
    Street Railway Company v. Street Railway Company.
    
      Consiihittonallaw—Street railway companies— When one may appropriate track of another.
    
    1. The provisions contained in section 3440, of the Revised Statutes, prior to the amendment of April 11,1890 (78 Ohio Laws 178), are constitutional; whether those added by that amendment are constitutional, quere? but if unconstitutional, they are distinct and separable from those of the1 original section, and do not affect their validity.
    2. A street railway company to which the council of a municipal corporation has granted the right to occupy a part of the track of , another company in accordance with section 3438, of the Revised Statutes, is authorizd by section 3440, without the aid of the amendatory provisions of April 11, 1890, to appropriate the track according to the grant, when the companies are unable to agree upon the compensation to be paid therefor; and the appropriation proceeding may be prosecuted under Chapter 8, of Title 2, of Part Third, of the Revised Statutes.
    (Decided December 5, 1893.)
    There are four cases between these parties, bearing the above title, here on error to the Circuit Court of Lucas county, and an action in Quo Warranto brought in this court on the relation of the Attorney-General against The Toledo Electric Street Railway Company, which were heard together.
    The cases are sufficiently stated in the opinion, which is intended to apply to all of them.
    
      
      Baker, Smith & Baker and John H. Doyle, for plaintiff in error.
    I. The amendment to section 3440, of April 11, 1890,, confers corporate power by a special act. Atkinson v. R. R. Co., 15 Ohio St., 21, 35; Lewis on Em. Domain, sections 237, 238, pages 317, 318; Lamb v. Lane, 4 Ohio St., 167, 175; R. R. Co. v. Ironton, 19 Ohio St., 299, 303; Harbeck v. Toledo, 11 Ohio St., 219 224; Currier v. R. R. Co., 11 Ohio St., 228, 231, 232; Moorhead v. R. R. Co., 17 Ohio, 340, 350, 353; State ex rel. v. Mitchell, 31 Ohio St., 592, 607; San Francisco v. S. V. W. W., 48 Cal., 493, 511; State ex rel. v. Cincinnati, 20 Ohio St., 36; State ex rel. v. Smith, 48 Ohio St., 211; Ayar’s Appeal, 122 Pa. St., 266, 278; Weinman v. Ry. Co., 118 Pa. St., 192, 201; Wyoming v. Pittsburgh, 137 Pa. St., 501, 502; Pittsburgh's Petition, 138 Pa. St., 413; Peoplev. The Central Pacific Railway Co., 83 Cal., 393, 405; State v. Trenton, 24 Atl., Rep., 478; State v. Plainfield, 24 Atl. Rep., 494.
    II. The amendment to section 3440 relates to subject matter of a general nature, and is confined in its operation to that portion of a certain class of property, namely— street railway tracks in use, which happen to be located in cities of a designated grade and class. So that street railway property in Toledo is governed by a law different fronj that which applies to street railway property of precisely the same kind, in precisely the same situation, in Cleveland, Cincinnati and elsewhere in the state, and it is, therefore, in conflict with article 2, section 26, of the Constitution of Ohio. Costello v. The Village of Wyoming, 27 Bull., 147; 30 N. E. Rep., 613; State ex rel. v. Ellet, 47 Ohio St., 90, 93; Kelley v. The State, 6 Ohio St., 271, 272; McGill v.The State, 34 Ohio St., 228, 238; R. R. Co. v. R. R. Co., 36 Ohio St., 239, 251; Revised Statutes of Ohio, sections 3440, 3441; Falk ex parte, 42 Ohio St., 638, 644; Gordon v. The State, 46 Ohio St., 607 627; Commissioners v. Rosche Bros., 29 W. L. Bull., 176; Cooley’s Const. Dim., 6th edition, pages 482, 483; Sutherland on Statutory Construction, section 118; Millet v. The People, 117 Ill., 294, 300 ; Pasadena v. Stimson, 27 Pacific Rep., 604, 606; Dougherty v. Austin, 28 Pacific Rep., 834, 836; Thomas v. Ry. Co., 40 Fed. Rep., 126, 130; Omnibus R. R. Co. v. Baldwin, 57 Cal., 160, 165 ; Miller v. Kister, 68 Cal., 143, 144, 145 ; San Francisco v. The Spring V. W. W., 48 Cal., 493; Spring V. W. W. v. Bryant, 52 Cal., 132,140; Davis v. Clark, 106 Pa. St., 377, 384; Scranton v. Silkman, 113 Pa. St., 191, 199; Opening of Ruan Street, 132 Pa. St., 257, 274; Kentucky Trust Co. v. Lewis, 82 Ky., 579, 581; Groesch v. State, 42 Ind., 561.
    III. Property already devoted to public use by one company or person, cannot, by the exercise of the power, of eminent domain, be taken from him and turned over to another company or person to be used in the same manner, for the same public use, and an act which attempts this is unconstitutional. Unless such act preserves to the first company such of its property as is necessary for the discharge of the public duties to which the property is devoted, it is void. McQuillen v. Hatton, 42 Ohio St., 202, 204.
    This statute authorizes the track or tracks of corporation No. 1, necessary and devoted to the public purposes of that company, to be appropriated to the use of corporation No. 2, for the same purpose and in the same manner, without guarding or protecting the first company in its use of this property for its public purposes, and it is therefore unconstitutional and void. Eewis on Em. Dom., section 276, page 363; West River Bridge Co. v. Dix, 6 How. (U. S.), 507, 537; Water Co. v. Water Co., .36 Cal., 639, 648; Reeves v. The Treasurer of Wood County, 8 Ohio St., 333, 346; Smith v. The Ry. Co., 25 Ohio St., 91, 100; Taylor v. The Commissioners of Ross County, 23 Ohio St., 22, 83; Attorney General v. Eau Clarie, 37 Wis., 400, 437; R. R. Co. v. Smith, 23 Kans., 745, 755.
