be directed to matters connected with the construction and operation of the cars which in some manner involve and affect the streets and tracks and their use, and that, therefore, the common council would have no au- thority to direct that during the win- ter months no car should be operated upon any street railroad of the city unless such car should have a vesti- bule built upon each end thereof suf- ficient to afford protection from the weather to motormen, conductors, and others standing upon the platforms of such cars. However reasonable such ordinance may be in itself it is to be condemned as an exercise of a power not inherent to municipal ex- istence, an interference with the af- fairs of the company which the legis- lature has failed and apparently re- fused to authorize, and the assertion of a right on the part of the city which it did not, so far as appears, reserve to itself as a condition of the consent to the use of its streets by the company. 6. State v. Hoskins, 58 Minn. 35, 5 Am. Electl. Cas. 614, 59 N. W. 545. 7. State v. Whitaker, 160 Mo. 59, 7 Am. Electl. Cas. 806, 60 S. W. 1068. The court said, as to the charge, that the act imposed cruel and unusual punishment, that every act imposing a fine might, by the same token, be held cruel and unusual punishment and that the way to avoid the cruelty was to obey the law and avoid the accumulated fines. As to the charge that the act was contrary to the provision of the Con- stitution, " that no person shall be deprived of life, liberty or property without due process of law," it was said: "Inasmuch as this is a public prosecution by the State of an offense against the public, it is difficult to discern the relevancy of the argu- ment and decisions to the effect that this statute deprives the motormen on electric cars of their liberty of con- 317 § 137 REGULATIONS AS TO OPEEATION. § 137. Regulation as to rate of fare. — It may be stated gen- erally that rates of fare upon street surface railroads are regu- lated by statute in the several States. It is generally provided that a rate not exceeding a stated fee shall be charged for one continuous passage over the lines of a street surface railroad com- pany within a municipality, including all its branches, extensions, and leased lines, and including lines of other roads with which traffic arragements have been made. Although by its charter a railroad corporation is given power to fix rates, such power is subject to change unless clearly stipulated to the contrary. But neither the legislature nor any commission acting under the authority of the legislature can establish, arbitrarily and without regard to justice and right, a tariff of rates for fares and trans- portation which is so unreasonable as to practically destroy the value of property of persons engaged in the carrying business, on the one hand, nor so exorbitant and extravagant as to be in utter disregard of the rights of the public for the use of such trans- portation, on the other. The question of the reasonableness of the rate is always a judicial one. 8 In view of the public interests tract. The premise upon which the government did not limit its right to argument is based is not true. It is not true that this act was not de- signed to protect the public health. This is not only its proposed purpose but the body of the act confirms it. It is a plain, just, and commendable police regulation." Per Gantt, J. 8. United States. — Smyth v. Ames, 169 U. S. 523, 42 L. ed. 841, 18 Sup. Ct. Rep. 425 (restraining enforce- ment of Nebraska Act of 1893) ; Cov- ington & L. Turnpike Road Co. v. Sanford, 164 U. S. 578, 41 L. ed. 565, 17 Sup. Ct. Rep. 198; St. Louis & S. T. Ry. v. Gill, 156 U. S. 649, 39 L. ed. 484, 15 Sup. Ct. Rep. 488; Chi- cago, M. & St. P. Co. v. Minnesota, 134 U. S. 418, 10 S. Ct. 462, 702, 33 L. ed. 970; Minneapolis Eastern R. Co. v. Minnesota, 134 U. S. 467, 469, 482, 33 L. ed. 985, 987, 991, 10 Sup. Ct. Rep. 473, 477 ; Atlantic, etc., R. v. United States, 76 Fed. 192 (holding fix reasonable rates) ; Mercantile Trust Co. v. Texas & Pacific Ry., 51 Fed. 533, 540, 542 (restraining en- forcement of Texas Railroad Com- mission Act of 1891 ) ; Inter-State 'Commerce Commission v. Baltimore, etc., Ry., 43 Fed. 42 (refusing to en- join sale of party-rate tickets). Kansas. — Railroad Comrs. v. Symns Grocer Co., 53 Kan. 207, 212, 35 Pac. 219; State v. Kansas Central R., 48 Kan. 506, 28 Pac. 211 (holding com- missions recommended for railroad repairs, etc., not conclusive on court). Maine. — State v. Edwards, 86 Me. 106, 41 Am. St. Rep. 531, 29 Atl. 948, 25 L. R. A. 506. Massachusetts. — Atty.-Gen. v. Old Colony R., 160 Mass. 87, 35 N. E. 256, 22 L. R. A. 118. Michigan. — Wellman v. Chicago & G. T. Ry. Co., 83 Mich. 592; affd., Chicago & G. T. Ry. Co. v. Wellman, 318 REGULATIONS AS TO OPERATION. 131 and the vast number of people to be affected and the controversies, confusion, risks, and multiplicity of suits which would necessarily be occasioned by a resistance to the enforcement of an ordinance by which rates of fare are reduced, and which is claimed to be unconstitutional as an impairment of contract obligations, it is within the jurisdiction of a court of equity to enjoin its enforce- ment. 9 It should be remembered that the legislature has the power to fix the rates, and the extent of judicial interference is protection against unreasonable rates. 10 The legislature may dele- 143 U. S. 344, 36 L. ed. 179, 12 Sup. Ct. Eep. 402, 47 N. W. 494. Nebraska. — State ex rel. Board of Transportation v. Sioux City, O. & W. R. Co., 46 Neb. 682, 65 N. W. 766, 31 L. E. A. 52 (holding statute arbitrarily fixing the same price for long and short haul between same points invalid ) . North Carolina. — Griffin v. Golds- boro Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 242. In Buffalo E. S. R. Co. v. Buffalo St. R. Co., Ill N. Y. 132, 19 N. E. 63, the court said : " The same au- thority which confers upon one body the power of legislation, authorizes its successors, in the exercise of their duty, to change, alter and annul ex- isting laws when, in their judgment, the public interest requires it. In the performance of their duty of leg- islating for the public welfare, each successive body must, from necessity, be left untrammeled except by the re- straints of the fundamental law and when called upon to act upon sub- jects which concern the health, mor- als or interests of the people, as af- fected by a public use of property for which compensation is exacted by its owners, they are unlimited by constitutional restraint." Railroad corporations hold their property and exercise their functions for the public benefit, and they are, therefore, subject to legislative con- trol. The legislature, which has cre- ated them, may regulate the mode in which they shall transact their business, the price which they shall charge for the transportation of freight and passengers, etc. * * * It may make all such regulations as are appropriate to protect the lives of persons carried upon railroads or passing upon highways crossed by railroads. All this is within the judgment of legislative power, al- though the power to alter and amend the charter of such corporation has not been reserved. * * * Such legis- lation violates no contract, takes away no property, and interferes with no vested right. People v. Boston & Al- bany R. Co., 70 N. Y. 569; Mclnerney v. Denver, 17 Colo. 302, 37 Am. & Eng. Corp. Cas. 424, 29 Pac. 516. Where tolls have been pledged by bonds as authorized by statute to secure the payment of principal and interest a subsequent statute de- creasing the tolls is unconstitutional as impairing the obligation of a con- tract. In re Opinion of the Justices, 190 Mass. 605, 77 N. E. 1038. 9. City of Cleveland v. Cleveland City Ry. Co., 194 U. S. 517, 24 S. Ct. 756, 48 L. ed. 1102; affg. Cleveland City Ry. Co. v. City of Cleveland, 94 Fed. 385. 10. Chicago & G. T. Ry. Co. v. 319 § 137 EEGULATIONS AS TO OPERATION. gate to the municipal authorities the power, within reasonable limits, to fix the rates of fare and to adopt and enforce ordinances on matters of special local improvement, although general statutes exist upon the same subjects. 11 And a municipal corporation under a delegation of power from the legislature may within rea- sonable limits fix the rates of fare and adopt and enforce ordi- nances in respect thereto. 12 And when the power is so delegated the city cannot, by resolution or otherwise, abrogate its power with reference to the grantee of any particular franchise. 13 But power of a municipality to fix rates does not authorize it to pre- scribe unreasonable rates which will deprive the company of prop- erty rights by preventing reasonable compensation for its service, and thus amount to a taking of property without due process of law in violation of the Constitution of the United States. 14 And where the charter of a street railway company merely makes its rates subject to approval of the municipal authorities, such authori- ties cannot, by ordinance, fix rates, as the power to approve is not the power to fix. 15 Again, charter authority to a city to pass all by-laws concerning " carriages, wagons, carts, drays," etc., " and every by-law, ordinance and regulation that it may deem proper for the peace, health, order or good government of said city," does not authorize the passage of an ordinance fixing the rate of fare which Wellman, 143 TJ. S. 339, 12 S. Ct. including the right to regulate the 400, 36 L. ed. 176; Stone v. Farmers' rates of fare to be exacted. Forman Loan & Trust Co., 116 U. S. 307, 6 v. New Orleans & C. R. Co., 40 La. S. Ct. 334, 388, 1191, 29 L. ed. 636; Ann. 446, 4 So. 246. And see Balti- Railway Co. v. Ryan, 56 Ark. 245, 19 more & Y. Tp. Rd. v. Boon, 45 Md. S. W. 839; Clyde v. Richmond, etc., 344; Ellis v. Milwaukee City Ry. Co., R. Co., 57 Fed. 439 (entertaining bill 67 Wis. 135, 30 N. W. 218. for relief against action of commis- 12. Forman v. New Orleans & C. sioners) ; City of Indianapolis v. R. Co., 40 La. Ann. 446, 4 So. 246; Navin, 151 Ind. 139, 47 N. E. 525, 51 Sternberg v. State, 36 Neb. 307, 54 N. E. 80, 41 L. R. A. 340, sustaining N. W. 553, 19 L. R. A. 570; Ellis v. ordinance for three-cent fares. Milwaukee City Ry. Co., 67 Wis. 135, 11. Indianapolis v. Naviri, 151 Ind. 30 N. W. 218, 58 Am. Rep. 858. 139, 47 N. E. 525, 51 N. E. 80, 41 L. 13. Milhau v. Sharp, 17 Barb. R. A. 340. Under the constitutional (N. Y.) 435. laws of Louisiana, New Orleans is 14. Milwaukee Elec. Ry. & L. Co. clothed with full and exclusive power v. City of Milwaukee, 87 Fed. 577. to grant franchises for the construe- 15. Old Colony Trust Co. v. City tion and operation of passenger street of Atlanta, 83 Fed. 39. railways within its corporate limits, 320 BEGULATIONS AS TO OPEBATION. § 138 a street railway company may charge. 16 An individual cannot maintain an action to restrain a street railroad company from charging fare at a rate in excess of that permitted by law ; but the remedy is by a proceeding with the attorney-general to vacate its charter. 17 A common carrier operating a street railroad is bound by the representation made bv one of its conductors to a passenger that its car will carry him between two points for a fare named. 18 § 138. Regulation as to tickets — Reduced rate tickets. — Where the ordinance under which a street railway company is operating reserves to the municipality the right " to make such further rules, orders or regulations as may from time to time be deemed neces- sary to protect the interest, safety, welfare or accommodation of the public," the city may enact an ordinance requiring that the company shall, for the accommodation of the public, keep tickets for sale upon the cars. 19 A franchise to a street railroad company by a township, providing for the sale of trip tickets on cars of tlie company at a reduced rate between a village in the township and a city without the township, requires such tickets to be sold on cars at any point on the line, and does not limit such sale to the line within the township granting the franchise. 20 Where it is pro- vided by the Constitution of a State that all privileges and fran- chises granted by the legislature or created under its authority shall be subject to its control, and such provision was in force 16. Old Colony Trust Co. v. City Where the tickets are sold in two of Atlanta, 83 Fed. 39. parts, one of which is good to a main 17. McNulty v. Brooklyn Heights point on the line and the other part R. Co., 31 Misc. Rep. (N. Y.) 674, good for the remainder of the trip, 66 N. Y. Supp. (100 St. Rep.) 57. the railroad company will not be 18. Wright v. Glens Falls, S. H. & heard to say in an action for dam- Ft. E. St. R. Co., 24 App. Div. (N. ages for refusal to sell five tickets to Y.) 617, 48 N. Y. Supp. (82 St. Rep.) one who had paid his fare on the first 1026. part of the line with a stub, intending 19. City of Detroit v. Ft. Wayne to pay for the remainder of the trip & Belle Isle Ry. Co., 95 Mich. 456, with a stub from the new tickets, 54 N. W. 958, 35 Am. St. Rep. 580. that the franchise called only for the 20. Rice v. Detroit, Y. & A. A. R. acceptance of a through ticket for the Ry. 122 Mich. 677, 81 N. W. 927, 48 payment of fare, and hence plaintiff L. R. A. 84. In the case cited it was cannot recover for defendant's failure held that, the franchise requiring the to furnish a ticket in two parts not sale of five tickets for fifty cents, called for by the franchise. 21 321 § 139 REGULATIONS AS TO OPERATION. prior to a contract between a street railway company and a city regulating the rate of fare to be charged, the obligation of such contract is not violated, nor is such company deprived of its prop- erty without due process, or denied the equal protection, of the law by a statute requiring the issuance of half-fare tickets to school children. 21 In construing an ordinance relating to the sale of tickets at reduced rates to " pupils " attending school, the word pupils has been held not to be limited to young people in attend- ance upon institutions of a' subordinate character, but to be of broader signification, and to embrace classes of young persons re- ceiving instruction at an advanced institution of learning, such as a business college. Thus it was so held where a railway company proposed that an ordinance should contain a provision that " said railway shall place on sale for the accommodation of children going to and from school, tickets at half rates," which language the city council refused to adopt, and substituted therefor the ex- pression " pupil presenting a certificate of enrollment in some school." 22 § 139. Regulation as to transfers. — Power conferred upon a municipal corporation to fix the rate of fare to be charged by street railways includes the power to fix the rate for carrying passengers over two lines operated by one company, and to provide for trans- fers, as well as the power to fix the rate for carrying a passenger over one line operated by such company, the question being not as to the reasonableness of the charge, but as to the power to regu- late or fix the charge. 23 And a city ordinance to correct abuses of the transfer system by compelling a passenger to use his trans- fer within the time limit and prohibiting him from selling it or giving it away is not unreasonable or oppressive. 24 But a statute or ordinance requiring a street railway company to issue trans- fers at points of intersection of its lines will not prevent such a company from making a regulation limiting the use of a transfer 21. San Antonio Tr. Co. v. Atlgeld, 23. Chicago Union Traction Co. v. (Tex. Civ. App.) 3 St. Ry. Rep. 852, City of Chicago, 199 111. 484, 65 N. 81 S. W. 106. E. 451, 59 L. R. A. 631. 22. Northrop v. City of Richmond, 24. Ex parte Lorenzen, 128 Cal. 105 Va, 335, 5 St. Ry. Rep. 841, 53 431, 50 L. R. A. 55, 61 Pac. 68. S. E. 962. 322 REGULATIONS AS TO OPERATION. § 1+0 so issued to the time specified by punch marks thereon. 25 Where cars are operated making a continuous trip between certain points, and other cars are operated making only a portion of such trip, a passenger desiring to be transported between those points must take the former car, and. is not entitled to a transfer from cars running only a part of the distance. 26 Where the obligations of a street railway company to give transfers arise wholly from a contract as the result of the company's assent to certain municipal ordinances which have no legislative force, the benefits of the con- tract are to be enjoyed not by the city in its corporate capacity, but by the individual passenger within the city limits. The rights thus created are private ones, the denial of which may be the subject of private action, and it is decided that mandamus should not issue at the suit of the municipal corporation to com- pel the company to give transfers, it not being an appropriate remedy to enforce private rights. 