
    EXTENSIONS OF STREET RAILWAYS.
    [Circuit Court of Cuyahoga County.]
    John F. Belle v. The City of Glenville and The Cleveland Electric Railway Company.
    Decided, November 28, 1904.
    
      Street Railways — Validity of Grant by County Commissioners — Not Affected by Annexation to City — Extension may be at Right Angles to Original Route — Motive Power Specified in Original Grant and Grant for Extension — Subject of Ordinance as Expressed in Title — Period Covered by Extended Grant — Extension of Route, and Extension of Track of Road Already Laid, Distinguished.
    
    1. The validity of a grant for a street railway route made by county commissioners through unincorporated territory is not affected by the subsequent annexation of such territory to a municipality.
    2. A grant may be made for an extension of a street railway route, where the extension is to be built at right angles to the original route and form a cross-town line.
    3. Where the original grant provided that the motive power should be horses or mules, but the line has been operated for many years by electricity, the grant for the extension is not rendered invalid by reason of the fact that electricity is specified as the motive power.
    4. Where the subject-matter of an ordinance, as expressed in the title, is the extension of a certain street railway, there is no violation of Section 1694 by reason of the fact that provision is made for the construction of a street railway, the repeal of portions of certain ordinances, the revival or reaffirmance of a portion of another ordinance, and an amendment of still another ordinance.
    5. A grant for an extension of a street railway' route for a period of less than twenty-five years is not obnoxious to Section 1536-185, by reason of the fact that the period named in the original grant will expire long before that named in the grant for the extension.
    6. The provision in Section 1536-189, providing for public notice in one or more daily newspapers of the pendency of a resolution or ordinance relating to changes in a street railroad route or a revision of the system of transfers, has reference to the extension of the track of a road already laid, and is- not applicable to the extension of a street railway route.
    
      Marvin, J. ■ Hade, J., and Winch, J., concur.
    Appeal by plaintiff.
   Suit is brought by the plaintiff to enjoin the City of Glen-ville and its officers and the Cleveland Electric Railway Company, which is a street railroad corporation, from taking any steys toward the construction or operation of a street railroad in Doan street in said city. Plaintiff is a taxpayer of said city and owns real estate therein, having a frontage on that part of said Doan street along which he alleges said railroad company is about to construct and operate a street railroad, and which it will construct and operate unless enjoined by the court. Plaintiff, before bringing this suit, requested the solicitor of said city to bring the same, which he refused to do.

The railroad company claim the right to construct and operate such railroad as an extension of its St. Clair street railroad line, so-called, now operated by it in said city, by virtue of an ordinance passed by the council of said city on the 29th day of June, 1903. Said ordinance provides, among other things, as follows:

“An ordinance authorizing the Cleveland City Railway Company to extend the present system of double-track street electric railway now in operation upon St. Clair street, in the city of Glenville, from St. Clair street, southerly, to the southerly limits of the city of Glenville, and from St. Clair street, northerly, to the right of way of the Labe Shore & Michigan Southern Railway Company.
“Whereas, heretofore, on the 15th day of June, 1902, the council of the village of Glenville passed an ordinance, entitled ‘ An ordinance authorizing the Cleveland City Railway Company to extend its present system of double track electric street railway on St. Clair street, from the present terminus of its tracks to the easterly limits of the village of Glenville, and on Doan street from its' tracks on St. Clair street south to the southerly limits of the village of Glenville, and to extend the present franchise of said company;’ and
“Whereas, said ordinance was duly accepted by the Cleveland City Railway Company, and it has begun the construction of its tracks and their appliances in pursuance of the terms of' said ordinance; and,
“Whereas, litigation has been instituted by one of the property owners upon Doan street, attacking the validity of said ordinance, so far as it grants the right to an extehtion to said railway company on Doan streét, which litigation is still pending, and by reason of which the construction of the line upon Doan street is being delayed; and,
“Whereas, The Cleveland City Railway Company has filed with the clerk of the city the written consents of more than cne-half of the property owners upon that portion of Doan street, between the southerly line of the Lake Shore & Michigan Southern Railway Company’s right of way and the southerly limits of the city of Glenville, to the construction and operation of such street railroad, thereon; and,
“Whereas, the city council of the city of Glenville hereby finds and determines that more than one-half of the property owners upon that portion of Doan street upon which an extension is authorized by this ordinance, having given their written consent to the construction and operation of a street railroad thereon; now, therefore,
“Be it Ordained by the council of the city of Glenville, three-fourths of all members of said council concuring:
“Section 1. That the Cleveland City Railway Company, upon the terms, conditions and agreements hereinafter contained and not otherwise, be, and the same is, authorized to extend, construct, maintain, and operate by electricity, its line of double track street railway in the city of Glenville, with the necessary poles, wires, switches and appurtenances, upon Doan street, from St. Clair street southerly to the southerly limits of the city of Glenville, and from St. Clair street northerly to the right of way of the Lake Shore & Michigan Southern Railway Company; said extension in Doan street to be constructed and operated as one entire extension of the present line of said company in said city, and as a cross-town line.
“Sec. 13. The right herein granted shall be and remain in force until June 18, 1927.”