    IV. The pretended classification under which corporate power is sought to be conferred, and by which a law of a general nature is to be made uniform throughout the state, is founded on incidents and characteristics arbitrary and restrictive, unreasonable and illusory. District Court Case, 34 Ohio St., 431, 441; Butzman v. Whitbeck, 42 Ohio St., 229, 223; Wasson et al. v. Commissioners, 28 W. L. Bull., 292, 293; Atkinson v. R. R. Co., 15 Ohio St., 21, 35; State 
      v. Pugh, 43 Ohio St., 98, 112 ; State ex rel. v. Ellet, 47 Ohio St., 90, 94; Sutherland on Stat. Const., sections 127, 129; State ex rel. Harris v. Herrmann, 75 Mo., 340, 348; Scowden’s App:, 96 Pa. St., 422; Ayar’s Appeal, 122 Pa. St., 266, 280; State v. Ramsey, 51 N. W. Rep., 112; Randolph v. Wood, 49 N. J. R., 85, 88; Zeigler v. Gaddis, 44 N. J. L., 363, 365; Gibbs v. Morgan, 39 N. J. Eq., 124, 127; Hammer v. The state, 44 N. J. R., 667, 669; Costello v. The Village of Wyoming, 27 Bull., 147; 30 N. E. Rep., 613; 49 Ohio St., 242; Platt v. The Pennsylvania Co., 43 Ohio St., 228, 244; R. R. Co. v. Hine, Admix, 25 Ohio St., 629; Long v. Mulford, 17 Ohio St., 508; Montgomery v. Jones, 5 Ind„ 525, 526.
    V. The act in question, if valid, does not authorize the appropriation of a joint and equal use in the property.
    VI. The act in question, if valid, does not authorize the appropriating company to convert a horse railway into an electric road, or to make electrical and other connections and appliances to the horse railroad, to enable the appropriating company to propel its cars by means of electricity over existing tracks.
    These two questions may be most conveniently considered together. Malone v. Toledo, 34 Ohio St., 541, 546; Giesy v. R. R. Co., 4 Ohio St., 308, 328; R. R. Co. v. Holler, 7 Ohio St., 224, 225; Lewis on Em. Dom., Sec. 505; Hill v. R. R. Co., 7 N. Y., (3 Seld.), 152; In re Water Commrs., 96 N. Y., 351, 357; De Camp v. R. R. Co., 47 N. J. R„ 43, 50; R. R. Co. v. De Camp, 47 N. J. R., 518, 544; Lamb and McKee v. Lane, 4 Ohio St., 167, 175; Harbeck v. The City of Toledo, 11 Ohio St., 224; Watson v. Acquackanonck Water Co., 36 N. J. L., 195, 196; Currier v. Marietta & Cincinnati R. R. Co., 11 Ohio St., 228, 232; Miami Coal Co. v. Wigton, 19 Ohio St., 560, 561; Atkinson et al. v. The M. & C. R. R. Co., 15 Ohio St, 21; Platt v. The Penna. Co., 43 Ohio St., 228, 244; P., C. & St. L. R. R. Co. v. Hine, Adm'rx, 25 Ohio St. 629, 634; Moorhead et al. v. Little Miami R. R. Co., 17 Ohio, 340, 350; Endlich on Inter, of Stat., Secs. 22, 23; Rewis on Em. Dom., Sec., 254; 2 Dillon on Mun. Corp. (4th Ed.) Sec., 604; Cooley’s Con. Rim. pages 656 *530; Endlich on Int. of Stat., Sec. 354; 
      R. R. Co. v. R. R. Co., 36 Ohio St., 239; Ry. Co. v. Ry. Co., 65 Tex, 502, 505; New York v. The Ry. Co., 50 Barb, 285, 287; Hickok et al. v. Hine, 28 Ohio St, 523; Hatch v. Cincinnati & Indiana R. R. Co., 18 Ohio St, 92, 119: Housatonic R. R. Co. v. Lee & Hudson R. R. Co., 118 Mass, 391, 392; Mobile & Girard R. R. Co. v. Ala. Midland Ry. Co., 87 Ala. 501, 506; Boston & Maine R. R. Co. v. Lowell & Lawrence R. R. Co., 124 Mass, 368, 372; State ex rel. v. Ry. Co., 37 Ohio St, 157, 176; Pennsylvania Company's Appeal, 115 Pa. St, 514; Cincinnati, Sandusky & Cleveland R. R. Co. v. The Village of Belle Centre, 48 Ohio St, 273; Suburban Transit Co. v. New York, 28 N. E. Rep, 525; 128 N. Y, 510; Miami R. R. v. Dayton, 23 Ohio St, 510; Boston, etc., v. R. R. Co., 23 Pick, 360, 393; Horse Ry. v. Horse Ry., 81 Ill., 523; City of Bridgport v. The N. Y. & N. H. R. R. Co., 36 Conn, 255; New Jersey Southern R. R. Co. v. The Long Branch Comm'rs, 39 N. J. L., 28; Milwaukee & St. Paul Ry. Co. v. The City of Faribault, 23 Minn, 167; St. Paul Union Depot Co. v. City of St. Paul, 30 Minn, 359, 362; Pros. Pk. & C. I. R. R. Co. v. Williamson et al., 91 N. Y, 552; The Mayor of Atlanta v. The Central R. R. Co., 53 Ga, 120; Matter of Petition, etc., 99 N. Y, 12, 13; Revised Statutes of Ohio, Secs, 3440, 3441,3442; Chaffer's Appeal, 56 Mich, 244.
    The act is void for want of uncertainty. The act is so indefinite and uncertain that adequate compensation can not be assessed. McArthur v. Kelly, 5 Ohio, 143; Foote v. Cincinnati, 11 Ohio, 411; Lamb & McKee v. Lane, 4 Ohio St, 167; Sharer v. Starrett, 4 Ohio St, 495; Hendershot v. State, 44 Ohio St, 208; Cent. O. R. R. v. Holler, 7 Ohio St, 225; Watson's Ex'r v. Pleasant Twp., 21 Ohio St, 667.
    Any interpretation of this statute violates the constitutional rights of the owning company. R. R. Co. v. Holler, 7 Ohio St, 224 225; Lewis on Em. Dom, Sec,263; Toledo, etc. R. R. Co. v. R. R. Co., 62 Mich, 564, 570.
    There is no warrant in the statute for appropriating the right to use street railway tracks jointly and equally. Joy v. St. Louis, 138 U. S, 45.
    