27 An ordinance requiring sepa- rate street railway companies to mutually accept transfers issued to passengers by each other, each company to carry such trans- ferred passengers over its lines without charge, has been held to be unconstitutional and void as depriving each company of its property without due process of law. 28 § 140. Regulation as to fare and transfers — New York statute. — In New York the matter is controlled by sections 101 and 104 of the Railroad Law. 29 The New York Railroad Law cited con- 25. Gainson v. United Railways A 27. Mayor of Newark v. North Elec. Co., 97 Md. 665, 1 St. Ry. Rep. Jersey St. Ry. Co., 73 N. J. L. 265, 267, 55 Atl. 371. 4 St. Ry. Rep. 736, 62 Atl. 1003. 26. Roach v. Brooklyn Heights R. 28. Chicago City Ry. Co. v. City Co., 119 App. Div. (N Y.) 520, 104 of Chicago, 142 Fed. 844, 4 St. Ry. N. Y. Supp. 219. Rep. 182. Compare Baron v. New York City 29. Chap. 565 of 1890, § 101, as Ry. Co., 52 Misc. Rep. (N. Y.) 581, 5 amended by chap. 676 of 1892 and St. Ry. Rep. 783, 102 N. Y. Supp. 746, chap. 688 of 1897, § 1 ; and § 104, as holding that a regulation of a com- amended by chap. 676 of 1892. The pany by which it establishes long and provisions are as follows: short service cars and refuses to give " § 101. Bate of fare. — No cor- a transfer to one riding on a short poration constructing and operating service car to a point beyond the des- a railroad under the provisions of tination of that car has been held to this article, or of chapter two hun- be no defense to an action for penalty. dred and fifty-two of the laws of 323 8 140 REGULATIONS AS TO OPEBATION. fers on a passenger who has taken passage on a leased road the right to a continuous trip, for a single fare, not only along the line of the leased road, but also along other lines which were under control of, or operated by, the lessee at the time the lease was. executed; but such right does not extend to roads subsequently built or acquired by the lessee. 30 Neither of the sections cited have reference to a steam railroad constructed prior to the passage of the Act of 1884, although such steam railroad is converted into a trolley road and its tracks joined to those of a street sur- face road and all are within the limits of the same municipality and operated as one continuous road. A full, separate fare may be charged on each branch of the road for a continuous trip over both branches. 31 The word " fare " as used in the section of eighteen hundred and eighty-four, shall charge any passenger more than five cents for one continuous ride from any point on its road, or on any road, line or branch operated by it, or under its control, to any other point thereof, or any connecting branch thereof, within the limits of any incorporated city or village. Not more than one fare shall be charged within the limits of any such city or village, for passage over the main line of road and any branch or exten- sion thereof if the right to construct such branch or extension shall have been acquired under the provisions of such chapter or of this article; ex- cept that in any city of the third class, or incorporated village, it shall be lawful for such corporation to charge and collect as a maximum rate of fare for each passenger, ten cents, where such passenger is carried in a car which overcomes an elevation of at least four hundred and fifty feet within a distance of one and a half miles. This section shall not apply to any part of any road constructed prior to May six, eighteen hundred and eighty-four, and then in oper- ation, unless- the corporation owning the same shall have acquired the right to extend such road, or to construct branches thereof under such chapter, or shall acquire such right under the provisions of this article, in which event its rate of fare shall not exceed its authorized rate prior to such ex- tension. The legislature expressly re- serves the right to regulate and re- duce the rate of fare on any railroad constructed and operated wholly or in part under such chapter or under the provisions of this article." 30. Mendoza v. Metropolitan St. By. Co., 51 App. Div. (N. Y.) 430, 64 N. Y. Supp. (98 St. Rep.) 745; McNulty v. Brooklyn Heights E. Co., 31 Misc. Eep. (N. Y.) 674, 66 N. Y. Supp. (100 St. Eep.) 57. 31. Barnett v. Brooklyn Heights R. Co., 53 App. Div. (N. Y.) 432, 65 N. Y. Supp. (99 St. Eep.) 1068. And see Brooklyn Elev. E. Co. v. Brook- lyn, B. & W. E. E. Co., 23 App. Div. (N. Y.) 29, 48 N. Y. Supp. (82 St. Eep.) 665; Eoosa V.Brooklyn Heights E. Co., 28 Misc. Eep. (N. Y.) 387, 59 N. Y. Supp. (93 St. Eep.) 664; Mc- Nulty v. Brooklyn Heights E. Co., 36 Misc. Eep. (N. Y.) 402, 73 N. Y. Supp. 698. 324 REGULATIONS AS TO OPERATION. § 140 the New York Kailroad Law cited below, does not indicate that the carriage of passengers alone is within the contemplation of the act. 32 In construing the New York statute providing for one continuous trip for a single fare on any road, line, or branch operated by a street railway company, or under its control, the word " control " is held to mean a control of the operation of the road and not merely a control of the corporation or individuals who operate it, by reason of the ownership of a majority of the stock. And in giving this construction to the word it was decided that the fact that one street railway corporation owned the majority of the stock of a like corporation having a separate and distinct management did not constitute a control of such other corporation within the meaning of the statute. 33 The word " continuous " as used in a statute requiring a street railway company to carry a passenger on a " continuous trip " between any two points on its road, or any connecting lines or roads operated or controlled by it, for one fare, and to give a transfer to the passenger entitling him to make the trip, is construed as meaning across town as well as through town and by the most direct, quickest, and convenient route. 34 The statute obligates such a corporation to carry a pas- senger not only over its own road, but over the connecting roads operated by it within such limits for that fare and upon the inter- section of a leased road to furnish a transfer to a passenger entitling him to continue his trip over such road. 35 The pro- vision of the New York law as to charging a single fare by a street surface railroad over its own line or any line leased by it, does not apply where the line leased is an elevated or steam sur- face road having a charter right to charge a greater fare. In such a case it is declared that the street railroad company having 32. De Grauw v. Long Island Elec- Charbonneau v. Nassau Electric E. trie Ry. Co., 43 App. Div. (N. Y.) Co., 123 App. Div. (N. Y.) 531, 108 502, 60 N. Y. Supp. (94 St. Rep.) N. Y. Supp. 105. 163. 35. People v. Brooklyn Heights 33. Senior v. New York City Ry. R. Co., 187 N. Y. 48, 70 N. E. 838, 5 Co., Ill App. Div. (N. Y.) 39, 97 N. St. Ry. Rep. 718; Griffin v. Inter- Y. Supp. 645, 4 St. Ry. Rep. 867. urban St. Ry. Co., 179 N. Y. 438, 72 34. Wells v. New York City Ry. N. E. 518; O'Reilly v. Brooklyn Co., 122 App. Div. (N. Y.) 488, 6 St. Heights R. Co., 179 N. Y. 450, 72 N. Ry. Rep. 246, 107 N. Y. Supp. 430; E. 517. 325 § 141 REGULATIONS AS TO OPERATION. had cast upon it the duty and obligation to operate such a road in accordance with the requirements of its charter and the statute applicable thereto, becomes entitled to all the privileges and bene- fits authorized by its charter or the statutes. 36 § 141. Regulation as to fare and transfers — New York statute continued. — The New York law as to a penalty for refusal to give a transfer applies to lines leased by one or different corpora- tions to another operated by the lessee, and in a proper case if a transfer is demanded and refused the lessee is liable for the penalty presribed. 37 The penalties provided for by the ISTew York statute for such a refusal are held not to be cumulative, it being declared that but one penalty can be recovered in a single action, and that the institution of an action for a penalty is to be regarded as a waiver of all previous penalties incurred. 38 The obligation 36. People v. Brooklyn Heights B. Co., 187 N. Y. 48, 5 St. By. Bep. 718, 79 N. E. 838. 37. Griffin v. Interurban St. By. Co., 179 N. Y. 438, 3 St. By. Rep. 668, 72 N. E. 513 ; O'Eeilly v. Brook- lyn Heights E. Co., 179 N. Y. 450, 3 St. By. Bep. 676, 72 N. E. 517. The provision as to transfers on lines operated under a lease held not to apply in the case of railroads operated under a lease made prior to 1891. Topham v. Interurban St. By. Co., 96 App. Div. (N. Y.) 323, 3 St. By. Bep. 717, 89 N. Y. Supp. 299. A private individual has no right to compel a street railway company, by mandamus, to issue the transfers provided for by the New York law. People ex rel. Lehmaier v. Interur- ban St. Ry.' Co., 177 N. Y. 296, 2 St. By. Bep. 751, 69 N. E. 596, affg. 85 App. Div. 407, 83 N. Y. Supp. 622, and citing People ex rel. Linton v. Brooklyn Heights B. Co., 172 N. Y. 90, 64 N. E. 788; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390, 61 N. E. 637. 38. Griffin v. Interurban St. By. Co., 179 N. Y. 438, 3 St. By. Bep. 668, 72 N. E. 513, wherein the court said: "There have been presented at the bar of this court civil and and crim- inal cases where the aggregate penal- ties sought to be recovered have amounted to enormous and well nigh appalling sums, by reason of plain- tiffs permitting a long period to elapse before beginning actions. Ac- tions of this nature have become highly speculative, and present a phase of litigation that ought not to be encouraged. The court is of opin- ion that, if cumulative remedies are to be permitted, the legislature should state its intention in so many words; that a more definite form (f statement be substituted for the words hitherto deemed sufficient. We intend no reflection upon the plain- tiffs in the cases now under consider- ation, but are dealing with a great abuse that demands immediate cor- rection. A sound public policy re- quires that only one penalty be re- covered in a single action, and that the institution of an action for a penalty is to be regarded as a waiver 326 REGULATIONS AS TO OPERATION. § 141 to give a transfer has been held to be a statutory one which the company must perform at any time before the reaching of the transfer point, and consequently a regulation of the company that a transfer must be asked for at the time of paying the fare is held to be no defense to an action for the penalty for a refusal to give a transfer upon a request made subsequent to the payment of fare. 39 And the fact that a conductor may have no more transfer tickets will not relieve the company of its liability for the statu- tory penalty for failure to furnish a passenger with such a ticket. Under these circumstances it is declared that the conductor should, upon request, furnish the passenger with a slip stating that ha had paid his fare or make an explanation to the conductor of the car to which the passenger desires to be transferred. 40 Again, an action for a penalty imposed by statute for failure of a street car company to issue a transfer to a passenger may be maintained by one although the fare was not paid by such passenger, but by her escort. 41 This statute imposing a penalty for refusal to give a transfer is not to be construed as entitling a passenger to trans- fers enabling him to take a roundabout route to his destination. 42 The penalty is only recoverable by a passenger desiring to make one continuous trip between two points for a single fare, and where the passenger rides past the place of transfer and seeks to continue his journey by transferring at another point he is not entitled to the penalty for a refusal of a transfer. 43 Under such a statute a passenger is entitled to a transfer carrying him by the shortest and most direct route. 44 And a regulation of a street of all previous penalties incurred." R. Co., 91 App. Div. (N. Y.) 580, 2 Per BAETtETT, J. St. Ry. Rep. 807, 86 N. Y. Supp. 871. See also McLean v. Interurban St. 41. McLaughlin v. New York City Ry. Co., 102 App. Div. (N. Y.) 18, Ry. Co., 106 App. Div. (N. Y.) 1, 4 92 N. Y. Supp. 405. St. Ry. Rep. 866, 94 N. Y. Supp. 653. 39. Fitzmartin v. New York City 42. Kelly v. New York City Ry. Ry. Co., 51 Misc. Rep. (N. Y.) 36, 5 Co., 119 App. Div. (N. Y.) 223, 5 St. Ry. Rep. 780, 99 N. Y. Supp. 765 ; St. Ry. Rep. 742, 104 N. Y. Supp. 561 ; Levine v. Nassau Elec. R. Co., 50 Hunt v. Brooklyn Heights R. Co., 115 Misc. Rep. (N. Y.) 552, 5 St. Ry. Rep. App. Div. (N. Y.) 673, 5 St. Ry. Rep. 778, 99 N. Y. Supp. 422. But see 782, 101 N. Y. Supp. 209. Schwartzman v. Brooklyn Heights R. 43. Hunt v. Brooklyn Heights R. Co., 50 Misc. Rep. (N. Y.) 116/5 St. Co., 115 App. Div. (N. Y.) 673, 101 Ry. Rep. 775, 98 N. Y. Supp. 941. N. Y. Supp. 209. 40. Rosenberg v. Broklyn Heights 44. Kelly v. New York City Ry. 327 § 142 REGULATIONS AS TO OPEEATION. railway company for the issuance of transfers permitting the nse thereof only in the same general direction of a passenger's initial trip, has been held to be a reasonable one. 45 But in another case in the same State it has been decided that, the statute not limit- ing the right to transfer to travel in one general direction, a street railway company is liable for the penalty on its refusal to issue transfers so that a passenger can reach his destination on the opposite side of a park, although the route requires him to travel north, west, and south. 46 § 142. Regulation as to separation of races. — A statute which provides for the separation of races upon street ears, and which subjects both to the same restraints and affords them equal privi- leges and accommodations, does not abridge the privileges and immunities of the citizen and deprive him of equal protection of the laws to which he is entitled by the Constitution of the United States. Such legislation violates no principle of organic law, and is valid and enforceable as a proper exercise of the police power. 47 Co., 119 App. Div. (N. Y.) 223, 104 N. Y. Supp. 561; affd., 192 N. Y. 97, 84 N. E. 569. 45. Kelly v. New York City Ey. Co., 119 App. Div. (N. Y.) 223, 5 St. Ey. Eep. 742, 104 N. Y. Supp. 561. Proof of notice of such a reg- ulation held insufficient. — See Gasper v. New York City Ey. Co., 51 Misc. Eep. (N. Y.) 39, 5 St. Ey. Eep. 781, 99 K Y. Supp. 902. 46. Wells v. New York City Ey. Co., 122 App. Div. (N. Y.) 488, 6 St. Ey. Eep. 246, 107 N. Y. Supp. 430. 47. Morrison v. State, 116 Term. 534, 4 St. Ey. Eep. 992, 95 S. W. 494. The court said in this case : " The propriety and necessity for the sep- aration of the white and colored races in Tennessee and other states, where the two races are something like equally divided in numbers, for the material benefit of both of them, is now conceded by all persons conver- sant with the conditions existing in these states. Indeed it was conceded at the bar by counsel for plaintiff in error. It violates the rights of no one. It deprives no one of any privi- leges or immunities to which they are entitled by virtue of any law. It does not discriminate against either race. Both are subjected to the same restraints, and afforded equal privi- leges and accommodations, and it is firmly established that such legisla- tion violates no principle of organic law, and is valid and enforceable as a proper and reasonable exercise of the police power. This statute is merely an extension to street rail- ways of one that has long been in force in this State, regulating the transportation of passengers upon commercial railroads, which upon full consideration was sustained by this court. Smith v. State, 100 Term. 494, 46 S. W. 566, 41 L. E. A. 432. Sim- ilar statutes, authorizing and requir- ing the separation, with equal privi- 328 REGULATIONS AS TO OPERATION. 142 And it has been held that such an act is not invalid as being a delegation of police power because it authorizes conductors in charge of street cars to change the line of division between white and colored passengers and to assign seats in accordance with such change. 48 And an ordinance requiring the separation of races on the street cars and which makes an exception of nurses in charge of children and invalids is not by reason of such excep- tion invalid as being unjustly discriminative or unreasonable. The fact that children and invalids require the constant care and attention of their nurses renders it reasonable and proper that such a law should make an exception preventing the separation of children and invalids from their nurses. 49 And the general welfare clause in the charter of a city enabling it " to pass all ordinances necessary for the health, convenience, and safety of the citizens, and to carry out the full intent and meaning of this act, and to accomplish the object of this incorporation," will authorize it to pass an ordinance for the separation of races. 