
    (Court of Common Pleas of Butler County.)
    THE CITY OF HAMILTON by Ed. H. Jones City Solicitor, v. THE C. & H. ELEC. ST. R. R. CO.
    (1) . Where a city has granted a street railroad corporation the right to construct and operate its railroad over certain streets, it will not be permitted, in an action to have the grant declared invalid and the company perpetually enjoined from constructing its road, brought by the city through its solicitor under sec. 1777, Rev. Stat., where no fraud, .bad faith or collusion is charged, to inquire as to whether the necessary numoer of consents had been procured as required by sec. 2502, Rev. Stat., for the purpose oii invalidating the grant.
    (2) . It is not necessary under sec. 2502, to the validity of such grant that notice, of a preliminary ordinance establishing a street railroad route,be given. The notice required under such section is of the application for permission to construct a road over certain streets, and where such notice is“given before the final grant is made the grant, on the absence of fraud, would be valid.
    (3) . The act of May 17, 1894, O. L. 91, p. 285, does not modify, limit or repeal secs. 3437 & 3438, Rev. Stat., nor define a different kind of street railroad. A street railroad corporation having a charter -to construct a street railroad within and without a city or village, may, under a grant from the city or village, build its line in and through the city or village.
   FISHER, J.

This is an action brought under section 1777 of the Revised Statutes of Ohio by the city solicitor of Hamilton, on behalf of the city of Hamilton, against the defendant railroad company to perpetually enjoin the defendant from constructing its street railroad upon certain streets of the city of Hamilton, as provided under a grant made by the city to the defendant by ordinance passed by the common council of said city 'July 23, 1897, on the ground that the grant is void.

The cause was heard upon the merits aDd submitted to the court upon the pleadings and evidence.

The court need not repeat the pleadings, as the issues made are fixed in the minds of counsel. The points made by the plaintiff are briefly these:

1st. There was no notice given of the ordinance establishing the route.

2nd. There was no notice or advertisement for bids as required by law.

3rd. There was not filed before said council, nor did defendant have the written consents of a majority of the property owners as represented by the feet front upon each street or part thereof along which it is proposed to build the road.

4th. That the charter of defendant having been granted under the act of May 17, 1894, O. L. 91, p. '285, defendant has no power or authority to construct a road in the city of Hamilton.

It is claimed by the plaintiff that the first, second and third objections are jurisdictional, and having not been dQne, the council was without jurisdiction when they passed the ordinance of July 23, 1897, and hence the ordinance is absolutely void, and defendant is without color of right.

I will not enter lengthily into a 'discussion, of the several propositions, but will content myself with stating my views of the law upon the several points raised.

It is admitted that a proper application was filed May 4, 1897, by defendtn; it is further admitted that on the same day, May 4th, a resolution or ordinance, was passed by the council establishing route No. 4 in Hamilton; it is further admitted, although no mention is made, that Route No. 4 is the same as that asked in defendant’s application ; it is further admitted that on May 8, 17 and 22, 1897, there was published in the Butler county Democrat, a propef notice of ■the application to the city council by the defendant for permission to construct and ■operate a street R. R. over certain streets named.

It is further admitted that notice of proposal to receive sealed bids by the council, for the construction of the road, and the rate of fare to be charged passengers, was published in the Hamilton Daily News, May 21, 28, June 5. and 11, 1897. Bids to be received up till Tuesday noon of June ■.22, 1897.

It is further admitted that defendant’s was the only bid ; it is further admitted that the consents were filed July 20, 1897, and it is further admitted that the ordinance grant ing the permission was passed July 23. 1897, and its terms and conditions accepted by the defendant.

There is no charge of fraud, unfair dealing or intentional wrong; this is expressly denied by counsel for the city. The city depends upon its naked legal rights.

It is contended that under secs. 2501 & 2502, notice of the intention of council to ostablish a street railroad route is necessary before the adoption of such a resolution, and failure to give such notice is jurisdictional; and such resolution would !be void, and any proceedings based, or following upon it.