      
      Frank H. Hurd, John F. Kumler, Orrville S. Brumback, and E. D. Potter, Jr., for defendant in error.
    For convenience the Act of April 11, 1890, can very properly be divided into two parts designated respectively “a” and “b,” as follows: a. The part that constituted the section before the amendment of 1890. b. The part that was added by the amendment of 1890.
    We submit that counsel for plaintiff entirely misapprehended, the scope and terms of this statute. The portion designated “a” is not to be eliminated and disregarded; it is as much a part of the act, as the portion designated “b.” The whole statute must be considered. Patton v. Sheriff of Pickaway Co., 2 Ohio, 396, 398; Lessee of Allen v. Parish, 3 Ohio, 187,193 ; State of Ohio v. Blake, 2 Ohio St., 147, 152; Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St., 308; State v. Zanesville & Maysville Turnpike Co., 16 Ohio St., 308, 320 ; Medical College v. Zeigler, 17 Ohio St., 52, 65; State v. McGregor, 44 Ohio St., 628, 631.
    Portion “a” of the act delegating the soverign power of eminent domain, is of uniform operation throughout the State. Boley v. Insurance Co., 12 Ohio St., 139, 144; Dutoit v. Doyle, 16 Ohio St., 400, 405; State v. Commissioners, 36 Ohio St., 326; States. Vanderbilt, 37 Ohio St., 640; Allen v. Russell, 39 Ohio St., 337; State v. Aitditor, 43 Ohio St., 311, 315; State v. Stockley, 45 Ohio St., 308, 309; Heck v. State, 44 Ohio St., 537; United States v. Bowen, 100 U. S., 508; Griffen v. Brooks, 3 C. C. Rep., 114; State v. Brewster, 44 Ohio St., 249, 253.
    That the “ a ” portion of the act delegates sovereign power, would seem to have been the view of this court in the case of Kinsman St. R. R. Co. v. Broadway, etc., R. R. Co., 36 Ohio St., 239, 252.
    Such a right of eminent domain conferred upon street railroad companies, is not without precedent in other states, and under it the use of street railway tracks has been appropriated. Sixth Avenue R. R. Co. v. Kerr, 45 Barb., 138 S. C., 72 N. Y. 330; Metropolitan R. R. Co. v. Highland Street R. R. Co., 118 Mass., 290 ; Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen, 202; Union Passenger Railway Co., v. 
      Continental Ry., 11 Phila. Rep., 321; Jersey City & Bergen R. R. Co. v. Jersey City & Hoboken, 20 N. J. Eq., 61.
    Portion “ b ” of tbe act operates as a restriction upon tbe ■exercise of power delegated by portion “a” of the act.
    A determination that portion “a” of the act in controversy, confers the power of eminent domain for all the ■street railways in the state, substantially disposes of the •claims of plaintiffs that the act is unconstitutional because ■of being special and not of uniform operation in the state; and defendant is, and was, fully authorized to exercise the power of eminent domain ¡to obtain the use of existing ■street railway tracks in the city of Toledo, unless there is ■something in portion “ b ” of the act taking away the power from the defendant. Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St., 308, 320.
    If part “b” of the act is unconstitutional, it does not affect the other part. Cincinnati v. Bryson, 15 Ohio, 625 645 ; Exchange Bank v. Hines, 3 Ohio St., 1, 34; State v. Dombaugh, 20 Ohio St., 167; Railroad Company v. Commissioners, 31 Ohio St., 338, 344; Gibbons v.. Catholic Institute, 34 Ohio St., 289; Bowles v. State, 37 Ohio St., 35, 44; State v. Frame, 39 Ohio St., 411; People v. Briggs, 50 N. Y., 553; In re Middletown, 82 N. Y., 196.
    If the “b” portion of the act confers corporate power it is general and of uniform operation. State v. Pugh, 43 Ohio St., 98; State ex. rel. v. Hawkins, 44 Ohio St., 108; State v. Smith, 48 Ohio St., 211; State v. Ellet, 47 Ohio St., 90; Marmet v. State, 45 Ohio St., 66; State v. Anderson, 44 Ohio St., 247; Ohio v. Covington, 29 Ohio St., 110; McGill v. State, 34 Ohio St., 228; State v. Powers, 38 Ohio St., 54; Bronson v. Oberlin, 41 Ohio St., 476; State v. The Judges, 21 Ohio St., 11; State v. Hipp; 38 Ohio St., 199; State v. City of Toledo, 48 Ohio St., 112.
    A law applicable to all corporations of a certain kind in •cities of a certain class, is of uniform operation. Kinsman Street R. R. Co. v. Broadway, etc., R. R. Co., 36 Ohio St., 239, 250; Adolph v. Central Park, etc., R. R. Co., 76 N. Y., 530, 535; Middlesex R. R. Co. v. Wakefield, 103 Mass., 261; Jersey City and Bergen R. R. Co. v. Jersey City and 
      