50 So under power conferred upon the common council to pass for the government of a city any odinance not in conflict with the Con- stitution of the United States or of the State or the statutes thereof, an ordinance is valid which authorizes the separation of races on the street cars in the city. 51 And even without express leges and accommodations, of the two jections made to them have been held races affected by this act, designated to be without merit, and the statutes therein as the white and colored assaulted constitutional and valid." races, upon public conveyances, in Per Shields, J., citing a large num- schools and places of amusement open ber of cases as supporting this con- to the public generally, in all or part elusion. in these relations, have been passed 48. Morrison v. State, 116 Tenn. in many of the States of the Union 534, 4 St. Ry. Rep. 992, 95 S. W. 494. in the regulation of their interna] af- 49. Crooms v. Schad, 51 Fla. 168, fairs, and by Congress of the United 4 St. Ry. Rep. 142, 40 So. 497. See States in legislating for the District also Morrison v. State, 116 Tenn. of Columbia. These statutes have 534, 4 St. Ry. Rep. 992, 95 S. W. 494, nearly all been assailed, in both the so holding in the case of a statute Stae and Federal courts, and sub- containing a similar exception, jected to almost every conceivable 50. Patterson v. Taylor, 51 Fla. constitutional test, including the ob- 275, 4 St. Ry. Rep. 136, 40 So. 493. jections made by the plaintiff in error 51. Crooms v. Schad, 51 Fla. 168, to the one now under consideration, 4 St. Ry. Rep. 142, 40 So. 497, hold- and without exception, so far as has ing also under the provision by stat- been called to our attention, the ob- ute that " the council shall have 329 § 143 REGULATIONS AS TO OPERATION. authorization or the general welfare clause the enactment and en- forcement of such an ordinance providing for the separation of races is within the incidental police powers of a city as tending to safeguard the peace and good order of society within the limits of the city. 52 The fact that such an ordinance designates two modes by which the separation may be effected and leaves it dis- cretionary with the company as to which of the two modes it will adopt, does not render it invalid as an unauthorized delega- tion of authority or discretion to such company. 53 § 143. Regulation as to care and manner of running cars gen- erally. — When a statute is obviously intended to provide for the safety and health of a community and of travelers and an ordi- nance under it is reasonable and in compliance with its purpose, both the statute and the ordinance are lawful and must be sus- tained. 54 Accordingly, a municipal regulation may prohibit smoking in street cars ; 55 the use of salt or sand upon tracks ; 5e it may compel the removal of ice and snow; it may provide that ears driven in the same direction should not approach each other within a distance of three hundred feet, except in c?se of accident and at stations ; 57 it may provide as a proper police regulation that passenger cars be licensed on payment of a stipulated fee. 58 And power to pass ordinances imposing of Carthage v. Frederick, 122 N. Y. fines not exceeding five hundred dol- 268, 25 N. E. 480; People ex rel. Oak lars for any designated misdemeanor, Hill Cemetery Ass'n v. Pratt, 129 N. or imprisonment for not exceeding Y. 68, 29 N. E. 7; Mayor, etc., of sixty days, or both " that the city City of New York v. Dry Dock, E. B. has authority in such an ordinance to & B. R. Co., 133 N. Y. 104, 30 N. E. prescribe any penalty for its violation 563; City of Rochester v. Simpson, that is within the limits imposed by 134 N. Y. 414, 31 N. E. 871; People Buch provision. v. Havnor, 149 TS. Y. 195, 204, 43 N. 52. Patterson v. Taylor, 51 Fla. E. 541. 275, 4 St. Ry. Rep. 136, 40 So. 493. 55. Louisiana v. Heydenhain, 42 53. Patterson v. Taylor, 51 Fla. La. Ann. 483, 7 So. 621. See also 275, 4 St. Ry. Rep. 136, 40 So. 493. Boston Beer Co. v. Massachusetts, 97 In this case the two modes prescribed U. S. 25, 24 L. ed. 989, 992 ; Fertilizer were ( 1 ) by providing separate cars Co. v. Hyde Park, 97 U. S. 659. for the two races; or (2) by division 56. D. D., E. B. & B. R. Co. T. of the car when the same car was Mayor, 47 Hun (N. Y.) 221. assigned to the two races. 57. Bishop v. Union R. Co., 13 R. 54. City of Rochester v. West, 164 I. 314. N. Y. 510, 514, 58 N. E. 673; Village 58. Frankford & Philadelphia Pass. 330 BEGTJLATIONS AS TO OPERATION. § 143 an ordinance providing that: " Conductors shall not allow ladies or children to leave or enter the cars while the same are in motion," has been held not ti be unreasonable and void in that it imposes upon the carrier the duty of controlling the acts of pas- sengers, when the passenger was at liberty to act as he pleased. 59 An ordinance requiring street railway companies to provide a sufficient number of cars to prevent overcrowding, and to keep the cars above a certain temperature, has for its object the purpose of promoting the public comfort, safety, and health and is within the police power of a city. 60 So municipal ordinances requiring suitable and seasonable warning to be given of the approach of street railway cars are reasonable and proper regulations. 61 The reason- ableness of the rule of a street railroad corporation that passengers shall not stand on the rear platform, like a regulation by a munici- pality as to the operation of street cars, is to be judicially deter- mined by the court. 62 A street railroad company cannot stop its cars for any length of time to bring the price or conditions of *abor necessary to run the same down to the conditions offered by it. If the necessary labor to perform its public obligations to run its cars and to carry passengers cannot be obtained at the price or on the conditions it offers, it must offer such prices and conditions as will obtain it without regard to the effect upon its dividends. 63 A horse railroad company chartered by the legisla- ture may, while legally operating its road, restrain a rival coach company, organized under the New Jersey General Corporation Act and licensed by the city where the tracks are laid, from regu- larly using its tracks, with coaches adapted thereto, in competition with it in its business of transporting passengers and goods for hire, and from obstructing it in the use of such tracks by imped- Ry. Co. v. Philadelphia, 58 Pa. St. 61. Denver City Tramway Co. v. 119. Martin, 44 Colo. 324, 6 St. Ry. Rep. 59. MeHugh v. St. Louis Transit 60S, 98 Pac. 836. Co., 190 Mo. 85, 4 St. Ry. Rep. 647, 62. Montgomery v. Buffalo R. Co., 88 S. W. 853; Fath v. Tower Grove 24 App. Div. (N. Y.) 454, 48 N. Y. & Lafayette Ry., 39 Mo. App. 447; Supp. (82 St. Rep.) 849. Fortune v. Missouri Pacific Ry. Co., 63. Re Loader v. The Brooklyn 10 Mo. App. 252. Heights R. Co., 14 Misc. Rep. (N. 60. City of Chicago v. Chicago Y.) 208, 35 N. Y. Supp. 996, 70 St. City Ry. Co., 222 111. 560, 5 St. Ry. Rep. (N. Y.) 571. Rep. 156, 78 N. E. 890. 331 § 144 BEGTJLATIONS AS TO OPEEATION. ing such use by stopping thereon to take on and let down passengers. 64 § 144. Regulation as to speed. — A street railroad company is hound by the terms of an ordinance granting its franchises, rights, and limiting the speed of its cars, and having accepted the benefits thereunder it cannot insist that any part thereof is unreasonable. 65 And municipal authorities have the right and duty, by legislation, to regulate the rate of speed for the operation of street cars upon the streets within the corporate limits; and the right and duty exists by virtue of the police power which the authorities have and should exercise for the protection of individuals and their prop- erty when legally using the streets. An ordinance limiting the speed of street cars must be reasonable and certain, and although passed before electric cars were in vogue, if it generally limit the speed at which street cars may be drawn in the streets of the city, to, say, six miles an hour, it will apply to electric cars when they are used upon the streets. 66 A street railroad company is not 64. Camden H. R. Co. v. Citizens' Coach Co., 31 N. J. Eq. 525. 65. Chouquette v. Southern El. Ry. Co., 152 Mo. 257, 53 S. W. 897. 66. Lewis v. Cincinnati St. Ry. Co., 10 Ohio S. & C. P. Dec. 53 ; Mar- tineau v. Rochester Ry. Co., 81 Hun (N. Y.) 263, 62 St. Rep. (N. Y.) 722, 30 NY. Supp. 778; State v. City of Cape May et al., 6 Am. Electl. Cas. 42, 36 L. R. A. 656, 59 N. J. L. (30 Vroom) 393, 9 Am. & Eng. R. Cas. (N. S.) 507, 36 Atl. 679; Rail- road Co. v. City of Cape May et al., 59 N. J. L. 404, 36 Atl. 678, 6 Am. Electl. Cas. 45. An ordinance of the city of New York, passed in 1890, re- quired a street surface railroad com- pany to run a passenger car each way every twenty minutes of every day between midnight and six o'clock in the morning. The ordinance was continued by sections 595 and 596 of the Revised Ordinances, approved March 30, 1897. Held, a consolidated street surface railroad company, in- corporated in 1892, is subject to the penalty imposed by said sections for a failure or neglect in this respect. A city ordinance, imposing a duty on railroad companies " now " run- ning cars in the streets, subsequently re-enacted in the same language, is continuous, and the duty in question is imposed upon a street railroad cor- poration incorporated between the time of the enactment of the original ordinance and its re-enactment. City of New York v. Union R. Co., 31 Misc. Rep. (N. Y.) 451, 64 St. Rep. (N. Y.) 483. In the case cited, it was also held that, under an ordi- nance requiring cars to be run over the entire tracks of the road at in- tervals of twenty minutes, the com- pany could not escape liability by proof that the failure or neglect to do so was upon only a portion of its line. But where an ordinance flies eight 332 REGULATIONS AS TO OPEKATION. 145 given the right to run its cars at any desired rate of speed, by a charter giving it the paramount right of way upon city streets, but must regulate the speed so that the cars may be quickly stopped should it be required to avoid an accident. 67 An ordinance pro- viding that " it shall not be lawful for any cart, wagon or other vehicle used for the purpose of carrying passengers to be driven " through the streets in excess of a specified rate of speed has been construed as not applying to cars operated by electricity. 68 § 145. Regulation as to stopping cars before crossing intersecting streets or tracks. — An ordinance may be enacted compelling pas- senger cars operated by trolley or other power to come to a full stop before crossing intersecting streets; and such an ordinance, miles an hour as the maximum speed for street cars, and also requires street railroad companies to operate their cars according to the provisions of their charter, a. company whose franchise provides that its cars may be run at a speed greater than eight miles an hour is entitled to so run them, since a franchise must be con- sidered a part of the charter. Rusch- enberg v. Southern Electric R. Co., 161 Mo. 70, 61 S. W. 626. The ordi- nance of the city of New York, re- quiring all railroads operating lines of cars in the streets to run cars during certain hours at intervals of not less than twenty minutes, is valid and binding upon the defendant by force of the terms of its charter. Mayor, etc., of City of New York v. New York & H. R. Co., 10 Misc. Rep. (N. Y.) 417, 31 N. Y. Supp. 147, 63 St. Rep. (N. Y.) 530; sub nom. City of New York v. N. Y. & H. R. Co., 31 N. Y. Supp. 147. The charter of a street railroad compelled it to run its cars " as often as the convenience of passengers may require and shall be subject to such reasonable rules and regulations in respect thereto as the common coun- cil of the city of New York may from time to time by ordinance prescribe; " it was held that, while the reason- ableness of the ordinance was a ques- tion of law, the defendant might show that the convenience of passen- gers did not require that cars should be run during certain hours specified by the ordinance, and that the fact that the evidence related to a time subsequent to the date when the or- dinance took effect was not a ground of objection. Mayor, etc., of City of New York v. Dry Dock, E. B. & B. R. Co., 133 N. Y. 104, 30 N. E. 563, 44 St. Rep. (N. Y.) 94; revg. 39 St. Rep. (N. Y.) 105, 15 N. Y. Supp. 297. Such an ordinance is valid as against a company, the charter of which pro- vides that the line is to be con- structed only with the consent of the municipal authorities, who are there- by authorized to regulate the time and manner of using the same. Mayor, etc., of City of New York v. New York & H. R. Co., 10 Misc. Rep. (N. Y.) 417, 31 N. Y. Supp. 147, 63 St. Rep. (N. Y.) 530. 67. Gosnell v. Toronto R. Co., 21 Ont. App. 553. 68. Robinson v. Metropolitan St. 333 § 146 BEGTJLATIONS AS TO OPEEATION. if enacted in the manner prescribed by the charter of the city, is legislative in its character and will not be set aside as unreason- able in its purpose or effect. 69 So a municipal ordinance provid- ing that it shall be unlawful for any conductor, in charge of any street car, to permit such car to cross the tracks of any steam rail- road in the city until he has crossed on foot to the opposite side and signalled the motorman to proceed, is valid. 70 Such an ordi- nance is one which is calculated to give better security to those using the street cars and is within the power of the city to enact in the exercise of its general power to enact ordinances for the security and protection of its citizens. 71 But a statute requiring that street cars shall be stopped before crossing a steam railroad tracks at grade and that an employee shall go ahead and ascertain if the way is clear, does not relieve the railroad company of the duty of so operating its gates as to indicate to the person operating the street car whether the track is clear. 72 Where a city ordinance provides that no street car shall stop on any railroad tracks, but shall come to a full stop before crossing such tracks, it is com- prehensive enough to include any railroad track, whether main line or spur. 73 § 146. Regulation — Stopping for passengers. — A municipal ordinance requiring street cars to be stopped at any regular stopping place or places when signalled so to do by persons desiring to board, or alight from, such cars is authorized by a statute pro- viding that the council shall have power " to regulate the use of cars, drays, wagons, hackney coaches, omnibuses, automobiles, Ry. Co., 103 App. Div. (N. Y.) 243, ton, 53 N. J. L. 132, 20 Atl. 1076, 11 4 St. Ry. Rep. 868, 92 N". Y. Supp. L. R. A. 410. 1010. 70. Indianapolis Traction & Term. 69. Railroad Co. v. City of Cape Co. v. Romans, 40 Ind. App. 184, 5 May, 59 N. J. L. 404, 36 Atl. 678, St. Ry. Rep. 219, 79 N. E. 1068. 6 Am. Electl. Cas. 45. An ordinance 71. Indianapolis Traction & Term, showing the rate of speed car3 are Co. v. Founes, 40 Ind. App. 202, 5 St. allowed to run is competent evidence Ry. Rep. 278, 80 N. E. 872. in an action for negligence. Hall v. 72. Kapp v. Baltimore & Ohio Ogden City Ry. Co., 13 Utah 243, 44 Southwestern Ry. Co., 25 Ohio Cir. Pac. 1046, 6 Am. Electl. Cas. 598. Ct. 546. And see Donnaher v. State, 8 Smed. 73. Galveston, H. & S. A. Ry. Co. & M. (Miss.) 649; Trenton Horse R. v. Volbrath, 40 Tex. Civ. App. 46, 4 Co. v. Inhabitants of City of Tren- St. Ry. Rep. 1022, 89 S. W. 279. 334 REGULATIONS AS TO OPERATION. 147 and every description of carriages kept for hire or livery-stable purposes ; and to license and regulate the use of otreets by persons who use vehicles, or solicit or transact business thereon ; * * regulate the transportation of articles through such highways, and to prevent injury to such highways by overloaded vehicles, and to regulate the speed of interurban, traction, and street railway cars within the corporation. 74 But in a later case in the same State it has been decided that neither under such a statute or a delegation of the care, supervision, and control of public highways and streets can a municipality. require the cars of interurban rail- ways to be stopped at street intersections when signalled, and provide for the enforcement of such a requirement by penal ordinances. 75 § 147. Stopping cars — Ordinance as to proceeding to punish for violation of not enjoined. — It is a general rule that a court of equity will neither aid nor interfere with the administration of the criminal laws in the courts of the State invested with criminal jurisdiction. It will not enjoin the prosecution of criminal pro- ceedings, and this rule extends to proceedings to punish for viola- tions of municipal ordinances which are quasi-criminal in their nature. So where a municipal corporation passed an ordinance requiring street cars on a public street extending through the town to be stopped at three designated points for the reception of pas- sengers, in addition to those where the company itself was accus- tomed to stop its cars for that purpose (except one), and fixing a penalty for disobedience thereof, injunction wiJl not be granted to restrain the enforcement of the ordinance by prosecution, or to determine the question of its validity or its reasonableness or unreasonableness. 