There was in this case no such notice. I-am of the opinion the law does not require such notice, or such a distinct resolution.

Such a resolution may be eminently proper, but as in this case — what information does it give that the defendant has applied for the permission to build a road over the route proposed in the resolution? No mention is made in the resolution of the application. In fact every material thing contained in the application, is contained, of necessity, in the final ordinance granting the permission and defining the route. I hold that such resolution and notice, either or both, are not necesary to a valid final grant. Sec. 2502 says “No ordinance for the purpose specified in said preceding section should be passed.” What purpose? Clearly, as stated in the preceding section, the permission to some one to build the road. The section expressly says that “the notice must be of the application.” No other notice is mentioned cr required.

Notice of the application of the defendant, it is admitted, was given properly before the adoption of the ordinance making the grant.

Advertisement for bids was properly made, although strictly there is no statute requiring it. Such advertisement'did not depend upon the notice or resolution fixing the. route. In th.e opinion of the court, in this kind of a case, where no fraud or unfair dealings are charged, and the city alone is complaining, it is sufficient if it appear, that at any time before the passage of the final ordinance making the grant there were before the council the consents and bids, and that council acted upon them. The city cannot complain of its irregularities, provided, at the time of the passage of the final grant, all the steps necessary to jurisdiction had been taken. By its act in adopting the ordinance it waived such irregularities.

As to the question of “consents

I am of the opinion, and so hold that, in this suit, the city has no right to complain that the grant is invalid, because of a failure to secure the necessary consents.

The city, or city solicitor, under section 1777, is confined to matters involving “the misapplication of funds — the abuse of corporate power, or the execution or.performance of any contract made m behalf of the corporation in contravention of the laws or ordinances governing the same,or. which was procured by fraud or corruption.”

Section 2502. requiring consents of abutting owners, does not give the power to the city to grant to a street railroad company the right to occupy the streets of a muncipality. Such power existed in the municipality before this statute, independent of the consents.

The limitation in section 2502 “to object” is a personal privilege given to abutting owners upon the particular street over which it is proposed to lay the tracks, and it is a privilege which they alone can exercise.

The evident object of the statute requir. ing consents, is to protect the owners of property on the streets named in the application; it .is a statutory privilege which such persons enjoy over the general public.

In this suit the city represents the general public, the general taxpayers, and it cannot now, after making the grant or contract with the defendant, have such grant declared void by invoking a right which those, enjoying the right, do not seek to invoke, and with which it has no concern.

It has been repeatedly held that a taxpayer beginning such a suit under see. 1778, where the city solicitor refuses, has no right ■to complain of the want of consents. No persons, save abutting lot owners, are interested in that matter.

Summons v. City of Toledo et al, 5 C. C., 324-45; Sloan v. Peoples E. R. Co., 7 C. C., 84-90; Roberts v. Easton, 19 Ohio St.,78; Neave v. Mt. Auburn S. R. Co., 29 Bull., 171-2.

The doctrine announced by the circuit courts has been affirmed in the above cases, without report,by our supreme ourt.

If a taxpayer cannot raise the question of consents “a fortiori” the city itself cannot.

But even if this was not the rule of law, and the city had the right to contest the consents, no abutting owner complaining, the burden of proof is on the plaintiff to show want of consent. This, the plaintiff has failed to make out by satisfactory proof in the cases which would affect the majority.

It does not appear that the St. Mary’s Institute did not authorize the- president and secretary to sign the consent. It is signed “St. Marys’ Institute” by president and secretary, and the corporation by no one is objecting. The same is true of the Foss estate. The proof, if admissible, fails to satisfy the court of the want of consent. The conditional signing, that is, “time of commencing and completing the road attached to a consent,” is not a limitation upon the council in accepting or acting upon the consent. The consent isas to the additional use or burden in the street, the condition as to time of commencing and completing the road must be worked out by the owner and the grantee.

Has this road the right under its charter to enter the city of Hamilton by building its line into or through the city?

It is maintained by the plaintiff that it has no such right and that the only way it can get into Hamilton is by traffic arrangement with the existing street railroad now in operation in the city. Sec. 4 of act May 17, ’94, vol, 91 O. L., p. 285.

