
    STREET RAILROADS — STATUTES—QUO WARRANTO.
    [Butler Circuit Court,
    October Term, 1899.]
    Smith, Swing and Giffen, JJ.
    State ex rel. Monett, Atty. Gen., v. C. & H. El. St. Ry. Co.
    1. Sec. 2502, Rev. Stat., Appues only to Original Construction.
    Section 2502, Rev. Stat., providing that no ordinance for the construction of a. street railroad shall be passed until the public notice of the application-therefor has been given, applies, so far as the notice is concerned, only to original construction of a route and not to an extension thereof.
    
      % Rule as to Estimating the I/ength or Track.
    The fact that the line of a street railway is partly within and partly beyond corporate limits, does not make it two separate roads; and in estimating the-length of track, under sec. 3438, Rev. Stat., relating to appropriation of the use of the tracks of another company within the municipality, the entire-distance between the termini of the line, and not that part only which is within the corporate limits, should be considered. Whether this provision of the statute is just and equitable or whether it would have been enacted in. view of present conditions, quaere †
    
    8. Municipae Authorities — Bridges.
    Under sec. 2640, Rev. Stat., municipal authorites have control of all bridges-within the municipality, although such bridges may have been built by the county, and can, therefore, grant a franchise to use such bridges for street, railway purposes. And if this were not so, the fact would not be available-in behalf of the state as intervenor by quo warranto in condemnation proceedings to which the county was not a party.
    4. Laws Authorizing Traffic Arrangements not Exclusive.
    While the acts of May 14, 1894, 910. D., 285, and May 21,1894, 91 O. E., 379, permit street railway companies to make traffic arrangements with other companies, in order to secure a joint use of tracks, these sections are not exclusive and do not interfere with the right, in the absence of such arrangements, to appropriate the use of the tracks under sec. 3440, Rev. Stat.
    6. Consent of Abutting Owners not Required as to Existing Tracks.
    Where an extension of a street railway line contemplates the use of existing tracks for a portion of the way, the consent of abutting owners as to-such portion is not necessary under sec. 3439, Rev. Stat., even though new trolley and feed wires are to be erected, and new curves constructed at the-intersection of streets.
    & Quaere, as to. Allegations by the State in Quo warranto.
    Whether the state can allege as a ground for quo warranto, against a street railway company seeking condemnation of the joint use of existing tracks, that the company has not obtained the consent of abutting owners, is questionable. Court is of the opinion that such claims should be asserted by the-parties in interest and in different actions.
    Quo Warranto.
   Smith, J.

This is a proceeding brought by the state of Ohio on the relation1 of the attorney general of the state, questioning the right of the defendant company to bring or maintain certain proceedings be un and now pending in the probate court of Butler county, Ohio, against the Hamilton- & Lindenwald Electric Transit Company, to condemn the joint use with said company of certain of the tracks of said last named company, over and along certain streets of the city of Hamilton, and over a bridge spanning the Great Miami river in said city, on the ground that for the reasons-stated in the petition the defendant company has no right in law to condemn or appropriate said joint use of the Hamilton & Lindenwald Electric Transit Company road, or to condemn or appropriate any way or right of way inside the corporation limits of said city, and that it ought to be ousted from the exercise of any of the unlawful claims and acts above stated, and restrained from further attempting to exercise any of them, and the prayer is that the court so adjudge.

The case was presented to us in a general demurrer to the petition, which reads as follows:

“(State of Ohio, Butler County, Circuit Court.)
“The State of Ohio ex rel. F. S. Monnett, attorney general of the state of Ohio, plaintiff, v. the. Cincinnati & Hamilton Electric Street Railway Company, defendant.
“Petition in Quo Warranto.
‘ 'F. S. Monnett now comes and represents to the court that he is the attorney general in and for the state of Ohio, duly elected, qualified and acting as such attorney general, and as such attorney general gives the court here to understand and be informed that the defendant, the Cincinnati and Hamilton Electric Street Railway Company, is a corporation incorporated and organized under the laws of the state of Ohio, and has its principal office and place of business in Hamilton, Butler county, Ohio, and has constructed and is operating a part of its railroad in Butler county, Ohio; that by the second section of its articles of incorporation it is provided thus:
“Second:. Said corporation is to be located at Cincinnati in Hamilton county, Ohio, and its principal business there transacted.