      Hoboken R. R. Co., 20 N. J. Eq., 61; Citizens’ Coach Co. v. Camden Horse R. R. Co., 33 N. J. Eq., 281; Shea v. Portrero and Bay View R. R. Co., 44 Cal. 414; Morawitz Priv. Corp., Sec. 445, note 1st Ed.; State v. Brewster, 39 Ohio St., 653; Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St., 308; 6 Am. & Eng. Ency. of Raw, 512 et seq.; Cooley’s Const. Rim., 524; State v. City of Toledo, 48 Ohio St., 112; Gordon v. State, 46 Ohio St., 628; Chicago, Burlington & Quincy R. R. Co. v. Cutts, 94 U. S., 155; State v. Butts, 31 Kan., 537; Sutherland on Stat. Const. Sec. 127; Appeal of Ayars, 122 Pa. St., 266; People v. New York Electric Lines Co., 107 N. Y., 593; In matter New York El. R. R. Co., 70 N. Y., 327; In matter of Church, 92 N. Y., 1; Skinner v. Collector, 42 N. J. R., 407; Hanlon v. Commissioners, 53 Ind., 123; State v. Reitz, 62 Ind., 159; Rutgers v. New Brunswick, 42 N. J. R., 51; Hart v. Murray, 26 Law Bul., 327; State v. Commissioners, 35 Ohio St., 458; State v. Judges, 21 Ohio St., 1; State v. Covington, 29 Ohio St., 102, 111; Cricket v. State, 18 Ohio St., 9, 22; McGill v. State, 34 Ohio St., 228, 270; Trustees v. Miner, 26 Ohio St., 452, 458; State ex rel. v. Shearer, 46 Ohio St., 275.
    The question of the power to exercise eminent domain over property already devoted to a public use is no new one in Ohio, and the rules applicable to such case are well settled and easily understood. Railroad Co. v. Village of Belle Center, 48 Ohio St., 273; Railway Co. v. Railway Co., 30 Ohio St., 604.
    Neither does the interference with the business of the old company cut any figure in the case. The senior company took its charter and rights subject to just such interference when the contingency became necessary, as is clearly laid down in the case above cited. Railway Co. v. Railway Co., 30 Ohio St., 623.
    The joint and equal use of the track is the property taken. Railroad Co. v. Village of Belle Centre, 48 Ohio St., 294; Lewis on Em. Dom., Secs. 278, 279, 280; Lockie v. Mutual Union Telegraph Co., 103 Ill., 401; Giesy v. Railroad Co., 4 Ohio St., 308.
    