The Cleveland- Electric Railway Company is the successor of the Cleveland City Railway Company, named in said ordinance, and is entitled to whatever right under said1 ordinance said Cleveland City Railway Company would have been entitled to but for the assignment of its rights to said Cleveland Electric Railway Company.

It is urged, however, by the plaintiff that no rights were acquired by any party to construct and operate such railroad under said ordinance.

The grounds upon which this cláim is based are that the line of railroad operated on St. Clair street at and prior to the time of the passage of said ordinance was being so operated without any lawful authority, because the same was constructed as an extension into the city, then village of Glenville, of a line of railroad then owned and operated by a predecessor of the Cleveland City Railway Company.

The village of Glenville immediately adjoins the city of Cleveland on the east. The first line of road constructed as a part of the St. Clair street line was so done by authority of an ordinance passed by the city of Cleveland many years ago, and the line so built extended easterly along said street to Willson avenue, which was then the east line of the city of Cleveland.

Under a franchise granted by the commissioners of Cuyahoga county a line of road was built by the company owning the St. Clair street line, which was a continuation of said original St. Cl'air street road, from said east line of the city to a point which is now within the city of Glenville, and was thereafter known as a part of said line.

When this line east of Willson avenue was built, the road over which the line ran was outside of any municipal corporation. Later, a part of the territory, including this part of said road, was annexed to and became a part of the city of Cleveland and the road was thereafter a part of the St. Clair street line in said last named city. The claim is made on the part of the plaintiff that such annexation had the affect to deprive the company of the right to operate said line between Willson avenue and the west line of the then village of Glenville.

This contention is not sound. If the law is as claimed, every time the territorial limits of a municipality are extended so as to take in unincorporated territory, every street railroad operating under authority of .the municipality to the extent that its lines are within the municipality, and under authority of the county commissioners, so far as its lines are without the municipality, would have its property rights taken away by simply an annexation of such unincorporated territory to the municipality. This is against reason, and would perpetrate such a wrong upon street railroad companies as can not be tolerated by the law.

It has already been said that Glenville immediately adjoins the city of Cleveland on the east. This, of course, was not true at the time the line was built over the unincorporated territory-east from Willson avenue. So that we hold that after the annexation of the unincorporated territory already mentioned, the railroad company lawfully owned and operated the St. Clair street line easterly from Willson avenue.

On the 20th of March, 1890, the council of Glenville passed an ordinance in terms authorizing the street railroad company to extend its line from its then eastern terminus easterly along St. Clair street in Glenville to the Coit or Eddy road, a long way east of Doan street, and shortly thereafter the road was so extended and has ever since been operated as a part of the St. Clair street line of said railroad company throughout its entire length.

The railroad company claim the right to make the extension now sought to be made by virtue of old Section 2505, now Section 1536-188, Revised Statutes, which reads:

‘ ‘ The council of any city or village may grant permission, by ordinance, to any corporation * * * owning or having the right to construct any street railroad to extend their track, subject to the provisions of Section 3437, 3438, 3439, 3440, 3441, 3442 and 3443 on any street or streets where council may deem such extension beneficial to the public,” etc.

Old Section 3438, now Section 1536-183, Revised Statutes, provides that:

“No extension of any street railroad located wholly without any such city, or of any street railroad wherever located, which has been or shall be built in pursuance of a right obtained from any source or authority other than a municipal corporation, shall be made within the limits of such city, except as a new route and subject to the provision of Section 2501 of the Revised Statutes of Ohio and Section 30 of this act.”

As has already been said, a part of the present St. Clair street line was built under authority granted by the county commissioners. It is urged, that, this being true, any extension of such line must be made under the provisions of the law regulating the construction of new line of road because it is said there is a part here of the iine sought to be extended, the authority to construct which was obtained from another source than a municipal corporation. As has already been said, this line on St. Clair street throughout its entire extent has been owned and operated by the predecessors of the Cleveland Electric Railway Company for more than twelve years, and its last extension was granted by ordinance of the council of Glenville in 1890. That extension is the one which was made over a line, part of which was built under authority other than that of a municipal corporation, but for the whole time since 1890 this extended line has been operated without interference on the part of the plaintiff or the village of Glenville.

The authority provided in Section 1536-188, Revised Statutes, is to any corporation or individual “owning or having the right to construct any street railroad.’’ We think the street railroad company here comes within the terms of this statute and that the city of Glenville can not now be heard to complain that the extension made in 1890 was invalid for the reason suggested; and if the city of Glenville can not be heard, then this plaintiff can not be heard to make such complaint.