That by third section of its articles of incorporation it is provided as follows:

“Third: Said corporation is formed for the purpose of building, acquiring, maintaining, constructing, equipping, establishing, operating, leasing and owning a street railway with all necessary turnouts, sidetracks and switches (having Cincinnati, Ohio, and Hamilton as its termini), and to be operated by electricity or other motive power except steam for the conveyance of passengers, baggage, packages, express matter and United States mail (and freight) thereon over the full distance of said route or any portion thereof as the corporation may deem prudent and necessary, and passing in and through the counties of Hamilton and Butler between said cities of Cincinnati and Hamilton or any part thereof, and the right to extend the same beyond either terminus.
“Relator says that on June 23d, 1897, the city council of said city of Hamilton passed an ordinance granting to the said defendant the right to construct, maintain and operate a single or double track street railroad commencing in Front street on the south side of High street; thence south on Front street to Wood street; thence east on Wood street to Second street; thence south on Second street to Washington street; thence on Washington street to Frankfort street; thence on Frankfort street to Eane street; thence southward along Eane street to South avenue; thence east on South avenue to Central avenue; thence southward on Central avenue to the C. H. & D. Railroad crossing:
“Said ordinance in section 2 also provided that said railroad shall be constructed as near as practicable along the center of said street and alleys except on Front‘street between High and Court street, where said tracks shall be laid on the west side of the street so as to make the track of Front street south of Court alley in the center of the street.
“And said ordinance in section 4 thereof provides that said company shall have the right to carry passengers, baggage, packages, express matter and United States mail. -
“Relator says that the said defendant on the-day of September, 1899,' made application to the- board of control of the city of Hamilton for permission and authority to contruct, maintain and operate an extension of said route hereinbefore described, and that said board of control on the twenty-seventh day of September, 1899, passed an ordinance granting to the defendant, its successors and assigns the right to construct, maintain and operate an extension of its track and line of railway in the city of Hamilton as follows:
“Commencing at the present northerly terminus of the existing tracks of said company on Front street; thence by curves westward in High street; thence along High street to the bridge across the Miami river; thence over and across said bridge to Main street; thence along Main street to B. street; thence by curves northerly into B street, providing however, that except on the curves from Front street into High street and Main street into B street said company shall use and occupy only the existing. street railway tracks, and existing street railway electrical structures and equipments except trolley and feed wires on said street. And by section 2 of said ordinance it is provided that said street railroad shall be constructed and operated as a double track street railroad on High street from Front street to the bridge across the Miami river, and over and across said bridge to the westerly sideof A street and on Main street to the westerly side of A street to B street, and by curves into B street as a single track railroad.

Relator says that before the passage of said last named ordinance by the city of Hamilton, Ohio, no public notice of the application for said extension was given by the clerk of the corporation in one or more daily papers for a period of three consecutive weeks as required by law, and that therefore said ordinance is illegal and void.

Relator says that it is not true as recited in said last mentioned ordinance that a written consent of the majority of the property owners on the line of said proposed extension of said railroad represented by the feet front on the lots and lands abutting on said street and highways along which extension is proposed to be constructed, to the.building and operating of said railroad over said extension- has been given to said company, and it is not true that such consents have been filed with the clerk of said city, and relator says that in truth no such consents were given or filed, and for this reason said ordinance is a nullity.

“Relator says that defendant’s articles of corporation were granted and its road built solely under the authority of the act of the legislature of Ohio, passed May 17th, 1894, vol., 91, O. L., 285, entitled “An act to authorize and regulate electric railroads.”
‘ ‘Relator further says that in the year 1891, a street railroad company, a corporation duly incorporated under the laws of Ohio in pursuance of law and of ordinance of the said city of Hamilton and the order ot the board of commissioners of Butler county, Ohio, built and has ever since operated a passenger street railroad in said city, a part of which is between said B street where it connects with Main street, and extending thence along Main street eastward to and across the bridge across the Great Miami river; thence along High to the east side of Front street in said city, and its cars have been running at only a few minutes intervals over the same since its completion, the name of said company being the Hamilton & Eindenwald Electric Transit Company, and that it has a double track from the west side of said bridge to the east side of Front street, and- has constructed and is operating in said city about nine miles of street railroad.
“Relator says that the existing street railroad between the terminus of defendant’s railroad at Front and High streets and the intersection of B and Main streets where said defendant’s road will curve into B street, is owned and operated by the Hamilton & Eindenwald Electric Transit Company as a part oí its street railroad system, and that the distance between said points over which ordinance authorizes defendant to operate ■ its said railroad, is 2,310 feet, a part of which is double track.
“Relator further says that the said defendant company has only in operation in said city of Hamilton its tracks on the route defined in the orginal ordinance herein set forth, the distance between the termini of its said route as constructed and operated being over 7,060 feet, so that the said defendant company has not constructed and has not in operation in said city between the termini of the route eight times as much railroad way as it ■ seeks and claims the right to appropriate of said the Hamilton & Eindenwald Electric Transit Co.
“Relator says that the bridge over the Great Miami river between High and Main streets is 490 feet long, and that defendant has applied to the county commissioners of Butler county, Ohio, for the privilege of operating its said railroad over the railroad track of the Hamilton & Eindenwald Electric Transit Company, on said bridge, the double track of which on said bridge is 980 feet, and that said county commissioners have refused said defendant that right, and relator therefore, says that said defendant has no right or authority whatever to operate its railroad on the Hamilton & Eindenwald Electric Transit Company’s track over and upon said bridge, and relator says that said bridge is the property of said Butler county, and is exclusively under the control of the commissioners of Butler county, Ohio, and that the board of control of the city of Hamilton has no legal right or authority to authorize defendant to operate its said railroad over and upon the track of Hamilton & Eindenwald Electric Transit Company over said bridge.