7 6 74. Lockyer v. Covert, 2 St. Ry. Lumpkin, J.: "The general rule is Rep. 816, 25 Ohio Cir. Ct. 486. that equity has no jurisdiction in 75. Townsend v. City of Circle- criminal matters. Its jurisdiction is ville, 78 Ohio St. 122, 6 St. Ry. Rep. for the protection of property and 777, 84 N. E. 792. property rights and franchises. Cer- 76. Georgia Ry. & Blec. Co. v. tain courts of law are invested with Town of Oakland City, 129 Ga. 576, power to try persons accused of the 6 St. Ry. Rep. 220, 59 S. E. 296. The violation of the criminal laws. The above rule is clearly stated in the two are separate; and the general following extract from the opinion per rule is that a court of equity will 335 § 148 REGULATIONS AS TO OPERATION. § 148. Regulation — Keeping vigilant watch. — An ordinance providing that a person in charge of a car shall keep a vigilant watch for all vehicles and persons on foot, especially children, on the tracks or moving towards it^ and that on the first appearance of danger the car shall be stopped in the shortest time and space possible, is valid, being simply declaratory of the common law. 77 Under power vested in a city to protect the lives, limbs, and prop- neither aid nor interfere with the ad- ministration of the criminal laws in the courts established by the State and invested with criminal jurisdic- tion. The rule has often been applied both to criminal proceedings under the State laws and quasi-criminal proceedings under municipal laws. An additional reason for it might be suggested in respect to the State, on the ground that it might be an at- tempt to restrain the sovereign power in the name of which criminal pro- ceedings are conducted. The State is not suable at all without its con- sent, save by another State in the Supreme Court of the United States, while municipalities have not the same immunity from litigation. While this question as to the parties to the suit may furnish some dif- ference, yet the principle of the gen- eral want of jurisdiction in equity to interfere with the administration of criminal laws has long been treated as applicable to the laws of the State and also to the 5«asi-criminal ordi- nances of a municipal corporation. In re Sawyer, 124 TJ. S. 200, 8 S. Ct. 482, 31 L. ed. 402. Many efforts have been made to establish various ex- ceptions to the general rule; but, if exceptions have been allowed, it was only where they were held to clearly involve subjects of equitable cogni- zance, and where equitable interfer- ence was necessary. Every arrest and prosecution is likely to work injury to the character and business of the defendant; and many crimes relate to acts affecting property. Still a court of equity cannot undertake., merely on account of some possible incidental injury, to practically stop a court of competent jurisdiction from trying one accused of an offense. If it did so, a very large part of criminal prosecutions and the due en- forcement of criminal laws would be stopped by defendants invoking the aid of equity, on the ground that their persons, character, business, or property would be injured by per- mitting the prosecution to proceed, and that the law on which it is grounded is invalid, or does not ap- ply to the defendant; in other words, that he is not guilty. See Davis v. American Society. 75 N. Y. 362." 77. Deschner v. St. Louis & M. E. Co., 200 Mo. 310, 5 St. Ry. Rep. 549, 98 S. W. 737, wherein the court said: " While the whole of this ordinance has been sustained upon the theory that it is enacted under the police power of a city, yet in substance and logical effect both duties — the duty of a vigilant watch, especially for children, and the duty to stop as soon as possible on the appearance of dan- ger — may be well sustained as sim- ply declarative of the common law. To hold that a motorman, driving a killing machine on iron rails in the people's highway, should keep a vigi- lant watch for eviery one moving towards the track, especially chil- dren, is as much as (and no more 336 REGULATIONS AS TO OPERATION. § 149 erty of those using its streets, and to regulate the use of its streets, it has been determined that an ordinance providing that the motor- man of a street car shall keep a vigilant watch for vehicles on the tracks or approaching them and on the first appearance of danger to such a vehicle shall stop the car in the shortest time and space possible, is an exercise of the police power vested in the city for the protection of the lives and property of its citizens on its streets, and that it exacts no more than ordinary care when the circumstances and conditions to which it is applicable are considered. 78 § 149. Regulation as to brakes. — In the exercise of the power vested in the State or a city to make and enforce regulations look- ing to the safety of the public, it is within the power of a city authorized to prescribe such regulations and rules from time to time as may be deemed necessary to protect the public welfare, interests, and accommodation, to provide by ordinance that all street cars shall be equipped with air or electric brakes. Such a regulation is a reasonable one, and does not violate a statutory pro- than) to say that humanity and com- with the ordinances, as the city can- mon sense dictate such course; and not be held in damages for any fail- to hold such to be a, duty, even in ure of the company to keep such an the absence of an ordinance, would ordinance. Murphy v. Lindell R. Co. not strain, let alone break, the com- 153 Mo. 252, 54 S. W. 442. And see mon-law principle applicable to Fath v. Tower Grove & L. Ry. Co. crowded cities and the use of a high- 105 Mo. 537, 13 L. R. A. 74, 16 S. way, common not only to street rail- W. 913; Liddy v. St. Louis R. Co., 40 ways under their easement, but, pri- Mo. 506. Such an ordinance is ap- marily, to all travelers." Per plicable to cable railways. Lamb v. Laman, J. St. Louis Cable & West. Ry. Co., 33 An ordinance granting a fran- Mo. App. 489. chise may provide that motormen The duty to keep a vigilant and conductors shall keep a vigilant watch ahead of the car rests upon watch for persons on or moving the motorman. It is not also im- toward its tracks, and on the first posed upon the conductor whose du- appearance of danger to such person ties almost entirely keep him inside that the car shall be stopped in the the car. Heinzle v. Metropolitan St. shortest time and space possible. But Ry. Co., 182 Mo. 559, 81 S. W. 857; the acceptance of such a franchise i? Wallack v. St. Louis Transit Co., 123 not shown by an agreement of the Mo. App. 160, 100 S. W. 496. company to hold the city harmless 78. Sluder v. St. Louis Transit from all damages that may accrue to Co., 189 Mo. 107, 4 St. Ry. Rep. 581, it by reason of its failure to comply 88 S. W. 648. 22 337 § 150 REGULATIONS AS TO OPERATION. vision that when a franchise is granted to a street railway com- pany the municipal authorities shall make no regulations destroy- ing it. 79 § 150. Regulation as to fenders. — In the exercise of power con- ferred upon a city to make ordinances to regulate the public streets and the manner in which persons and corporations shall exercise privileges therein, and to protect persons and property, it may provide by ordinance that all passenger cars operated by trolley or electric power in the streets of the city shall have proper and suitable fenders on the front of such cars to prevent accident, and that it shall be unlawful to operate cars in the streets without such fenders. 80 And a bona fide reasonable observance of such an ordinance is required by reason of its being a legal exercise of the power of municipal control and not an invasion of the franchise of the company, or an interference with the operation of its rail- way or business. 81 But where by a general law exclusive juris- diction is conferred upon a State railroad commission in respect to the requiring of fenders on street cars and all inconsistent acts, resolutions, and by-laws are thereby repealed, it is not within the power of the common council of a city to make it a condition for the approval of a plan for a street railway that the cars operated by the company shall at all times be equipped with such fenders as shall be satisfactory to the municipal authorities. 82 And a city ordinance providing that it shall be unlawful for a street railway company to run any street cars within the city limits without having attached to its front end an automatic fender, made 79. People v. Detroit United Ry. tached immovably so that it will at Co., 134 Mich. 682, 2 St. Ey. Rep. all times remain at the required 460, 97 N. W. 36. height above the track and all parts 80. Cape May, Delaware Bay & S thereof. City of Brooklyn v. Nassau P. R. Co. v. City of Cape May, 59 N. El. Ry. Co., 38 App. Div. (N. Y.) J. L. 396, 6 Am. Electl. Cas. 49, 36 365, 56 N. Y. Supp. (90 St. Rep.) Atl. 696, 36 L. R. A. 653, 2 Chic. L. 609. J. Wkly. 224, 6 Am. & Eng. R. Cas. 81. Cape May, Delaware Bay & S. (N. S.) 511. P. R. Co. v. City of Cape May, 59 N. But an ordinance requiring elec- J. L. 396, 6 Am. Electl. Cas. 49, 36 trie cars to be equipped with fender* Atl. 696. extending to within "not more than 82. Appeal of Central Ry. A Elec. three inches from the tracks " is un- Co., 67 Conn. 199, 35 Atl. 32. reasonable, since no fender can be at- 338 REGULATIONS AS TO OPERATION. 151 by a certain designated company, or some other fender equally as good, to be approved by the common council or its street com- mittee, is invalid, in that it fails to furnish a uniform rule of action, and vests in the common council, and street committee an arbitrary discretion to discriminate in favor of some manufac- turers against others. 83 An ordinance requiring street cars to be equipped with fenders is not to be construed as requiring fenders on trailers. Such an ordinance is to receive a reasonable construc- tion, and, as in the nature of things, a trailer could not be the car to strike a person or obstruction on the track, there could be no object in requiring that it be provided with a fender to protect against dangers which could not arise. 84 § 151. Regulation as to care of streets — Removing dirt, snow, and ice, etc. — The duty ia imposed upon each municipality to remove obstructions from the streets and to keep the streets in a 83. City of Elkhart v. Murray, 165 Ind. 304, 4 St. Ry. Rep. 227, 75 N. E. 593. The court said: "Such power if possessed by the city must be exercised by ordinance. The ordi- nance must contain permanent legal provisions operating generally and impartially upon all within the ter- ritorial jurisdiction of such city, and no part thereof be left to the will or unregulated discretion of the common council or any officer. If an ordi- nance upon its face restricts the right of dominion which the owner might otherwise exercise without question, not according to any uniform rule, but so as to make the absolute en- joyment of his own depend upon the arbitrary will of the city authorities, it is invalid, because it fails to fur- nish a uniform rule of action and leaves the right of property subject to the will of such authorities, who may exercise it so as to give exclu- sive profits or privileges to particu- lar persons. * * * It will be ob- served that said ordinance requires the use of the particular fender de- scribed therein, or some other fender equally as good, to be approved by the common council or street com- mittee. The ordinance, if valid, vests in the common council and street committee an arbitrary discretion, which they may exercise or not at their pleasure. They have the power to approve a fender for use by one street railroad company and refuse approval of the same fender for use by another company, under the same circumstances and conditions. They also have the power to approve one or more fenders, and refuse approval of other fenders equally as good or better, whether made by the street railroad company or some one else, thus arbitrarily discriminating in favor of some manufacturers and against others. It is the fact that said officers have the power to do this, and not that they will do so, that renders said ordinance invalid." Per Monks, C. J. 84. Von Diest v. San Antonio Tr. Co., 33 Tex. Civ. App. 577, 2 St. Ry. Rep. 902, 77 S. W. 632. 339 § 151 BEGTJLATIONS AS TO OPERATION. condition for travel; and in the performance of this duty it has the right to regulate the use made by street railroad companies of snow plows which pile up the snow upon both sides of the tracks and prevent the use, either by the abutting owners or by the gen- eral public, of any other part of the street for the purpose of passage or access to their own premises. A street surface railroad company has no right to control or use or in any manner interfere with any part of the public streets, except that actually included within its roadway ; and if there be a necessity of removing snow from the tracks, the obligation is imposed upon the company, not only to remove it from its tracks, but not to put it upon other parts of the streets where it becomes an obstruction to the use of the street by other passersby. 85 In the case of an extraordinary storm the company must make extraordinary efforts. 86 In re- moving snow and ice from its tracks it must be careful not to interfere with the natural flow of water from the street, either by obstructing the gutter or otherwise ; but in the absence of munici- pal regulation requiring it, it is not obliged to haul the snow away, and is only liable in case it has failed to exercise ordinary care. 87 It is within the power of a city to require street railway 85. Broadway Ry. Co. v. Mayor, the overturning of a sleigh, in the ab- 49 Hun (N. Y.) 126, 131; Ovington senee of evidence that such heaping v. Lowell & S. St. R. Co., 163 Mass. up was unnecessary; or that the work 440, 40 N. E. 767; Markowitz v. Dry could have been done in some other Dock, E. B. & B. R. Co., (C. P.) 12 manner, or that the heaps were not Misc. Rep. (N. Y.) 412, 67 St. Rep. removed within a reasonable time. (N. Y.) 572, 33 N. Y. Supp. 702. Ovington v. Lowell & S. St. R. Co., While a railroad company has the 163 Mass. 440, 40 N. E. 767; Union right to remove the snow from its Ry. Co. v. Mayor, 11 Allen (Mass.) tracks, it cannot lawfully cause an ob- 287 ; Newport News & O. P. Ry. & struction which would interfere with Electric Co. v. Bradford, 89 Va. 117, the safe passing and repassing of 37 S. E. 807. persons traveling upon the street. A street railroad company which Dixon v. Brooklyn City & Newtown allows » snowbank erected by it to R. Co., 100 N. Y. 170, 176, 3 N. E. remain an unreasonable length of 65. time is liable as for the maintenance 86. Bowen v. Detroit City R. Co., of a public nuisance, although the 54 Mich. 496, 26 N. W. 559, 52 Am. duty to remove the snow also de- Rep. 822. A street railroad company volved upon others. Markowitz v. is not chargeable with negligence in Dry Dock, E. B. & B. R. Co., 12 Misc. heaping up snow along the sides of Rep. (N. Y.) 412, 67 St. Rep* (N. Y.) its track after » heavy snowstorm, 572, 33 N. Y. Supp. 702. rendering it liable to one injured by 87. Short v. Baltimore City Pass. 340 BEGULATIONS AS TO OPERATION. 151. companies, in case it becomes necessary to remove snow from their tracks, to distribute the same evenly over the surface of the street so as not to interfere with the free use and occupation of the street by the public. Such an ordinance imposes no greater or higher duty than existed at common law. 88 Where a street car company has obstructed that portion of the streets outside of its tracks by snow pushed from that part of the street upon which its tracks are laid, and has then obstructed one of its tracks with a repair wagon, so that there remains only the other track upon which a citizen may drive, a driver injured by collision with the car in attempting to pass such repair wagon with his team, can recover against the company. 89 And where snow is removed by a street railway company and deposited in heaps upon the highway at the side of the tracks, and is allowed to remain there for an unreason- able length of time, it may be enjoined as a nuisance. 90 Under a statute providing that " any person or corporation, except munici- pal corporations, through whose negligence or carelessness any obstruction or want of repair in a highway is caused, shall be liable to any person injured by reason thereof," such a company is liable for damages caused by a dangerous bank of snow left on the side of its tracks after cleaning them, where it had a reasonable time within which to remove it. 9J Under exceptional circumstances, courts of equity have interfered and prevented, by injunction, at the instance of the abutting owner, such accumulations of snow and ice between the railroad tracks and abutting property, access to which was by that means materially impaired, after a reason- ble time to remove the same had elapsed. 92 Ry. Co., 50 Md. 73; Wallace v. De- 89. West Chicago St. R. Co. v. troit City R. Co., 58 Mich. 231, 24 O'Conner, 85 111. App. 278. N. W. 472. 90. Schrank v. Rochester Ry. Co., 88. McDonald v. Toledo Consol. 83 Hun (N. Y.) 20, 31 N. Y. Supp. St. Ry. Co., 74 Fed. 104, 20 C. C. A. 922. 