      The terms of the act are as applicable to and include any person, persons or company who hereafter, at any time during the life of the act, obtain the right to build and operate a street railway, as they are to the tracks in existence' at the time the act is passed.
    The act of 1890 is not unconstitutional and void because of uncertainty. New York & Hudson River R. R. Co. v. Kip, 46 N. Y., 546; Sixth Avemie R. R. Co. v. Kerr, 72 N. Y., 330; Toledo & Wabash Ry. Co. v. Daniels, 16 Ohio St., 390; Omaha Horse Railway Co. v. Cable Tramway Co., 30 Fed. Rep., 327; Philadelphia Union Pass. Ry. Co. v. Phila., 101 U. S., 528; Philadelphia, etc., Passenger Ry. Co., Appeal, 102 Pa. St., 123; Little Miami Railroad Co. v. Dayton, 23 Ohio St., 510.
    The provisions of a statute ought to receive such reasonable construction, if the words and subject matter will admit of it, as that the existing rights of the public or of individuals be not infringed. Lessee of Moore v. Vance, 1 Ohio, 12; Ireland v. Turnpike Co., 19. Ohio St., 369; Burt v. Rattle, 31 OhioSt., 116; State v. Hamilton, 47 Ohio St., 86; McCormick v. Alexander, 2 Ohio, 65, 75; C., W. & Z. R. R. Co. v. Clinton County, 1 Ohio St., 77, 81; Goshen v. Purcell, 11 Ohio St., 641; State v. Cincinnati, 20 Ohio St., 18, 33; Gilpin v. Williams, 25 Ohio St., 283, 294; Western Union Telegraph Co. v. Mayor, 28 Ohio St., 521, 540; State v. Hipp, 38 Ohio St., 219.
   Williams, J.