Relator says that said defendant wrongfully and illegally claims and is attempting a certain franchise, privilege and right in contravention of law in this, that it claims the right against the wish and consent of said Hamilton & Eindenwald Electric Transit Company, to appropriate by condemnation proceedings in the probate court of Butler county, Ohio the joint use of a portion of said street railroad of said, the Hamilton & Eindenwald Electric Transit Company, on said High street over and across the said bridge and along the said Main street between said B street and along the east side of' Front street in said city, to-wit, its single track on Main street from the center of B street to the west curb of A street, its double track on Main street from the west curb line of A street to and across the Great Miami river connecting Main and High streets in said city, the double track on High street from the bridge to the center of Front street in said city, the total feet sought to be condemned being about 2,810 feet.

“Relator says that said defendant has commenced wrongfully and illegally in-the probate court of Butler county, Ohio, said condemnation proceedings against the Hamilton & Eindenwald Electric Transit Com-' pany to condemn the joint use with said company of so much of its tracks a; lies between said point in B street and said point in Front street above described, and said action is now pending in said probate court, and a jury is about to be impaneled and sworn to assess the compensation and damages by reason of said appropriation to be awarded to said Hamilton & Eindenwald Electric Transit Company, all of which is without the consent of the said the Hamilton & Eindenwald Electric Transit Company, and the said defendant as aforesaid wrongfully claims that it has the right to have all of its railroad over which it is operating outside of the city of Hamilton counted in order to claim that it has more than eight times as much track in operation as it seeks to appropriate of the Hamilton & Lindenwald Electric Transit Company.
“Relator says that all of the defendant’s railroad constructed and in operation outside of the city of Hamilton is an interurban railroad, and is not a street railroad.
‘ ‘Relator says that the railroad of the defendant constructed and in operation without the city of Hamilton is about thirteen miles in length, and was so constructed by authority granted by the county commissioners of the counties of Butler and Hamilton, and over a turnpike leading from Hamilton to Cincinnati, and under and in pursuance of said act of May 17, 1894, 91 O. E., 285; and relator says that the said defendant company refuses to enter. into traffic arrangements with said existing railroad company to-wit, the Hamilton & Eindenwald Electric Transit Company, between B street and Front street as aforesaid.
“Relator says that the only intention and purpose of the said defendant in so appropriating said track of the Hamilton & Eindenwald Electric Transit Company is to enable it to pass through the said city of Hamilton by making traffic arragements with another similar and interurban railroad which has its terminus at said Main and B street.
“Relator says that the defendant corporation has no right in law to condemn or appropriate said joint use of the Hamilton & Eindenwald Electric Transit Company’s road, nor any other part thereof, nor any other right to interfere with the same except by a traffic arrangement with the said street railway company, nor has it any lawful right to condemn or appropriate any way or right of way inside the corporate limits of the city of Hamilton, Ohio. ' Relator says that said defendant corporation ought to be ousted from the exercise of any of the unlawful claims and acts above herein stated, and restrained from further attempting to exercise any of the same.
“Wherefore, relator prays that the defendant be required to answer by what warrant it claims to condemn and appropriate the joint use of said railway of the Hamilton & Eindenwald Electric Transit Company, or to claim any right under the ordinance of the city of Hamilton or under the said articles of incorporation, or to proceed with said condemnation proceedings in said probate court of Butler count}?, Ohio, and that defendant be adjudged to be not entitled to any such franchise or right or to have any rights to condemn the joint use of said railway or any part thereof, or to have any right under said ordinance of the city of Hamilton, or under said articles of incorporation,- and that defendant be ousted of all the same, and that the court will issue an order restraining defendant from so doing or attempting to do any of said acts which is it above alleged defendant is about to do and threatening to do until the further order of the court, and relator prays for all other proper relief.
“E. S. Monnett, Attorney General.
“Millikin, Shotts & Millikin, S. W. Bennett, A. F. Hume, of counsel. ’ ’

The first reason assigned why the relief prayed for should be granted, is this: That no notice of the application by the defendant company to the board of control of the city of Hamilton for the extension of their 'tracks over certain streets of the city was ever published by the clerk of the corporation at any time, or before the passage by said board of the ordinance granting such extension, as provided by sec. 2502, Rev. Stat., and, therefore, that said ordinance was wholly void, and the defendant ■company is usurping the franchise of appropriating the joint use of the tracks of the existing street railway on the streets named in said ordi■nance.