332. In this case the ordinance 91. Smith v. Nashua St. Ry., 69 granting the company the right to N. H. 504, 44 Atl. 133; McDonald v. occupy the streets required it to per- Toledo Consolidated St. R. Co., (C. form and abide by the general ordi- C. A. 6th C.) 43 U. S. App. 79, 74 nances of the city. Independent of Fed. 104, 36 Ohio L. J. 49, 29 Chic, such a, provision, however, the power Leg. N. 35, 1 Ohio Dec. Fed. 294. would seem to exist in a city to so 92. Prime v. Twenty-second St. R. provide. Co., (N. Y.) 1 Abb. N. C. 63; Chris- 341 §§ 152, 153 REGULATIONS AS TO OPERATION. § 152. Regulation — Watering of tracks. — It is within the police power of a city to provide by ordinance that corporations operating street railway lines within the limits of the city shall water their tracks so as to effectually lay the dust between the rails. Such an ordinance tends to promote the comfort and con- venience of passengers and the health and comfort of the inhabit- ants of the city. 93 Where a municipality, by its charter, is given power " to make, ordain and establish such by-laws, ordinances, rules and regulations as shall appear to them requisite and neces- sary for the security, welfare and convenience of said city and its inhabitants, and for preserving health, business and government within the limits of the same " — authority is conferred to require street railroad companies to prevent dust on their tracks by water- ing them. 94 § 153. Regulation — Use of salt — Ashes. — An ordinance prohibiting the use of salt on a street railroad track, except Cn curves at street corners, is not invalid as an impairment of the franchise of the company, or a restriction of the operation of its road, merely because it will occasion inconvenience or involve ex- pense or prevent the company from operating its road so success- fully, and evidence that the use of salt is necessary to make it possible to run street cars at a low place in which the water gathers during the day and freezes at night is not sufficient to show that the ordinance prohibiting its use is unreasonable, since it does not appear that at reasonable expense the water cannot be diverted from the tracks. 95 Where a city is authorized by its topher & Tenth St. R. Co. v. Mayor, pose of filling the tank with water to (N. Y.) 1 Abb. N. C. 79. But see be used in sprinkling the company's Johnston v. Christopher & Tenth St. tracks, it should give such warn- B. Co., (N. Y.) 1 Abb. N. C. 75. ing of the obstruction as would be 93. State v. Canal & Claiborne R. reasonably required to protect any Co., 50 La. Ann. 1189, 24 So. 265. traveler from injury occasioned there- 94. City & Sub. R. Co. v. Savan- by. Whether such warning was in fact nah, 77 Ga. 731, 4 Am. St. Rep. 106; given is a question for the jury. Chester v. Chester T. Co., (C. P.) 5 North Jersey St. Ry. Co, v. Morhart, Pa. Dist. 601, 6 Del. Co. Eep. 397. 64 N. J. L. 236, 45 Atl. 812. See Where a street railway company lays Smith v. Nashua, 69 N. H. 504, 44 a hose across a public highway from Atl. 133. a hydrant at one side to a tank cart 95. State, Consolidated T. Co. v. on the company's track, for the pur- Elizabeth, 58 N. J. L. (29 Vroom) 342 EEGTJLATIONS AS TO OPERATION. § 153 charter to regulate the use of the streets and to prevent the throw- ing of ashes thereon, it may by ordinance permit the sprinkling of sand upon street railway tracks during certain months of the year and prohibit its use at all other times. 96 619, 32 L. R. A. 170, 3 Am. A Eng. v. City of New York, 47 Hun (N. Y.) R. Cas. (N. S.) 614, 34 Atl. 146. 221. 96. Dry Dock, E. B. & B. R. Co. 343 § 154 BEGULATIONS AS TO PAVING EEPAIES. CHAPTER Vni. Regulations as to Paving; Repairs. Section 154. Paving and repairing — Generally. 155. Paving and repairing — Duty as to continued. 156. Paving and* repairing — Particular acts and ordinances — Con- strued. 157. Duty as to adjusting roadbed — Laying new pavements. 158. Paving and repairing — Obligation assumed by city. 159. Paving and repairing — Power of legislature to alter provision in franchise as to. 160. Paving — Contract between company and abutting owner. 161. Repairs. 162. Repair of bridges. 163. Liability of company for neglect to repair — How enforced. § 154. Paving and repaying — Generally. — It may be safely stated that in every municipality, either by statute or by ordinance of the municipal authorities, a street surface railroad company operating within its limits is required to pave and to maintain the pavement between the rails of its track and for a certain distance outside of each outer rail. 1 The statute of New York requires 1. See in this connection Cambria it shall keep its tracks and a space Iron Co. v. Union Trust Co. of St. between, and two feet outside the Louis, 154 Ind. 291, 56 N. E. 665; outer rail at all times well paved and Lincoln St. Ry. Co. v. City of Lin- in good order. District of Columbia coin, 61 Neb. 109, 84 N. W. 802; Bor- v. M. R. Co., 8 App. (D. C.) 332, 21 ough of Rutherford v. Hudson River Wash. L. R. 566. Traction Co., 73 N. J. L. 227, 63 Atl. If the authority of the mu- 84. See also cases cited in this and nicipality is not limited by or following sections. under the original franchise it may The laying of sleepers and impose as a condition for granting crossties by a street railroad com- the right to extend that the railroad pany in streets in which it proposes company pay the expense of paving to construct its road in the future, in streets previously occupied. F. & before such streets are paved by the S. Philadelphia City Pass. Ry. Co. v. corporate authorities, is not such an Philadelphia, 17 W. N. C. 345; De- appropriation by the company of the troit v. Detroit City Ry. Co., 37 streets to its own use as will make it Mich. 558; Dallas v. Dallas Consoli- liable for the expense of paving un- dated T. R. Co., (Tex. Civ. App.) 33 der a provision in its charter that S. W. 757. 344 REGULATIONS AS TO PAVING- REPAIRS. 154 the railroad corporation to have and keep in permanent repair that portion of the street, avenue, or public place between the rails of its tracks and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so and in such manner as they may prescribe. Under this statute the Court of Appeals has held that it becomes the duty of the street surface railroad corporation to keep in per- manent repair such portion of the street through which it passes as is within its tracks and two feet in width outside of each rail; Where a condition of the franchise requires a street sur- face railroad company to pave a cer- tain part of one of the streets which it is given right to occupy with its tracks, the railroad company may, with the consent of the city, substi- tute a different portion of the street for that originally designated as against objections on the part of own- ers of a property abutting on the part of the street originally secured for paving. Barber Asphalt Pav. Co. v. New Orleans & C. R. Co., 49 La. Ann. 1608, 22 So. 955. 'Where permission has been granted to a street railroad com- pany to lay its tracks on a paved street, and it is expressly stipulated that no charge for paving should be made against the company the mu- nicipal council cannot thereafter, un- der an act subsequently passed pro- viding that when a street railroad company lays its track on a street already paved the city may require contribution from it for such amount on account of the paving as the mayor and council think proper, en- force, by execution or otherwise, a claim against the company for any portion of the original cost of paving in that street. Atlanta Consolidated St. Ky. Co. v. Atlanta, 111 Ga. 255, 36 S. E. 667. Under that act so sub- sequently passed, it is incumbent on the mayor and general council before granting a street railroad company permission to lay its tracks on a paved street to fix the amount of com- pensation which will be required of it. Id. The words " property owners abutting " in an ordinance requiring a street railroad company laying its tracks in a street already paved to pay the property owners abutting for the paving between the rails do not apply to the city as owner of the streets, so as to require payment for street intersections. City of Council Bluffs v. Omaha & C. B. St. & Bridge Co., 114 Iowa 141, 86 N. W. 222. A street railroad company may be required to pay its pro- portionate share of the cost to a city of putting in a new pavement where its charter requires it to keep the space between its track and for two feet outside " well paved and in good order," although the original pavement had been put in but a short time before and proved worthless. District of Columbia v. M. R. Co., 8 App. (D. C.) 322, 24 Wash. L. Rep. 566. For a definition of " head " of a. street, within the meaning of the Paving Act, see Kennedy v. Detroit R. Co., 108 Mich. 390, 2 Detroit Leg. N. 894, 66 N. W. 495. Statute as to paving an exer- cise of taxing power. — The pro- vision of the general Railroad Law 345 § 155 EEGUXATIONS AS TO PAVING EEPAIES. and that the local authorities of the municipality were vested "with the authority to determine when the repairs should be made, and how they should be made, and that the entire street should be repaved and with other material. In case of the neglect of the corporation to repave within thirty days after notice given it to do so, then the local authorities may do the work at the expense of the corporation. But they have no power to charge any portion of the expense of repairing that portion of the street which the statute says the street surface railroad shall keep in repair upon either the abutting owner or the city at large. 2 § 155. Paving and repaving — Duty as to continued. — The duty to pave or to repave does not rest upon the railroad corporation where it has a mere license to use the streets for its corporate pur- (L. 1890, ch. 565, § 98) requiring street surface railroads to pay the cost of paving between their tracks is an exercise of the taxing power of the legislature. City of Rochester v. Rochester Railway Co., 182 N. Y. 99, 74 N. E. 953, revg. 98 App. Div. 521, 91 N. Y. Supp. 87, citing Sioux City St. Ry. Co. v. Sioux City, 138 U. S. 98, 11 S. Ct. 226, 34 L. ed. 898; Worcester v. Worcester St. Ry. Co., 196 U. S. 539, 25 S. Ct. 327, 49 L. ed. 591. 2. Conway v. Rochester, 157 N. Y. 33, 51 N. B. 395; People v. Utica, 45 App. Div. (N. Y.) 356, 61 N. Y. Supp. (95 St. Rep.) 31. As to duties and liabilities under this act see also cases cited in this and the following sections. In New York a street surface rail- road which has neglected to repair the streets within and adjoining its tracks, as required by statute, within thirty days after notice to do so, is liable to the city for the expense of doing the work, although the contract for repaving was let by the city be- fore the expiration of thirty days after notice, if no part of the pave- ment within the railroad area was dis- turbed by the contractors within the thirty days. City of New York v. New York City Ry. Co., 132 App. Div. (N. Y.) 164, 116 N. Y. Supp. 765. Where the grantee of a street rail- way franchise makes no agreement to repay the cost of repavement, if made by the city itself, it has the right to do the work and cannot be required to repay the cost of repav- ing, unless it has been notified and is in default. City of New York v. Metropolitan St. Ry. Co., 130 App. Div. (N. Y.) 842, 115 N. Y. Supp. 878. Under the New York act a city common council cannot, by a, contract with the railroad company, exempt it from full statutory liability im- posed by the act as subsequently amended. Weed v. Common Council of Binghamton, 26 Misc. Rep. (N. Y.) 208, 56 N. Y. Supp. (90 St. Rep.) 105. But the act of May 23, 1901, amending section 93, authorizing cities of the third class to make such contract and confirming those pre- viously made, passed after the com- 346 REGULATIONS AS TO PAVING EEPAIES. § 155 poses; and if the charter or franchise specifically provides what the railroad corporation shall do toward paving and maintaining the pavement of the street, its burden cannot be added to by subsequent enactment unless the right to make such addition is reserved to the municipality. An obligation to keep the street in repair does not compel the company to grade or pave the street. If the language of the franchise or other contract is of doubtful construction the practical interpretation by the parties themselves is entitled to great, if not to controlling, influence. 3 If the munici- pality is merely authorized to require the street railroad corpora- tion to pave and repave between their tracks, then the matter is left to the discretion of the municipality, and in the absence of a direction by its authorities to the railroad company to pave, the entire assessment for paving the streets may be laid upon the abutting owners and the city at large. 4 The duty, however, to mencement of this suit by the tax- payers to compel a city to disregard the contract and enforce against the company a tax to the full extent pro- vided by law, destroys the right of action. Weed v. Common Council of Binghamton, 71 St. Rep. (N. Y.) 282. And such a contract may em- brace a subsequent extension of the tracks made by a company formed by the consolidation of the two compa- nies which had previously contracted with the city where the contract pro- vided that it was to apply to any ex- tension of the tracks and be binding pn any company with which the con- tracting companies might be consoli- dated. Id. A provision in an original grant to a street railroad company authorizing it to construct and operate a railroad in certain streets, relating to the pav- ing of a portion of the streets, does not apply to an extension of the tracks in other streets constructed under authority of a subsequent grant where there is nothing to show that the grant of the authority to build the extension was accepted with the knowledge and understanding on the part of those to whom the concession was made that the terms of the orig- inal grant respecting repairs to the street should be included as one of the conditions upon which the right to build the extension was granted. Mayor v. Eighth Ave. R. Co., 7 App. Div. (N. Y.) 84, 39 N. Y. Supp. 959; Mayor, etc., of New York v. New York & H. R. Co., 64 Hun 635, 19 N. Y. Supp. 67; affd., 139 N. Y. 643, 35 N. E. 206. 3. Chicago v. Sheldon, 76 U. S. (9 Wall.) 50, 19 L. ed. 594; Kansas City v. Corrigan Consol. St. Ry. Co., 86 Mo. 67. 4. Gilmore v. Utica, 121 N. Y. 561, 24 N. E. 1009, 31 St. Rep. (N. Y.) 880. The municipal authorities may repeal an ordinance authorized by statute providing that passenger rail- road companies extending their tracks through additional streets, with the consent of the city council, shall be subject to the ordinances relating to paving and repaving, and requiring the company to pay the entire cost of 347 § 155 REGULATION'S AS TO PAVING- REPAIRS. require the street railroad to bear its share of the burden is gen- erally made imperative, and the municipal authorities must deter- mine the necessity for the repaying, the time when and the mate- rial with which it shall be done. 5 The obligation to keep a street in repair and to repave between the tracks does not impose upon the company the duty of paving between the tracks where the rest of the street is unpaved. 6 And a street railroad company is not liable to pay for the paving or repaving of a street simply because paving and repaving. Thereafter such cost, so far as it relates to streets never before paved, may be made a charge on the abutting owners. Phil- adelphia, O'Eourke v. Bowman, 175 Pa. St. 91, 38 W. N. C. 143, 34 Atl. 353. Duty to pave from curb to curb. — Where the entire cost and expense of paving, repairing, and re- paving " on any street occupied by it " may be assessed against the rail- road company, its duty to repair or repave extends to the entire roadway from curb to curb. Philadelphia v. Ridge Ave. Pass. Co., 143 Pa. St. 444, 22 Atl. 695; Philadelphia v. Evans, 139 Pa. St. 483, 21 Alt. 200. The power conferred by statute upon certain cities to compel street railroad companies whenever any street is " ordered paved " to pave and maintain a, specified part thereof, relates only to streets paved before occupation by the street railroad com- pany. Oscaloosa St. R. & L. Co. v. Oscaloosa, 99 Iowa 496, 68 N. W. 808. A provision, in the charter of a railroad company to the effect that whenever its road is laid and used by running passenger cars thereon the company shall be subject to the ordi- nance of the city requiring the run- ning of passenger railway cars, does not make the company liable for the cost of street paving. Philadelphia v. Empire Pass. R. Co., 177 Pa. St. 382, 35 Atl. 721. And see Shamokin v. Shamokin St. R. Co., 178 Pa. St. 128, 35 Atl. 862, 39 W. N. C. 136. Macadamizing is not paving within the meaning of a requirement that the streets should be " graded and paved." United Railways & Elec- tric Co. of Baltimore v. Hayes, 92 Md. 490, 48 Atl. 364. 5. Detroit v. Fort Wayne & E. R. Co., 90 Mich. 646, 6 Am. R. & Corp. Rep. 188, 51 N. W. 688, 50 Am. & Eng. R. Cas. 447 ; Lansing v. Lansing City El. R. Co., 109 Mich. 123, 3 De- troit Leg. N. 41, 66 N". W. 949; Phil- adelphia v. Ridge Ave. Pass. Ry. Co., 143 Pa. St. 444, 22 Atl. 395 ; Columbus v. Columbus St. R. Co., 45 Ohio St. 98, 12 N. E. 651; City of Reading v. Union Tract. Co., (Pa. C. P.) 24 Pa. Co. Ct. 629; Village of Mechanicville v. Stillwater & M. St. Ry. Co., 35 Misc. Rep. (N. Y.) 513, 71 N. Y. Supp. 1102. An express provision in the charter requiring the company to pay the entire cost of paving and repav- ing any street where its track is laid, is not limited by a preceding clause that the company in constructing its road shall conform to the surveys and grades established or thereafter to be established to the time of the first construction. Philadelphia, Nestor v. Spring Garden, Farmers' Market Co., 161 Pa. St. 522, 29 Atl. 286. 