The Toledo Consolidated Street Railway Company was incorporated in this state, in 1884, having authority to acquire, construct, and operate lines of street railway in the city of Toledo. There were then several street railwaj^ companies, each operating a railway by means of horse cars, in that city. They transferred their property and franchises to 'the above-named companjq •which obtained a grant from the common council to reconstruct and extend the tracks, and operate the railways, subject to the conditions in the ordinance, one of which was, that if the company should fail to comply with any of the provisions of the ordinances then or thereafter in force, prescribing regulations for the operation of street railways, the rights granted to the company should terminate.

The Toledo Electric Street Railway Company was incorporated in this state, in 1889, and obtained from the common council, by ordinance duly passed, a grant authorizing it to construct and maintain lines of electric railway in the city, including the right to use designated portions of the Consolidated Company’s tracks in certain streets, not exceeding in length one-eighth of the distance between the termini of the grantee’s route as constructed and operated. The two companies being unable to agree upon the terms, under which these tracks should be so used, or the compensation to be paid therefor, the defendant in error instituted proceedings in the probate court of Eucas county, to appropriate the tracks to its use in accordance with the grant made by the council, and for the assessment of the compensation due the plaintiff in error therefor. Another proceeding was also instituted in the probate court, by which, upon a similar state of facts, the appropriation, in like manner, of other portions of the Consolidated Company’s tracks was sought. The authority of the defendant in error to maintain such a proceeding was challenged in various ways, but the objections were not sustained. A jury was impaneled, the amount of the compensation assessed by it was paid into court, and, after the final judgment of the probate court in its favor, the defendant in error entered upon the use of the tracks. The judgment of the probate court having been affirmed by the court of common pleas, and that of the common pleas by the circuit court, error is prosecuted here.