A proper solution of this question is not without its difficulty, arising from ambiguous and conflicting statutes, which apparently deSne three classes of street railroads, each depending for its construction upon a distinct statute, or line if legisJation.

The court recognizes, that theie is some conflict of authority upon this question, opinion of attorney general, 39, Bull., 13-15, but as yst there has been no judicial construction given to these several statutes by our circuit or supreme courts.

The court also recognizes the force of the argument, that there is and should be a distinction between an “interurban” street railroad, which transports passengers between cities and villages, and the ordinary street railroad, contined to the streets of a municipality. Button a careful examination the court is of the opinion that the distinction is without a difference under our statutes.

Both are street railroads — whether within or without a municipality. They are denominated street railroads because they are constructed upon the public, highways by grant from the agents of the' public acting umder legislative authority.

Each statutory provision as found in sec, 2501 et seq. and sec. 3437 et seq. and in the act of May 17, 1894, O. L., 91 p. 285, recognizes them as “street railroads.”

The highways, whether within or without a municipality, are granted to the public at large, and are under legislative control,and it is the recognized doctrine of this state (Street Railroad v. Cumminsville, 14 Ohio St., 523) that the use of a highway for the purpose of a street railroad, is not a use of the higwhay for a purpose different front that for which it was granted ; that such use facilitated travel and transportation rather than hindered it by adding a new mode to the original modes in which the highway was used in furtherance of the same general object.

By sec. 2501 to 2502 municipalities were authorized by the legislature to make such grants, by sec. 3437 to 3439 the authority was extended to county commissioners to make such grants over the public roads, and I am of the opinion that the act of May 17, 1894, O. L 91, p. 28 adds nothing to this power, nor does it define any new kind of street railroad, nor does it in any way limit the power of the council of a municipal corporation to grant to a company,having a charter therefor, the use of the streets although part of its road is without.

These statutes must be construed together and harmonized if possible. Sec. 3437, provides that a street iailroad “may be constructed or expended within or without or partly within and partly without any municipal corporation, etc.” This gives authority, certainly to build, if such authority is needed, outside and inside, of a municipal corporation, to any company organized for that purpose. Sec. 3438, provides that the. grant to construct the road within the corporation must be made by the council, and the grant to construct it without must be made by the county commissioners, but both may be made to the same person or company.

No limit is placed upon the distance it may be constructed without; and it must be conceded that such limit is co-extensive with the jurisdiction of the commissioners..

These sections provide for the construction of street railroads outside of municipalities and that is all sec. 1, of the act of May 17, 1894, provides. Section 6, of same act provides that such companies shall be subject to the same regulations now provided for “street railroads”, etc.

Ed. H. Jones, City Solicitor and Millikin, Shots & Millikin, for Plaintiff.

W. S. Giffin and Dick Sheppard, for Defendant.

After a most careful study of those statutes I fail to discover that the act of May 17, 1894, discloses any different kind of street railroad from that described in sec. 3437 et-seq., and I find nothing in the act that leads me to the conclusion that the legislature intended to repeal, modify or limit the operation of sec’s. 3437 and 3438.

It is claimed that this limitation is found in sec. 4, of the act of May 17, 1894, which provides for a traffic arrangement with existing companies.

I do not agree with counsel; this may in some sense enlarge the rights of a road built wholly without a municipal corporation, but it would not prevent a road under a proper charter from building into the city.

If plaintiff’s contention be true, then if there existed n i street railroad in the city, the company would have to set down at the corporation line and wait till some good Samaritan came along with a road.

T am of the opinion that under secs. 3437 & 3438, a charter may be granted to a street railroad company to build its road within and without a city, and I find that the charter under which the defendant is constructing its road authorizes it to build its road within the city of Hamilton under the grant made it by the city July 23, 1897. •

Having reached the conclusions indicated in this opinion, the temporary restraining injunction will be dissolved and the petition of the plaintiff dismissed-at its cost.  