6. City of Philadelphia v. Evans, 139 Pa. St. 483, 21 Atl. 200. 348 REGULATIONS AS TO PAVING REPAIRS. § 156 its rails, ties, and tracks are property within the street and subject to taxation generally; such property is not property benefited within the meaning of the municipal charter providing that the cost, or a part thereof, of any local improvement shall be assessed upon the property benefited thereby. 7 But where a street railway company having permission to lay a double track road covenanted with the city to pave and keep in repair the streets in and about the rails of its track, it was decided that such covenant extended to the entire space between the tracks. 8 A permit to the company to relay its rails in a paved street necessarily includes the taking up of the pavement. 9 No estoppel against a street railway com- pany to contest the legality of an order as to the laying and main- taining of pavements arises from the fact that it has obeyed such order. 10 § 156. Paving and repaying — Particular acts and ordinances construed. — Where an ordinance grants a street railway company permission to use and occupy certain streets with its tracks, and imposes upon the company the duty to pay the cost of improve- ment between its tracks and for a certain distance each side thereof on all highways traversed by such company which shall thereafter be improved, it is to be construed, there being no pro- vision therein limiting its application to the streets included in the ordinance or any words indicating an intention to do so, as 7. People ex rel. Davidson v. Gilon, But see City of Boston v. Boston 126 N. Y. 147, 27 N. E. 282, 37 St. Elevated Ey. Co., 186 Mass. 274, 71 Rep. (N. Y.) 17. In the ease cited N. E. 295. the provision of the New York char- A statute, however, requiring a ter, under the Consolidation Act of street railway company to pave that 1882, was construed. The present portion of the street lying between provision is section 949 of chap. 466 its rails has been construed as not of 1901, and is substantially the same referring to that part of the street as the former provision. lying between the rails of double 8. Mayor of City of New York v. tracks. Robbins v. Omnibus R. Co., Second Ave. R. Co., 102 N. Y. 572, 7 32 Cal. 472. N. E. 905. 9- North Chicago St. Ry. Co. v. See Montgomery St. Ry. Co. v. Dudgeon, 104 111. 477, 56 N. E. 796. Smith, 146 Ala. 316, 39 So. 757; City 10. City of Worcester v. Worcester of St. Louis v. St. Louis R. Co., 50 Consol. St. Ry. Co., 192 Mass. 106, Mo. 94. 78 N. E. 222. 349 § 157 REGULATIONS AS TO PAVING EEPAIES. applying to all streets occupied by the company. 11 An ordinance requiring a company to repair that portion of the street torn up by it in laying its tracks will not be construed as requiring that new material must be used in doing such work. Under such an ordinance the company may use such of the old material as is suitable for the purpose. 12 Where an ordinance authorizing the construction of a single track railway with necessary sidings on certain streets required the company to pave the parts of the streets on which its tracks were laid, and to pave the whole width of the streets where sidings were laid, and at the time the railway was constructed the pavement had not yet been laid, and the com- pany notified the borough of its intention to remove its sidings from a certain street as soon as the frost was out of the ground, and subsequent to the notice an ordinance authorizing the paving of the street was approved, it was held that the company was not required to pave the entire width of the street at the place from which the siding was removed. 13 Under a statute permitting a city to recover from a street railway company the value of all paving between its tracks and for a certain distance outside thereof, such amount to be refunded to the abutting property owners in proportion to the amount originally assessed against their prop- erty, the company cannot be compelled to pay the value of such improvement neither to an old street car company whose rights have been completely forfeited nor to the city claiming in its right, because of the fact that the street abuts upon a public square. 14 § 157. Duty as to adjusting roadbed — Laying new pavements. — Under its common-law duty to maintain its tracks in a public street so as not to be an obstruction to travel thereon when a new pave- 11. City of McKeesport v. Pitts- United Ry. Co., 134 Mich. 11, 99 N. burg, M. & C. Ry. Co., 213 Pa. St. W. 411, 3 St. Ry. Rep. 452, 133 Mich. 542, 62 Atl. 1074, 4 St. Ry. Rep. 937. 608, 95 N. W. 736. Compare Mayor v. Eighth Ave. R. 13. Shamokin Borough v. Shamo- Co., 7 App. Div. (N. Y.) 84, 39 N. kin & Mt. Carmel Elee. Ry. Co., 206 Y. Supp. 959; Mayor v. New York & Pa. St. 625, 2 St. Ry. Rep. 832, 56 H. R. Co., 64 Hun (N. Y) 635, 19 Atl. 64. N. Y. Supp. 67 ; affd., 139 N. Y. 643, 14. City of Oskaloosa v. Oskaloosa 35 N. E. 206. Traction & L. Co., 141 Iowa 236, 119 12. City of Detroit v. Detroit N. W. 736. 350 REGULATIONS AS TO PAVING - ■ KEPAIES. 157 ment is ordered, a street surface railroad company must relay its tracks and adjust its roadbed to the new pavement and grade. But it is decided that an agreement on the part of a street railway company to keep the street between its tracks in repair is not a contract to improve such space or make it anew. To create such a liability there must be an expess stipulation in the franchise to that effect. 16 So where a street railway is incorporated under an act requiring it to keep the space between its tracks on the streets, roads, and avenues on which they are laid " in good repair," it has been decided that since the charter of the. company only re- quired it to repair the pavement between its tracks it cannot be required to lay down a new pavement or pay the expense of re- paving between its tracks. In such a case, however, it may be required to keep in repair a new pavement as laid. 17 But in a recent case in New York it is said : " The question of what shall such ordinances as the city council shall adopt in regard to paving, re- pairing, and grading the streets, and to prevent obstructions thereon, does not require it to pave, repair, or grade the streets, but simply that it shall not obstruct the city in improv- ing the streets. Provisions of street railway charters that the company shall keep the streets occupied in good order or repair, or shall keep in con- stant repair that portion of the street which they use and occupy, have been held to require the company to keep in repair the whole width of the street, and not merely the portion be- tween the tracks. Philadelphia v. Thirteenth & Fifteenth Sts. Pass. Ey. Co., 169 Pa. St. 269, 36 W. N. C. 428, 33 Atl. 126. Where the franchise is upon condition that the company keep the surface of the street inside its rails and six inches outside its tracks in good repair, the company must re- pair such streets within the munici- pality as it is authorized to construct and operate by an act imposing no such duty. Duluth v. Duluth St. R. Co., 60 Minn. 178, 62 N. W. 262; 15. Columbus v. Columbus St. R. Co., 45 Ohio St. 98, 12 N. E. 651. See Western Paving & Supply Co. v. Citizens' St. Ry. Co., 128 Ind.' 525, 26 N. E. 188. 16. Indianapolis & Eastern Ry. Co. v. Town of New Castle, 43 Ind. App. 467, 87 N. E. 1067. Where an ordinance gives a street railway company the right to use a street on condition that the company keep in repair the space between the rails, and for two feet on each side thereof, the city cannot compel the company to construct a new pave- ment in such ■ space, as the duty to repair does not necessarily include the duty to pave. State ex rel. Kan- sas City v. Corrigan Consol. St. Ry. Co., 85 Mo. 263, 55 Am. Rep. 361. 17. City of Williamsport v. Wil- liamsport Passenger Ry. Co., 206 Pa. St. 65, 1 St. Ry. Rep. 689, 55 Atl. 836. Philadelphia v. Hestonville, M. &, F. Pass. R. Co., 177 Pa. St. 371, 35 Atl. 718. In the case cited it was also held that the charter provision that the company shall be subject to 351 § 157 REGULATIONS AS TO PAVING - • REPAIRS. constitute keeping a pavement in the tracks of a railroad com- pany in good order and repair is to be determined somewhat at least by reference to existing and surrounding conditions, and in our judgment it would be altogether too narrow a view to hold that where a municipality had for sufficient reason decided to pave a street with asphalt or other new pavement a railroad might discharge its obligations to keep its part of the street in good order and repair by merely patching up a dirt road or some species of pavement which had*beeome antiquated and out of condition, and which was entirely different from that adopted in the remainder of the street." 18 So in this State it has been decided that a pro- vision in a street railway franchise requiring the company to keep a certain space of the street paved with " small stone," and " that the same should at all times be kept in good condition," authorized Norristown v. Norristown Pass. Ry. Co., 148 Pa. St: 87, 1 Pa. Adv. Rep. 460, 23 Atl. 1060. 18. Mayor of New York v. Harlem Bridge, Morrisania & F. R. Co., 186 N. Y. 304, 78 N. E. 1072; affg. 100 App. Div. (N. Y.) 257, 91 N. Y. Supp. 557. Per Hiscock, J. In New York the provision of the statute requiring a railroad to " pave and keep in permanent repair that portion of such street * * * between the tracks " charges a, railroad with liability for its portion of the cost of a new and improved pavement when required by new conditions, not merely for the cost of repairing an old pavement. Mayor of New York v. Broadway & Seventh Ave. R. Co., 130 App. Div. (N. Y.) 834, 115 N. Y. Supp. 872. Under the provision of the New York law, to keep in permanent re- pair the pavement between its tracks and for two feet in width outside thereof, under the supervision of the municipal authorities, and whenever required by them to do so it is de- cided that when such authorities deem it advisable to lay a new and im- proved roadway, owing to the fact that the existing pavement, as a whole, is in bad repair, a street rail- way company is liable for its share of the expense, therefor, without re- gard to the condition of the pavement it is required to keep in repair. And in such a case it is further decided that the company has no constitu- tional right to be heard upon the question whether the new pavement is reasonable and proper. City of New York v. New York City Ry. Co., 132 App. Div. (N. Y.) 156, 116 N. Y. Supp. 939. But in an earlier case where a street railroad company had occupied a street without any pavement be- tween the rails for about eighteen years, it was held that a city could not recover the cost of paving be- tween the rails with asphalt, since it did not appear that at the time the city directed the pavement to be made, the space occupied by the rail- road was not in good order or repair or that the pavement was necessary. City of Binghamton v. Binghamton Ry. Co., 61 Hun (N. Y.) 479, 16 N. Y. Supp. 225. 352 REGULATIONS AS TO PAVING EEPAIES. § 157 the village granting the franchise to compel the railroad company to repave with vitrified paving brick. 19 And in Indiana it is decided that a street railway company may be liable in damages for its failure to pave a street under a provision in its franchise that it shall keep a certain portion of the street in as good repair and condition as other parts of the street though at the time the tracks were laid the street was only graded and graveled. 20 19. Village of Mechanicville v. Stillwater & M. St. R. Co., 35 Misc. Rep. (N. Y.) 513, 71 N. Y. Supp. 1162; affd., 174 N. Y. 507, 66 N. E. 1117. 20. Columbus St. Ry. A L. Co. v. City of Columbus, 43 Ind. App. 265, 6 St. Ry. Rep. 782, 86 N. E. 83. The court said : " If the contract — the ordinance becoming a contract upon its acceptance — merely stipulates for the repair of the street, as counsel for appellant assume in argument, then the obligation to pave was not created, and the city cannot recover. Western Paving & Supply Co. v. Citi- zens' St. Ry. Co., 128 Ind. 525, 533, 26 N. E. 188, 28 N. E. 88, 10 L. R. A. 770, 25 Am. St. Rep. 462; State ex rel. Corrigan v. St. Ry. Co., 85 Mo. 263, 55 Am. Rep. 361; Hurley v. In- habitants of Trenton, 66 N. J. L. 538, 49 Atl. 518; In re Repairing Fulton Street, 29 How. Prac. (N. Y.) 429; City of Williamsport v. Wil- liamsport Pass. R. Co., 203 Pa. St. 1, 52 Atl. 51. "The agreement is not only to keep that portion of the street desig- nated in good repair, but also to keep it in as good condition as other parts of the street are kept by the city. The phrase ' good repair,' does not necessarily mean good condition. A dirt road might be in good repair and yet be in poor condition to bear the increased traffic of a modern city. The presumption is that the word ' condition,' meant something, and it must be regarded. The purpose for which streets are established and im- proved is well known, and the parties must be considered as contracting in view of such purpose. The part of the street described in the contract might be in good repair as a graveled street and yet come very far from be- ing in aa good condition as the rest of the street is kept by the city. It must be also remembered ' that such charter is to be strictly construed against the railway company, and that it has no doubtful rights under the charter, for where there are doubts they are construed against the grantee and in favor of the city.' Western Paving & Supply Co. v. Citi- zens' St. Ry. Co., supra, at page 530 of 128 Ind., page 190 of 26 N. E. (10 L. R. A. 770, 25 Am. St. Rep. 462). The contract, therefore, required that the space designated be paved by the railway company when it was necessary to do so in order to keep the same in as good condition as the rest of the street is kept by the city. State ex rel. v. Jacksonville St. Ry. Co., 29 Fla. 590, 10 So. 590; Mayor etc., v. Harlem Bridge M. & F. Ry. Co., 186 N. Y. 304, 78 N. E. 1072. " When it is determined that a paved street may be in better con- dition for travel than an unpaved one, further discussion is foreclosed by the agreement which the parties have themselves made and the aver- ments contained in the complaint. Having refused to comply with its 23 353 §.158 REGULATIONS AS TO PAVING EEPAIES. And where a charter specifies that the company shall keep the space between its tracks " at all times well paved and in good order," and that nothing in the charter is to prevent the munici- pality from changing the grade of streets or otherwise improving them, and that in case such change or improvement is made the company shall conform their railroad thereto, it has been held to require a street railroad to lay a concrete pavement between its tracks where the municipality has improved the street by laying such a pavement therein. 21 So where a company is required by its charter to pave between the tracks in conformity with any im- provement which may be made in the street, it has been decided that the company can be compelled to pave its portion of the street with Belgian blocks, where it appears that the street has been macadamized for several years and by constant use has be- come worn and unfit. 22 A court of equity will not enjoin a municipality at the instance of a street railway company from paving a street in a particular way where the court finds that such paving is a municipal improvement and betterment, intended for the better and modern accommodation of the traveling public, although such paving will increase the difficulty of operating street cars when weather conditions are bad, without, however, render- ing the operation of the cars wholly impossible. 23 § 158. Paving and repaving — Obligation assumed by city. — In the absence of a contract with a municipality the liability of a street railway company to bear the expense of repaving a street is measured by the statute. 24 But a city in granting a franchise to a street railway company may bind itself to pay the expense of repaving or repairing the street between the rails, and such a con- tract is not ultra vires, nor is it in contravention of the principles that it is unlawful to impose a tax to aid a private enterprise or contract engagement, the appellant 22. Borough of McKeesport v. Me- became liable to appellee for damages Keesport Pass. Ey. Co., 158 Pa. St. so caused, and its demurrers were 447, 27 Atl. 1006. correctly overruled." 23. Mahanoy City & C. Ey. Co. v. 21. District of Columbia v. Wash- Ashland Borough, 224 Pa. St. 375, ington & G. E. Co., 1 Mackey (D. C.) 73 Atl. 338. 361. 24. Mayor of New York v. Bleeeker 354 REGULATIONS AS TO PAVING EEP AIRS. § 159 that a city cannot engage in a work of internal improvement. 25 And where a city in granting a franchise assumed the obligation of paving, repaving, and repairing of the pavement in the streets through which the grantee's railway ran, both within and without the tracks, it was held that the obligation of the city extended not merely to the foundation of the roadbed outside of the tracks, but included the foundation necessary to the support of the tracks. 