An action to enjoin the prosecution of the two appropriation proceedings, and another, to restrain the execution of the judgments rendered therein, were commenced by the Consolidated Company, in the court of common pleas, and thence appealed to the circuit court, where they were decided adversly to the plaintiff, who thereupon brought the cases here on error. There has also been filed in this court a petition in Quo Warranto, on the relation' of the attorney-general, in which it is alleged, that doubts exist as to the right of the defendant to have or maintain the appropriation proceedings referred to, and it is asked to show by what warrant it has exercised those privileges and franchises. These cases were all argued and submitted together. The question raised by them, is whether the appropriation proceedings instituted in the probate court were authorized by law. The authority, if it exists, must be derived, as counsel concede, from sections 3438, and 3440, of the Revised Statutes. The latter section was amended April the 11th, 1890 (87 Ohio Raws, 178), and in its amended form is as follows:

“ Sec. 3440. When the council or commissioners make such grant, the company or person to whom the grant is made, may appropriate any property necessary therefor when the owner fails to expressly waive his claim to damages by reason of the construction and operation of the railway. And in any city of the third grade of the first class a?iy person, persons or coinpany which is authorized to constmct and operate, and has constructed and is operating a street railway, may appropriate any property necessary for the purpose of occupying and using under section 8Jf88 any existing street railway track or tracks subject to the limitation of said section and jor not more than one-eighth of the entire distance between the termini of the route as actually constructed, operated and run over, of the appropriating compa7iy or person-at the time appropriation proceedings are begun, such appropriation to be made in the mode and manner provided for the appropriation of property in part third, title 2, chapter 8, of the Revised Statutes

The provisions printed in italics constitute the amendment made by the act of April 11, 1890, which took effect previous to the commencement of the proceedings in the probate court. The other part of the section has been in force since the revision of the statutes, of 1880.

The arguments of counsel for the plaintiff in error are directed mainly to the proposition, that the addition made to the section by the amendatory act is unconstitutional; being, they contend, in conflict with section 1, of article 13, of the constitution, which prohibits the conferring of corporate power by special act, and with section 26, of article 2, which requires that laws of a general nature shall have uniform operation throughout the state, and also, with section 19, of article 1, which guarantees the inviolability of private property except for the public use. On the other hand, counsel for the defendant in error maintain that the amendment is obnoxious to neither of the constitutional provisions referred to, and, furthermore, if it should be held to be, authority is nevertheless found in the original section, without the aid of the amendment, for the appropriation proceedings which the defendant in error prosecuted in the probate court; and whether or not such authority is so conferred, is the first inquiry demanding consideration. That the provisions of the original section are so distinct and separable from those of the amendment, that the former, being constitutional may stand, though the latter be unconstitutional, is not questioned; nor, is it claimed that the former are in controvention of the constitution; so that, the real question here presented is, whether the provisions of the original section authorize one street railway company to appropriate to its use the tracks of another company, subject to the restrictions contained in section 3438, of the Revised Statutes. In arriving at a decision of the question it becomes necessary to consider the two sections together.

By the first clause of section 3438, the power is conferred, in general terms; on the councils of municipal corporations, to grant, by ordinance, to street railway companies, the right to construct their railwaj^s within, and bejmnd, the limits of the municipality. The proviso contained in the section places a limitation upon the exercise of the power, to the effect that authority shall not be granted “to occupy the track, whether single or double, or other structure, of any existing street railway for more than one-eighth of the entire distance between the termini of the route” of the company to which the grant is made. The power of the municipal authorities, within the limitations imposed by the proviso, to grant to a street railway company the right to occupy the tracks or other structures of a street railway existing in the municipality at the time of the grant, cannot be doubted. But such grant does not, of itself, confer upon the grantee the right to enter upon the occupancy of the tracks or structures. The owning company has a private property in them and their use, though devoted to a public purpose, of which it cannot be deprived without its consent, except by an authorized appropriation in which it is entitled to have compensation therefor assessed by a jury. So that, to make effective the grant of the municipal authorities to one company to occupy the tracks or structures of another, it becomes necessary to obtain the consent of, or waiver of damages by, the owner; or, if that cannot be done, then to appropriate the tracks or structures to such use by judicial proceedings, in which compensation may be assessed. Railroad Co. v. Railroad Co., 36 Ohio St.. 239. By the terms of the original section 3440, the company “ to whom the grant is- made may appropriate any property necessary therefor, when the owner fails to expressly waive his claim to damages by reason of the construction and operation of the railway.” The authority of the company to appropriate, appears to be as comprehensive as the authority of the municipality to make the grant, and includes the right to appropriate any property, of whatever nature, necessary to render the grant effective. Section 3438, was in force with section 3440, before the passage of the amendatory act of 1890; and unless the right granted under the former section to one street railway company to use the existing tracks and structures of another company could be enforced by appropriation proceedings, the power to máke the grant would be futile, for it could, in every instance, be defeated by the refusal of the owner to consent to such use, or come to an agreement concerning the damages;, a result evidently not intended by the legislature. The terms of the statute prior to the amendment are broad enough to authorize the appropriation sought by the defendant in error, and it is not apparent why their general purport should be restrained. The context does not require it. True, the section prescribes no method of procedure for the accomplishment of the appropriation, nor expressly refers to any; but there can be no objection to conducting the proceeding, as was done in these cases, under chapter 8 of title 2 of part third, of the Revised Statutes, That chapter, which provides the mode of procedure for the appropriation of private property by corporations, is part of the general system of laws enacted in the Revision of 1880, of which original section 3440, is also a part. The first section of the chapter, section 6414, provides, that “appropriations of private property by corporations must be made according to the provisions of this chapter.” The chapter is as applicable to appropriations under section 3440, as if made so by express reference to it in the section.