In the first place we may say that, in many respects, the meaning of the statutes governing street railroads within and without municipal corporations is very hard to ascertain; and as to some of the questions presented in this case we have grave doubts. But it does seem quite clear that under the provsions of sec. 2501, Rev. Stat., no work is to be done in the construction of a street railroad (evidently within a municipal corporation, though it is not directly stated) until application for leave is made to the council in writing, and the council shall by ordinance have granted the permission and prescribed the terms and conditions upon and the manner in which the road shall be constructed and operated, etc. etc.; and sec. 2502, Rev. Stat., provides the manner in which the council shall proceed in such case, and, among other things, that such ordinance shall not be passed until public notice of the application has been given by the clerk of the corporation as therein provided, and the privilege is only to be granted to the individual or corporation who, in answer to the proposals, will agree to carry passengers at the lowest rate ■of fare, and only when the written consent of a majority of the property holders, as stated therein, is furnished.

In our opinion this section only applies, so far as notice is concerned, to the original construction of a route, and not to the extension thereof. The reason of the publication is, that proposals may be made as contemplated by the section. But by sec. 2505, Rev. Stat., power is expressly given to the municipal authorities to grant by ordinance to any corporation or individual, owning or having the right to construct a street railway, permission to extend il tracks, subject, however, to the provisions of secs. 8437-8-9-40-1-2 and 3, Rev. Stat. And by the first of these sections (3437) the rights is also given to extend an existing route within the corporation, and sec. 3439, Rev. Stat., again requires consents to such extensions, of the abutting owners as before stated, and making the provisions of secs., 2501, 2503, 2504 and 2505, Rev. Stat., apply. But sec. 2502, Rev. Stat., the only one requiring publication, is not made to apply to the extension.

Second. — It is claimed that the defendant company is usurping a franchise in seeking this condemnation, because the city of Hamilton, by the board of control, had no right to pass the ordinance giving to it the right to use the tracks of the Hamilton & Rindenwald company as it did.

The length of the tracks of the last company, which it is proposed that the defendant company shall use in its extension, is 2,310 feet. The length of the tracks of the Cincinnati road within the city is 7,060 feet. Sec. 3438, Rev. Stat., provides:

“That no authority shall be given by such municipal or county authorities, to occupy the track, whether single or double, or other structure, of any existing street railways for more than one-eighth of the entire distance between the termini of the. route, as actually constructed, operated and run over, of the company or individual to whom such grant is made.

If this 7,060 feet of defendant company’s tracks within the city is alone to be counted, it is manifest that the board of control violated the law in attempting to grant such right.

But it is claimed by the defendant company that not only this 7,060 feet of its road within the city but all of its tracks south of the city to College Hill shall be taken into the account. If this be so, its tracks so in use amount to much more than eight times 2,310 feet. The claim of the relator, as we understand, on this point is that in view of this provision, so much of defendant’s road as lies within the city is to be considered as one road, and that part of it without the city as another road.

As to this matter, we think there is much ambiguity in the statutes. It seems however, to us, that the statute, secs. 8437 and 3488, Kev. Stat., authorizes street railways to be ‘ ‘constructed or extended within or without, or partly within and partly without any municipal corporation or unincorporated villages. ” That is, if a corporation is organized under a charter which gives it a right to construct its road to a point, say, within the city of Hamilton (as we think was the case here), and, say, to Cincinnati, that it is authorized to construct its road between these termini if it can obtain a grant from the city of Hamilton to construct its tracks within that city, and from the county commissioners or other proper authority outside of the city of Hamilton. This is what sec. 3438, Rev. Stat., seems to mean; and that obtaining those grants from the different authorities does not make them two or more separate roads, but it is one and the same road, and in view of the proviso to the last named section, in estimating the length of the tracks, actually constructed, operated and run over by it, the distance between the termini so constructed, operated and run over is to be estimated, and not simply so much of it as lies within the city. Whether this is a just and equitable provision, or whether it would have been enacted in view of the present condition of affairs may well be doubted. But if the statute so provides, that is the end of it.