26 And a city ordinance was held not to be ultra vires which pro- vided that the city should pay the expense of constructing six inches of concrete as a foundation for the ties of a street railway to rest upon. 27 § 159. Paving and repaving — Power of legislature to alter provision in franchise as to. — Where at the time of a city grant- ing a franchise a law of the State provided that the legislature had the power not only to repeal and amend the articles of incorporation of corporations, but to impose any conditions upon the enjoyment of their franchises which it might deem necessary for the public good, a provision in a franchise of a street railway company exempting it from any requirement to pave or make any improvements upon the streets except as provided in the franchise, does not constitute a contract which cannot be impaired by subsequent legislation with reference to paving other than that contained in the franchise. 28 Though the condition in a grant by a city to a street railway corn- Street & Fulton Ferry E. Co., 130 United Ey. Co., 134 Mich. 11, 1 St. App. Div. (N. Y.) 830, 115 N". Y. Ey. Eep. 372, 95 N. W. 992, 99 N. W. Supp. 592. 411. 25. City of Detroit v. Detroit 28. Marshalltown Light, Power - pair. 52 Where a street railroad must cross one of the canals of the State over which it has no right to build a bridge, it may cross a bridge already built by the State, with the permission of the State authorities, without thereby making the bridge a part of its appliances, for a latent defect in which it must be held responsible 50. Philadelphia v. Philadelphia keep the portion of the street covered City Pass. Ry Co., 177 Pa. St. 379, by its tracks and two feet on either 35 At. 720. side thereof, in repair. The same per- 51. Cedar Rapids v. Cedar Rapids, mission on the same conditions was M. & C. Ry. Co., 108 Iowa 406, 79 N. granted another street railway com- W. 125. pany on a parallel street. No dis- 52. Northern Cent. Ry. Co. v. tinction was made by charter or ordi- TJnited Rys. & Elec. Co., 105 Md. 345, nance, between streets and bridges, 66 Atl. 444, 6 St. Ry. Rep. 171, so and both railway companies laid holding where in 1868 an ordinance their tracks on such bridges. It was was passed providing for the raising held, that such bridges were streets, of the grade of a city street, so as to so far as the duty to keep the streets permit a railroad company entering in repair was concerned, and that the the city to construct its tracks under railroad company, which was required the street which was carried over- to keep the entire bridge in repair, head by means of a bridge. Thereto- could recover over against the street fore an ordinance had been passed railway company for its proportion granting a street railway company of the expense, based on the portion permission to lay double tracks upon of the bridge which the ordinance re- this street on condition that it should quired it to keep in repair. 362 BEGULATIONS AS TO PAVING REPAIRS. § 163 if discoverable in the process of manufacture. 53 But' if the charter of the company required it to repair such portion of all bridges in the city as are occupied by its tracks, and its tracks are laid upon a bridge built over a canal and an injury is occasioned to a third person by want of repairs upon the portion of the bridge between the tracks, so that the city making the said repairs had recovered against the canal proprietor therefor, the latter, it was held in Massachusetts, might recover the amount of the judg- ment against the railroad company, including the cost of defend- ing against the city's action, providing the action was defended at the request of the company, or for its benefit, after notice to come in and defend. 54 If by contract with the city the company is bound to maintain the bridges within a municipality upon which its tracks are laid in good repair, the duty may be enforced by mandamus. 55 § 163. Liability of company for negledt to repair — How enforced. — A street surface railroad company is not discharged from its duty to the public to keep its roadbed in repair by the omission of the city to impose such obligation in the franchise granted to the company, and it is liable directly to any person injured by reason of a defect arising from its negligence. 56 Where the duty of keeping in repair and rep'aving a street is imposed by statute or by ordinance, city councils- may, after notice to the rail- road company upon whom the duty devolves, cause the street to be closed, the cars stopped, and the street repaved at the expense of such company, and the latter will not be entitled to set off injury to its business by the stopping of the cars. 57 If the railroad com- pany fail to make the repairs, the city, being chargeable therefor, 53. Birmingham v. Rochester City ton, 23 Tex. Civ. App. 480, 56 S. W. & Brighton R. Co., 137 N. Y. 13, 32 998; Citizens' St. Ry. Co. v. Ballard, N. E. 995, 49 St. Rep. (N. Y.) 888; 22 Ind. App. 151, 1 Rep. 565, 52 N. revg. 45 St. Rep. (N. Y.) 724, 18 X. E. 729; Ober v. Crescent City R. Co., Y. Supp. 649. 44 La. Ann. 1059, 52 Am. & Eng. R. 54. Proprietor of Locks v. Lowell Cas. 576, 11 So. 818; Bradwell v. H. R. Co., 109 Mass. 221. Pittsburgh & W. E. Pass. R. Co., 153 55. State ex rel. New Orleans v. Pa. St. 105, 25 Atl. 623. Canal & Claiborne St. R. Co., 44 La. 57. Philadelphia v. Thirteenth, Ann. 526, 10 So. 940. etc., R. Co., 3 Pa. Dist. 468, 15 Pa. 56. Laredo El. & Ry. Co. v. Hamil- Co. Ct. 291. 363 § 163 REGULATIONS AS TO PAVING BEPAIKS. may repair the defects ; and if it proceed in the usual way and no fraud is shown nor any facts to impeach the reasonableness of its account for the expense thereof, it may recover the sum actually expended in the work against the railroad company. 58 If the company is under contract with the city that in case of a change of grade its road shall be changed to conform to such grade of improvement upon notice from the borough engineer, at its ex- pense, it is liable to pay the expense of lowering its whole track, where upon notice to make its road correspond with the change of grade it merely lowers its rails, leaving the remainder of its track 58. Mayor, etc., of New York City v. Second Ave. R. Co., 102 N. Y. 572, 7 N. E. 905. Where the obligation is imposed by franchise or ordinance upon the com- pany to pave and keep in repair the pavement between and along the tracks in the streets and its jails or refuses to do so, the city may per- form the necessary work in order to complete or repair the pavement and may charge the reasonable cost of the work to the company. District of Columbia v. Washington & G. R. Co., 1 Mackey (D. C.) 361; District of Columbia v. Washington & G. R. Co., 4 Mackey (D. C.) 214; Colum- bus v. Columbus St. R. Co., 45 Ohio St. 98, 12 N. E. 651. And where a city ordinance re- quired a street railway company to keep the street pavement within its right of way repaved and the city, upon failure of the company after notice to repave, did the work and sued for the cost of the same, it was held that in the absence of evidence showing actual loss by the city's de- parture from the letter of the ordi- nance, the railway company could not defend either on the ground that un- der the ordinance its obligation was only to repave its portion at the time the city was repaving the rest, where- as the city did not repave its portion until several months after, or that the city had changed the standard of asphalt. City of Reading v. Reading & S. W. St. Ry. Co., 215 Pa. St. 132, 4 St. Ry. Rep. 957, 64 Atl. 335. Where a lien for paving as- sessments has been ascertained and fixed in favor of a city against a street railway by decree of court, and such railway is sold under foreclo- sure of a mortgage executed subse- quent to such lien, the purchaser of the property at such sale may re- deem from the lien for the paving assessments, and upon such redemp- tion he will be subrogated to the rights of the city in respect to such lien, and will hold the property as against a lien subsequent to that of the mortgage even though it may be the holder of such subsequent lien. City of Lincoln v. Lincoln Street Ry. Co., 5 Neb. (unofficial) 256, 2 St. Ry. Rep. 634, 97 N. W. 255. As to priority of a lien of a city for the cost of keeping in repair the streets between the rails and on each side of the rails of a street rail- way company, see Pensacola v. North- up, 66 Fed. 689, 14 C. C. A. 59; To- ledo, D. & B. R. Co. v. Hamilton, 134 U. S. 296, 10 S. Ct. 546, 33 L. ed. 905; City of Chicago v. Sheldon, 9 Wall. (U. S.) 50, 19 L. ed. 594. 364 BEGTJLATIONS AS TO PAVING KEPAIES. § 163 in the same position that it was before. 59 If by reason of the company's neglect and the city's liability also to keep the street in repair, recovery is had against the city for an injury occasioned by such neglect, the latter may recover from the company the amount of the judgment so obtained against it. 60 It is not every defect within or near its tracks in the public street for which the lailroad company is liable; for illustration, if a switch be placed in a crosswalk of the street in a proper manner, level with the grade of the crosswalk and with its flange below the surface of the crosswalk, which crosswalk the city, and not the company, was bound to keep in repair, the company is not liable for an injury from a defect occasioned by a subsidence or wearing away of a portion of the crosswalk leaving the switch properly located, and thus causing an obstruction. 61 The company cannot avoid lia- bility to answer to the city or to a party injured for any damages occasioned by reason of the company's breach of its contract or duty to keep the street in repair by leasing its road to another company and parting with the possession and control of its line. 62 But a provision in the statute that companies incorporated there- under shall keep the portion of the street between and for a stated distance outside of the rails in permanent repair, and that upon their failure to do so it may be done by the State at their expense, does not apply to a company chartered thereunder which is oper- ating a street railroad line as the lessee of another company chartered under a general railroad law imposing no such obliga- tion, even though the lessee may have relaid tracks in streets in different positions, or laid down an additional track. 63 A munici- pality, in the performance of its duty to maintain the highways in a condition safe for public travel, may take out cross-rods which project from the track of a street surface railroad company and prevent the proper paving of the street ; and the company is 59. McKeesport v. McKeesport leu, (Tex. Civ. App.) 39 S. W. 125, Pass. R. Co., 158 Pa. St. 447, 27 Atl. 1 Am. Neg. Rep. 529; Durfee v. 1006. Johnstown, G. & K. Horse R. Co., 71 60. Brooklyn v. Brooklyn City Ry. Hun (N. Y.) 279, 54 St. Rep. (N. Co., 47 N. Y. 475. Y.) 526, 24 N. Y. Supp. 1016. 61. Lowery v. Brooklyn City & N. 63. Gilmore v. TJtica, 131 N. Y. R. Co., 76 N. Y. 28. 26, 42 St. Rep. (N. Y.) 501, 29 N. E. 62. Fort Worth St. R. Co. v. Al- 841. 365 '§ 163 REGULATIONS AS TO PAVING REPAIRS. not entitled to a preliminary injunction restraining the city from interfering with the restoration of such rods, merely because the company apprehends that without them its tracks may be spread in the spring time and traffic may be interfered with, or become dangerous. 64 For a failure to keep its roadbed in repair so that the usefulness of the street shall not be impaired in any manner and so that traffic across or along the road shall not be obstructed, a street railroad company may be indicted. 65 Its duty to repair may also be enforced by mandamus. 66 If, however, there be an adequate legal remedy to enforce the duty to repair, the writ of mandamus will not issue. 67 The company is not liable to adjoin- ing owners for damages occasioned by cutting down its roadbed and grading it to the established grade under permission of the city, if the grading is done in a good and workmanlike manner and confined wholly within the street. 68 64. Schuylkill Trac. Co. v. Shen- tion company of its duty to pave a andoah, 23 Pa. Co. Ct. 222, 9 Pa. street pursuant to the terms of the Dist. 77. ordinance granting to the predeces- 65. Memphis, P., P. & P. R. Co. v. sor of the company the right to lo- State, 87 Tenn. 746, 11 S. W. 946; cate tracks in such street. Mayor of St. Louis v. Mo. By. Co., 87 Mo. 151. Borough of Rutherford v. Hudson 66. State v. Paterson, etc., B. Co., River Traction Co., 73 N. J. L. 227, 43 N. J. L. S05; State ex rel. v. New 63 Atl. 84, 4 St. Ry. Rep. 719. Orleans City Pass. Ry. Co., 42 La. 67. State ex rel. City of New Or- Ann. 550, 7 So. 606 ; State ex rel. v. leans v. New Orleans 4 N. E. R. Co., Jacksonville St. R. Co., 29 Fla. 590, 42 La. Ann. 138, 7 So. 226. 10 So. 590; State ex rel. v. St. Paul, 68. Inter-State Consol. R. T. Co. M. & M. Ry. Co., 35 Minn. 131, 28 v. Early, 46 Kan. 197, 26 Pac. 422; N. W. 3. Pratt v. Home St. R. Co., 49 Mo. App. Mandamus is the proper remedy 63. for enforcing performance by a trac- 366 TAXES SPECIAL ASSESSMENTS LICENSE FEES. § 164 CHAPTER IX. Taxes; Special Assessments; License Fees. Section 164. Legislative power to tax. 165. Municipal power to tax. 166. Uniformity required by Constitution. 167. Exemption from taxation. 168. Exemption must be in. clear terms. 169. Commutation for taxes. 170. Taxation of tangible property. 171. Taxation of same railroad in different municipalities. 172. Taxation of capital stock. 173. Taxation of franchise. 174. Taxation of franchise — Under particular statutes. 175. Taxation of earnings. 176. License fees. 177. License fees as exemption from taxes. 178. Effect of consolidation, transfer, or leasing. 179. Special assessments. 180. Rights of one who pays taxes on request of company — Rights of mortgagee. § 164. legislative power to tax. — The power of taxation is vested in the legislature and is practically absolute, except as re- strained by constitutional limitations. All its incidents are within the control of the legislature. The purposes for which a tax shall be levied; the extent of taxation; the apportionment of the tax; upon what property or class of persons the tax shall operate ; whether the tax shall be general or limited to a particular locality, and in the latter case the fixing of a district of assess- ment; the method of collection, and whether the tax shall be a charge upon both persons and property, or only on the lands, are matters within the discretion of the legislature, and in respect to which its determination is final. 1 It has power to form taxing 1. People ex rel. Hatch v. Rear- Brooklyn, 99 N. Y. 296, 306; Genet v. don, 184 N. Y. 431, 77 N. E. 970; County of Kings, 125 N". Y. 312, 320, aff'g. 110 App. Div.) (N. Y.) 831, 97 34 St. Rep. (N. Y.) 782, 26 N. e! N". Y. S. 553 ; People v. Fitch, 148 N. 272 ; People ex rel. Crowell v. Law- Y. 71, 42 N. E. 520; Genet v. City of rence, 41 N. Y. 129; People ex rel. 367 § 164 TAXES SPECIAL ASSESSMENTS districts for special purposes, without regard to the boundaries of political or municipal subdivisions of the State. 2 It determines all questions of discretion or policy in hearing and apportioning taxes ; it makes all the necessary rules and regulations and decides upon the agencies by means of which the taxes shall be collected. When, as may sometimes happen, the legislature transcends its functions and enacts, in the case of a tax law, a law whereby the property of the citizen is confiscated or taken for private purposes, the judiciary has Hie right and duty to interposed The property of one citizen cannot be taken to pay the tax or public debt of another, and a statute which imposes a liability of such a char- acter is unconstitutional as authorizing a deprivation of property without a hearing or due process of law. So a statute which im- poses a privilege tax upon companies engaged in the business of advertising in street cars, and making the street railway company liable for the payment of the tax, is unconstitutional in so far as it requires the payment of the tax by the street railway company, in that it deprives such company of its property without due process of law. 4 The legislature cannot be held to have intended to sur- render the taxing power unless its intention to do so has been declared in clear and unmistakable words. When there is no express contract against taxation in the charter of a corporation, it takes its charter subject to the same right of taxation in the- State that applies to all other privileges or property. The fran- chise to build and run a street surface railroad is as much subject to taxation as any other property. 5 It is a franchise obtained Griffin v. Mayor of Brooklyn, 4 N. 27 N. E. 235, 11 L. E. A. 835; People Y. 419; State v. South-Penn Oil Co., ex rel. Griffin v. Mayor of Brooklyn, 42 W. Va. 80, 24 S. E. 688. 4 N. Y. 419. In Maryland it is decided that on 3. Thomas v. Gay, 169 U. S. 264, street railway companies in Balti- 283, 42 L. ed. 740, 747, 18 S. Ct. 340; more city no other tax can, without Knoxville & O. R. Co. v. Harris, 99 special legislative authority, be laid Tenn. 684, 43 S. W. 115. upon the easements or franchises of 4. Knoxville Traction Co. v. Mc- the companies to occupy the streets Millan, 111 Tenn. 521, 2 St. Ey. Rep. than that authorized by the Act of 879, 77 S. W. 665. 