This view of the cases renders it unnecessary to pass upon the constitutional^ of the provisions added to the section by the amendatory act of 1890. If unconstitutional, they were not essential to the validity of the proceedings below; and if constitutional, the proceedings were in conformity with them.

It is further claimed b3r the plaintiff in error, that the appropriation was unwarranted because it practically defeated the public use to which the property appropriated was already devoted. If that was the effect of the appropriation, it is clear it could not be made, unless the power to make it was granted'expressly, or by necessary implication. Railroad Company v. Belle Center, 48 Ohio St., 273. But, as has been shown, the power to make the appropriation was so granted. Besides, our legislation clearly contemplates that two street railways may be operated in the same municipal corporation at the same time, and in part, over the same tracks; and also, that such use may not only be practicable, but entirely consistent with the purpose for which the tracks were originally constructed, and the right to construct them obtained; and we see no reason why it may not. The ground upon which such railways are permitted to occupy the public streets is, that they facilitate the legitimate uses of the streets by the public; and the common use of a track by two companies, in certain streets, rather than the use of separate tracks by them, may materially promote the convenience and enhance the safety of the public in the use of streets. Municipal authorities are, as we have seen, clothed with power to grant the right to make such common use of the tracks of a street railway by two companies, to a limited extent. And though the use by the owner company may be less convenient than before, and require greater care, and the inconvenience and care be increased when the companies employ different agencies and appliances for propelling their cars, that falls short of rendering the common use wholly inconsistent with the purposes of the original appropriation of the owning company, or of exclusion from its franchise, or property in the tracks, or of superseding or destroying the public use in which they were employed. For the injury done, compensation must be made; and the inconvenience, as in many like cases, must be borne for the public good. Ample power is vested in the common council of Toledo to prescribe by ordinance, from time to time, such reasonable regulations for the use, by the companies, of the tracks appropriated in the cases below, as may be necessary for the protection of both companies, and the public. The power reserved in the ordinance by which the plaintiff in error obtained its grant, is adequate for that purpose; and if the council fail to make such regulations, the rights of the parties may be enforced in the courts.

■ Other matters discussed have received our consideration, but need not be further noticed in the report.

After these cases were decided, the decision announced, and-the opinion prepared, it was suggested that a question in regard to the measure of the compensation involved in the appropriation cases had not been argued, and opportunity to argue the same requested, which the court has concluded to allow.

The judgments in the injunction cases are affirmed. In the Quo Warranto case, judgment will be entered for the defendant. And final judgment in the appropriation cases will be deferred until the question respecting the amount of compensation shall be disposed of.

Judgment accordingly.  