Third — It is urged that on the allegations of the petition, the board of control had no authority to grant any right to the defendant company to use the bridge over the Miami river, and that in the proceeding in the probate court it has no right to condemn from the Hamilton & Lind-enwald company the joint use of its tracks over the same, for the reason that such bridge is the property of Butler county, and is under the exclusive control of the commissioners of said county, and that such commissioners have refused to grant permission to defendant company to pass over the same.

The facts in regard to the ownership of the bridge or the law under which it was constructed, or whether it is within the city of Hamilton, are not definitely set out in the petition, but it is conceded in argument that it was built by the commissioners of said county under a special act of the legislature, passed March 7, 1892, and that it is within the city of Hamilton, and now, and has for many years constituted a part of the public highway, and is a great thoroughfare connecting two of the most public streets of the city. There is nothing in the act under which it was built by the county commissioners, that expressly gives them any control of this bridge after its erection. On the other hand we understand that, by sec. 2604, Rev. Stat., for instance, the municipal authorities "have the care, supervision and control of all public highways and bridges within the corporation,’’ an 1 this even if the bridge be built by the county. But if this be not so, the county is not a party to this condemnation proceedings, and it is difficult to see why the state should intervene in this way to protest its rights which it would seem could not be affected by a proceeding to which it is not a party.

Fourth— The further claim of the relator is, that the relief sought should be granted, for the reason that since the passage of the act of May, 17, 1894, 91 O. L., 285, under which it is claimed the defendant company was organized, it cannot condemn the right to the joint use of the tracks of an existing street railroad, and can only acquire the right to use them by purchase, lease or traffic arrangement, it is true that such statute and another passed at the same session, May 21, 1894, 91 O. I/., 379, do confer power upon such companies to make traffic arrangements with another company owning or operating a line within a municipal corporation, but we do not understand that those statutes provide that this is the only way in which the right can be obtained, or that it in any way interferes with the right to appropriate as given by sec. 3440, Rev. Stat. L. S. & M. S. Ry Co. v. Railway Co., 30 Ohio St., 604.

Fifth — The remaining question is this: Whether, in a case of this kind, where application is made for the extension of a route already in operation in a city or other municipal corporation, and that application is granted by the city authorities, and the right is limited to the use for the whole or a part of the distance of the track of another existing street railroad, and existing street railway, electrical structures and equipments, except trolley and feed wires, that the consent of the abutting proprietors on that part of the road where the existing tracks are to be used must be obtained, as it would be if the whole road was to be constructed. In the latter case, sec. 3439, Rev. Stat., certainly requires that the consents be given. But we are of the opinion that if the ordinance of the municipal corporation granting a right to a street railroad company to extend its tracks within the same, simply requires that for some part of such extension the company to which the right is so granted shall use the existing tracks of another company, and it is not authorized to construct a new track on that part of the route, that no consents thereto are necessary, the statute proceeding upon the idea, we suppose, that the original consents to the use of the street for one railroad track in effect is a consent to the use of said track by another company. Such seems to have been the holding of the court of common pleas of Cuyahoga county in Broadway & Newburg Co. v. Brooklyn Co., 9 Ohio Dec. Re., 25,which, it is said, was affirmed by the circuit court of that county and by the Supreme Court without report. But, as the ordinance passed by the board of control in the case before us provides that except on the curves mentioned, in extending its tracks as granted to it, the defendant company shall use only the "existing street railway tracks and existing street railway electrical structures and equipments, except trolley and feed wires,’’ and by implication, at least, the privilege is granted to the defendant company to erect new trolley and feed wires on said street, and the right being expressly given to construct such curves on the streets, does this alter the case and make consents necessary?

On this point I have entertained considerable doubt, but we have reached the conclusion that they are not necessary. So far as appears, the curves authorized to be constructed, may be wholly constructed in the space at the crossing of High and Front streets, and Main and B streets, and not be in front of the property of persons owning property abutting on the same, and we think the placing of a trolley or of feed wires for the use of the tracks by the defendant company is not .such a construction of an extension as to require consents. But if they are, it is exceedingly questionable whether this would entitle the state to intervene in this kind of proceeding to set up a claim of this character; such claim, we think, should more properly be asserted by the parties in interest, and in different actions. See State ex rel. v. Railroad Co., 50 Oh o St., 239. On the whole case, we think we ought to sustain a'demurrer to the petition and dissolve the temporary injunction heretofore allowed.

Alex F. Hume, and Millikin, Shotts & Millikin,-iot relator.

Fra7ik N. Wilcox and W. C. Shepherd, for defendant.  