1882. United Eys. & Elec. Co. v. 5. New Orleans City . Tract. Co., 64 N. J. L. 362, 48 Atl. 1118; affg. 63 N. J. L. 407, 43 Atl. 1060. New York. — Keegan v. Third Ave. R. Co., 165 N. Y. 622, 59 N. E. 1124; Cheyne v. Van Brunt A Erie B. R. •540 LIABILITIES OF COMPANY TO. 274 tion of its employees by the company and to the conduct of the Co., 97 App. Div. 56, 3 St. Ry. Rep. 713, 89 N. Y. Supp. 627; Koehne v. N. Y. & Q. C. R. Co., 32 App. Div. (N. Y.) 419, 52 N. Y. Supp. 1088; affd., 165 N. Y. 603, 58 N. E. 1089. Ohio. — Holmes v. Ashtabula R. T. Co., 10 Ohio C. D. 638. Pennsylvania. — Smedley v. Hes- tonville, M. 4 F. Pass. R. Co., 184 Pa. St. 620, 39 Atl. 544, 9 Am. & Eng. R. Cas. N. S. 649, 42 W. N. C. 169. Rhode Island. — Brunnchow v. Rhode Island Co., 26 R. I. 211, 3 St. Ry. Rep. 806, 58 Atl. 656. Texas. — El Paso Elec. Ry. Co. v. Harry, 37 Tex. Civ. App. 90, 3 St. Ry. Rep. 850, 83 S. W. 735; Citizens' Ry. Co. v. Craig, (Tex. Civ. App.) 69 S. W. 239; Houston & T. C. R. Co. v. Iseo, (Tex. Civ. App.) 60 S. W. 313; Texas & P. R. Co. v. Orr, (Tex. Civ. App.) 31 S. W. 696. Utah. — Mayor v. Oregon Short Line Co., 21 Utah 141, 59 Pac. 522. Virginia. — Reynolds v. Richmond & M. R. Co., 92 Va. 400, 23 S. E. 770. Washington. — Foster v. Seattle Elec. Co., 35 Wash. 177, 3 St. Ry. Rep. 912, 76 Pac. 995; Payne v. Spo- kane St. R. Co., 15 Wash. 522, 46 Pac. 1054. The degree of care required has been variously expressed as due and proper care, Camden & S. Ry. Co. v. Rice, 137 Fed. 326, 4 St. Ry. Rep. 788; high degree of care, Mont- gomery Traction Co. v. Whatley, 152 Ala. 101, 5 St. Ry. Rep. 6, 44 So. 538; Brod v. St. Louis Transit Co., 115 Mo. App. 202, 5 St. Ry. Rep. 645, 91 S. W. 993; Denison & Sher- man Ry. Co. v. Freeman, 38 Tex. Civ. App. 152, 3 St. Ry. Rep. 851, 85 S. W. 55; very high degree of care, Chicago City Ry. Co. v. Shreve, 226 III. 530, 5 St. Ry. Rep. 190, 80 N. E. 1049; extraordinary care, McBride v. Georgia Ry. & Elec. Co., 125 Ga. 515, 5 St. Ry. Rep. 153, 54 S. E. 674; greatest care, Maxwell v. Fresno City Ry. Co., 4 Cal. App. 745, 5 St. Ry. Rep. 50, 89 Pac. 367; utmost care, Kline v. Santa Barbara Consol. Ry. Co., 150 Cal. 741, 5 St. Ry. Rep. 55, 90 Pac. 125; Griffin v. Pacific Elec- tric Ry. Co., 1 Cal. App. 678, 4 St. Ry. Rep. 80, 82 Fac. 1084; Hayne v. Union St. Ry. Co., 189 Mass. 551, 4 St. Ry. Rep. 419, 76 N. E. 219; Lea- ner v. Metropolitan St. Ry. Co., 110 Mo. App. 215, 3 St. Ry. Rep. 555, 85 S. W. 110; and the highest degree of care: Alabama. — Birmingham Ry., L. & P. Co. v. Sawyer, 156 Ala. 199, 6 St. Ry. Rep. 765, 47 So. 67. California. — Cody v. Market St. Ry. Co., 148 Cal. 90, 4 St. Ry. Rep. 81, 82 Pac. 666. Illinois. — Chicago Consol. Tract. Co. v. Schritter, 222 111. 364, 5 St. Ry. Rep. 182, 78 N. E. 820. Iowa. — Hutcheis v. Cedar Rapids 6 M. C. Ry. Co., 128 Iowa 279, 4 St. Ry. Rep. 301, 103 N. W. 779. Maryland. — United Rys. & Elec. Co. v. Weir, 102 Md. 286, 4 St. Ry. Rep. 398, 62 Atl. 588. Massachusetts. — Kuhlen v. Bos- ton & N". St. Ry. Co., 193 Mass. 341, 5 St. Ry. Rep. 385, 79 N. E. 815. Michigan. — Beattie v. Detroit United Ry., 158 Mich. 243, 6 St. Ry. Rep. 350, 122 N. W. 557. Missouri. — O'Gara v. St. Louis Transit Co., 204 Mo. 724, 5 St. Ry. Rep. 638, 103 S. W. 54; Schloemer v. St. Louis Transit Co., 204 Mo. 99, 5 St. Ry. Rep. 633, 102 S. W. 565; Woas v. St. Louis Transit Co., 198 Mo. 664, 5 St. Ry. Rep. 564, 96 S. W. 1017; Hurley v. Metropolitan St. Ry. Co., 120 Mo. App. 262, 5 St. Ry. 541 § 274 PASSENGERS DUTIES AND agents and servants of the corporation in the operation of the Rep. 648, 96 S. W. 714; McQuerry v. Metropolitan St. Ry. Co., 117 Mo. App. 255, 5 St. Ry. Rep. 592, 92 S. W. 912; Hamilton v. Metropolitan St. Ry. Co., 114 Mo. App. 504, 5 St. Ry. Rep. 627 89 S. W. 893. Utah. — Paul v. Salt Lake City R. Co., 30 Utah 41, 4 St. Ry. Rep. 1049, 83 Pac. 563. » Washington. — Hart v. Seattle R. & S. Ry. Co., 37 Wash. 424, 3^.St. Ry. Rep. 891, 79 Pac. 854. In New York it is decided that where a passenger, riding on a crowded trolley car, which was run- ning on the north-bound track of a double-track road, stood on the run- ning board next to the south-bound track and was struck by a, south- bound car and thiown to the ground, and it appeared, in an action brought to recover for the injuries caused thereby, that there was no defect in the construction of the road or the condition and operation of the cars, it is reversible error for the trial court to charge that "where cars are propelled by electricity it is the duty of the carrier to use every precaution that human skill and foresight can provide to secure the safety of its passengers; " that is to say, that the defendant rested under the duty of exercising the " utmost " care, since the expression " such precaution as human skill and foresight could sug- gest " is synonymous with " utmost." The duty which the defendant owed to the plaintiff, under the circum- stances, was simply to exercise rea- sonable care to carry him safely. To hold that the defendant was bound to use such precaution as human fore- sight and skill could suggest, that is, " utmost care," would obliterate the rule that when a passenger volun- tarily rides in a dangerous position he assumes the ordinary risks of that position. Gregory v. Elmira Water, Light & R. Co., 190 N. Y. 363, 6 St. Ry. Rep. 375, 83 N. E. 32. " The rule of law now generally recognized by the great weight of authority is that the legal measure of duty, except that made absolute by law, with respect to nearly all legal relations, is better expressed by the phrases ' due care,' ' reasonable care,' or • ordinary care,' terms used interchangeably. ' Reasonable care ' may be defined as such care as an ordinarily reasonable and prudent person exercises with respect to his own affairs, under like circumstances. In this definition it is the phrase ' under like circumstances ' that im- poses upon the term ' reasonable care' both its limitations and its elasticity. The term is a relative one; that is, the same act under one 3et of circumstances might be con- sidered due care, and under different conditions a, want of due care or neg- ligence. Therefore, the duty intended by the use of the phrase ' ordinary care ' is always referable to the cir- cumstances and conditions under which the act or omission to act is required to be performed." Raymond v. Portland R. Co., 100 Me. 529, 4 St. Ry. Rep. 364, 62 Atl. 602, per Spear, J. Thy are liable for an injury caused by their failure to exercise such care, although the negligence or misconduct of another passenger in ringing the bell as a signal for start- ing the car contributed to the injury. Nichols v. Lynn & B. R. Co., 168 Mass. 528, 47 N. E. 427; Pray v. Omaha St. Ry. Co., 5 Am. Electl. Cas. 407, 44 Neb. 167, 11 Am. R. & Corp. Rep. 522, 48 Am. St. Rep. 717, 62 N. W. 447. See also as to rule 542 LIABILITIES OF COMPANY TO. § 274 road. 3 When the passenger is in the exercise of ordinary care, the degree of care required on the part of the carrier to secure his safety must he the highest degree of care, reasonably to be expected from human vigilance and foresight in view of the mode and character of the conveyance in use, and reasonably consistent with the efficient operation of the road and practical prosecution of the business of the carrier. 4 So the following instruction was stated in the text, Carll v. Interstate Consol. St. R. Co., 23 R. I. 592, 51 Atl. 305; King v. Interstate Consol. St. R. Co., 23 R. I. 583, 51 Atl. 301 ; Le Blanc v. Sweet, 107 La. 355, 31 So. 766; Davis v. Paducah Ry. & L. Co., 24 Ky. L. Rep. 135, 68 S. W. 140; Citizens' St. R. Co. v. Jolly, 161 Ind. 80, 67 N. E. 935, 1 St. Ry. Rep. 157, and notes. But carriers of passengers are not required to make it impossible for passengers to expose themselves to danger, nor is the company re- quired to adopt any particular meth- od of construction; and whether the manner of construction is proper or not is not a question to be submitted to a, jury. Merchant v. South Chi- cago City Ry. Co., 104 111. App. 122. The dereliction of railway companies in failing to provide adequate accommodations for their passengers is declared to be so generally known that courts will take judicial notice of it. Capital Trac- tion Co. v. Brown, 35 Wash. Law Rep. 306, 5 St. Ry. Rep. 98. 3. California. — Bosqui v. Sutro R. Co., 131 Cal. 390, 63 Pac. 682. Delaware. — McAllister v. Peoples Ry. Co., 4 Penn. (Del.) 272, 54 Atl. 743. Georgia. — Macon Consol. St. Ry. Co. v. Barnes, 113 Ga. 212, 38 S. E. 756. Illinois. — Chicago & A. R. Co. v. Dumser, 161 111. 190, 43 N. E. 698. Louisiana. — Kird v. New Orleans & N. W. R. Co., 105 La. Ann. 226, 29 So. 729. Missouri. — Hansberger v. Sedalia El. Ry., L. & P. Co., 82 Mo. App. 566. Montana. — Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334, 42 Pac. 860. New York. — Stierle v. Union R. Co., 156 N. Y. 70, 5 N. Y. Annot. Cas. 326, 50 N. E. 419, reargument denied 156 N. Y. 684, 50 N. E. 834. Texas. — Dallas Consol. Elec. St. Ry. Co. v. Broadhurst, 28 Tex. Civ. App. 630, 68 S.W. 315; Levi v. Camp- bell, 19 S. W. 438. See sections post, in this chapter. If the injury would not have oc- curred if two men instead of one had managed the car, the company has been held liable. Redfield v. Oak- land Consol. St. R. Co., 110 Cal. 277, 42 Pac. 822, modified in 42 Pac. 1063. The failure of a street railway company to employ men of experience and competent to operate cars by electricity is negligence. Blumenthal v. Union Electric Co., 129 Iowa 322, 4 St. Ry. Rep. 303, 105 N. W. 588. 4. Illinois. — Chicago City Ry. Co. v. Smith, 226 111. 178, 5 St. Ry. Rep. 189, 80 N. E. 716; Chicago Consol. Trac. Co. v. Schritter, 222 111. 364, 5 St. Ry. Rep. 182, 78 N. E. 820; Chi- cago City Ry. Co. v. Lannon, 212 111. 477, 3 St. Ry. Rep. 140, 72 N. E. 585; North Chicago St. R. Co. v. Polkey, 203 111. 225, 1 St. Ry. Rep. 94, 67 N. E. 793; West Chicago St. Ry. Co. v. Kromshinsky, 185 111. 92, 543 § 274 PASSENGEBS • DUTIES AND held correct: " The court instructs the jury, as a matter of law, that it is the duty of a street railway company to use the highest degree of care and caution, consistent with the practical opera- tion of the road, to provide for the safety and security of passen- gers while being transported." 5 And in an action for the ejec- tion of a passenger from a moving car, it is held that a proper instruction would be : " The defendant, through its servants in charge of such car, was required to do all that human care, vigi- lance, and foresight coifld reasonably do, in view of the character and mode of conveyance adopted, and consistent with the prac- tical operation of the road, to safely carry him as such passen- ger." 6 In the use of motive power, like electricity, power of such dangerous possibilities, it should be a very high degree of . 7 care. 56 N. E. 1110; Chicago City Ry. Co. y. Morse, 98 111. App. 662; affd., 197 111. 327, 64 N. E. 304; Kane v. Cicero & P. E. Ry. Co., 100 111. App. 181; West Chicago St. Ry. Co. v. Luka, 72 111. App. 60. Massachusetts. — Marshall v. Bos- ton & W. St. Ry. Co., 195 Mass. 284, 5 St. Ry. Rep. 428, 81 N. E. 195; Galligan v. Old Colony St. Ry. Co., 182 Mass. 211, 65 N. E. 48. Missouri. — Logan v. Metropolitan St. Ry. Co., 183 Mo. 582, 3 St. Ry. Rep. 564, 82 S. W. 126; Lehner v. Metropolitan St. Ry. Co., 110 Mo. App. 215, 3 St. Ry. Rep. 555, 85 S. W. 110. Nebraska. — Lincoln Traction Co. v. Webb, 73 Neb. 136, 3 St. Ry. Rep. 588, 102 N. W. 258 ; Lincoln Traction Co. v. Heller, 72 Neb. 127, 3 St. Ry. Rep. 582, 100 N. W. 197, 102 N. W. 262. Washington. — Denham v. Wash- ington Water Power Co., 38 Wash. 354, 3 St. Ry. Rep. 879, 80 Pac. 546. Wisconsin. — Wanzer v. Chippewa Valley Elec. R. Co., 108 Wis. 319, 84 N. W. 423. A street railway company is not bound to exercise towards a passen- ger the utmost care and diligence in providing against injuries which can be averted by human foresight, but it owes to a passenger " the highest de- gree of care which is consistent with the practical carrying on of its busi- ness. Pitcher v. Old Colony St. Ry. Co., 198 Mass. 69, 6 St. Ry. Rep. 189, 81 N. E. 876. 5. Chicago Consolidated Traction Co. v. Schritter, 222 111. 364, 5 St. Ry. Rep. 182, 78 N. E. 820, citing West Chicago St. Ry. Co. v. Johnson, 180 111. 285, 54 N. E. 334; West Chi- cago St. Ry. Co. v. Kromshinsky, 185 111. 92, 56 N. E. 1110. In Chicago City Ry. Co. v. Smith, 226 111. 178, 5 St. Ry. Rep. 189, 80 N. E. 716, a similar instruction was upheld, the objection that the word " consistent " was not qualified by the word " reasonably " being held to be without force. 6. Tri City Ry. Co. v. Gould, 217 111. 317, 4 St. Ry. Rep. 199, 75 N. E. 493. 7. Leonard v. Brooklyn Heights R. Co., 57 App. Div. (N. Y.) 125, 67 N. 544 LIABILITIES OF COMPANY TO. 275 § 275. Care required of carrier continued — Duty to carry safely — Reference to existing conditions. — The carrier and its servants in any ease are bound to use a degree of care commensurate with the circumstances of the case, as they appear, or can be observed with the use of ordinary care, or such care and foresight as is reasonably practicable. The carrier's employees must conduct themselves with reasonable care under all the circumstances, with a view to protecting their passengers. 8 The carrier owes the duty to a passenger of carrying him safely to his destination on its road, so far as his safety can be secured by the exercise of care commensurate with the dangers likely to occur and reasonably to be anticipated from the mode of transportation. 9 They must use a high degree of care to protect their passengers from dangers that should be anticipated in the exercise of due care. 10 The ex- posure of a passenger to danger which the exercise of reasonable foresight would have anticipated, and due care have avoided, is negligence on the part of the carrier. 11 The degree of care re- quired in any case must have reference to the conditions existing. It has been held that the utmost care and diligence which human skill and foresight suggest are required of a street railway com- pany for the protection of its passengers, when the conditions are such as call for that degree of care and diligence. 12 The situa- Y. Supp. 985; Denver Tramway Co. So. 559; Indiana Union Traction Co. v. Reid, 4 Colo. App. 53, 35 Pac. 269. v. Jacobs, 167 Ind. 85, 5 St. Ry. Rep. 8. Eegensburg v. Nassau Elec. R. 261, 78 N. E. 325; Indianapolis St. Co., 69 N. Y. Supp. 147, 58 App. Div. Ry. Co. v. Schmidt, 163 Ind. 360, 3 (N. Y.) 566; Feary v. Metropolitan St. Ry. Rep. 193, 71 N. E. 201; Ken- St. Ry. Co., 62 S. W. 452, 162 Mo. tucky & I. Bridge & R. Co. v. Buck- 75; Freeman v. Met. St. R. Co., 95 ler, 125 Wy. 24, 30 Ry. Law Rep. Mo. App. 314, 68 S. W. 1057; Mer- 1086, 5 St. Ry. Rep. 324, 100 S. W. rill v. Met. St. Ry. Co., 73 App. Div. 328; Spooner v. Old Colony St. Ry. (N. Y.) 401, 77 N. Y. Supp. 122. Tn Co., 190 Mass. 132, 4 St. Ry. Rep. approaching any place of danger — 431, 76 N. E. 660. as in attempting to run its cars 10. Hansen v. North Jersey St. R. through a mob — it is the duty of a Co., 64 N. J. L. 686, 46 Atl. 718. common carrier to use the utmost 11. Reem v. St. Paul City Ry. Co., cars to protect its passengers from in- 77 Minn. 503, 80 N. W. 638. jury. Bosworth v. Union R. Co., 1 12. Keegan v. Third Ave. R. Co., St. Ry. Rep. 757, 25 R. I. 202, 55 Atl. 34 App. Div. (N. Y.) 297, 54 N. Y. 490. Supp. 391. As, for example, where 9. Mobile Light & R. Co. v. Walsh, the car is followed at a distance of 146 Ala. 290, 4 St. Ry. Rep. 22, 40 a very few feet by a truck proceeding 35 545 5 275 PASSENGEBS - DUTIES AND tion and circumstances surrounding the cars at different times and places, the amount of traffic on the streets and on the cars, the dangers to be encountered in operating the cars over the par- ticular route or place, the rate of speed, and the motive power in use, are all to be taken into consideration. The fact that, ex- cept in boarding the car, alighting therefrom, and in taking and occupying a place therein, the passenger is unable to look out for himself, is also among the circumstances to be considered. 13 The care and skill required in the operation of street cars drawn by horses is not as great as that required in the management of electric or cable cars propelled at a much higher rate of speed. 14 A horse railroad company must, however, use reason- able care in selecting horses, and must take reasonable steps to ascertain whether the horses are safe for such use. 15 The em- rapidly and confined to the car track by the presence of vehicles on either side, the conductor of the ear is bound to exercise a high degree of care in requiring a passenger to leave it, Maverick v. Eighth Ave. R. Co., 36 N. Y. 378 ; Faris v. Brooklyn City N. R. Co., 46 App. Div. (N. Y.) 231, 61 N. Y. Supp. 670; Schenkel v. Pittsb. & B. Traction Co., 194 Pa. St. 182, 44 Atl. 1072; or, where it is approaching a steam railroad cross- ing, Coddington v. Brooklyn C. T. R. Co., 102 N. Y. 66, 5 N. E. 797; or, at a street crossing where a, runaway team might have been seen, Regens- burg v. Nassau Elec. R. Co., 58 App. Div. (N. Y.) 566, 69 N. Y. Supp. 147; West Chicago St. R. Co. v. Manning, 170 111. 417, 48 N. E. 958, 9 Am.