Doan street runs north and south and crosses St. Clair street nearly at right angles at a point east of the west line of Glen-ville, about one-third of the distance between the east and west lines thereof and south of the Lake Shore & Michigan Southern track, about one-third of the distance to the south line of Glen-ville.

It is not claimed on the part of the railway company that it pursued the statutory method necessary to construct and operate an original street railroad, but only that it did those things necessary for the extension of the tracks of an already existing road.

. It is said, however, that the construction of a road across and at right angles with an already existing road can not in any proper sense be called an extension of the track of the original road, and it is said that this is emphasized by the language of the ordinance providing that “said extension in Doan street to be constructed and operated as one entire extension of the present line of said company in said city- and as a cross-town line.”

We do not understand that the language of the ordinance as to a cross-town line in any manner affects the question of whether the Doan street track can be considered as an extension of the St. Clair street track. To extend the track of a street railroad is not necessarily to continue such track in the same general direction as the original track. It' would seem as though there could be no doubt that if there was a point somewhere to the north of St. Clair street which it was important to the railroad company and to the public should be reached by the tracks of such road, the laying of track connections with the St. Clair street track to such point would properly be an extension of the track already laid; and perhaps, if the point to be reached had been so far east from Doan street as that the new track being connected with the St. Clair street track at Doan street would diverge at a very slight angle from the line of St. Clair street going east, it would be admitted that this might 'properly be called an extension of the St. Clair street track, and surely ■ the degree of the angle made in passing from the St. Clair street track onto the track laid as an extension can in no wise affect the question of whether such new track is an extension of the old. If this is true as to the north side of St. Clair street, it must be equally true as to the south side of St. Clair street, and a line of track running either northerly or southerly from the St. Clair street track might with propriety be designated as an extension of the St. Clair street track. If this be so, then a track running either way from St. Clair street along Doan street might be made as an extension of the St .Clair street track, and surely one extension having been made could be no bar to the making of the extension in the other direction, and it would be absurd to say that you might accomplish what was in terms authorized by this ordinance by making two extensions when it could not be done by making all as one extension. This is so held in the case of Louisa E. Aydelott v. City of Cincinnati, 8 C. C., 486, the fourth clause of the syllabus reading:

“The fact that at a certain point a street railroad route forks and becomes two diverging branches does not destroy the unity of the route and make it two diverse and different routes. ’ ’

In the case of The City of Cincinnati v. Cincinnati Street Ry. Co., 31 Bull., 308, the Superior Court of Cincinnati held:

“To constitute a valid extension within the meaning of the street railway regulation of this state, it is not necessary that the extension should begin at one of the termini, or run in the general direction of the original route.”

See also South Boston R. R. v. Middlesex R. R. Co., 121 Mass., 485.

We hold, therefore, that the proposed line of track along Doan street is properly an extension of the St. Clair street track.

It is urged, however, that the company’s rights to operate on St. Clair street, if it had any, was to operate as an extension of a line, the motive power of the cars of which should be horses or mules, and that, therefore, no extension of the track could be authorized with electricity as a motive power. The answer to this is that at the time application was made for this extension the railroad company owned and were operating a road along St. Clair street with electricity as a motive power, and that for more than ten years before the filing of the application for this extension the cars had been operated over this line with something other than horses and mules as the motive power.

It is urged further on the part of the plaintiff that the ordinance of June 29, 1903, is in violation of Section 1694 of the Revised Statutes, which provides:

“No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title, and no by-law or ordinance, or section thereof, shall be revived or amended, unless the new by-law or ordinance contain .the entire by-law or ordinance, or section revived or amended; and the by-law or ordinance, section or sections shall be repealed,” etc.

First, it is said that the ordinance legislates as to several subjects, to-wit, the construction of a railway, the repeal of portions of certain other ordinances, the revival or reaffirmance of portions of another ordinance, and the amendment of another ordinance.

We understand the entire subject-matter of the ordinance under consideration was the construction and operation of an extension of the track of the St. Clair street railroad line along Doan street, and that the other matters spoken of are simply incidents of that one subject-matter. This subject-matter is clearly expressed in the title of the ordinance, and therefore this position of the plaintiff: is untenable. So far as the ordinance undertakes to repeal any prior ordinance, it is found in Section 10, which reads:

“Section 10. Said railway company, by accepting the terms of this ordinance, shall be deemed to have waived all right to construct said Doan street line under the franchise granted and undertaken to be granted by the ordinance passed by the council of the village of Glenville, June 18th, 1902; and so much of said ordinance as is in conflict with the provisions of this ordinance, or relates in any manner to the granting of such right on Doan street is hereby repealed; in all other respects said ordinance is approved and confirmed.”

All that is done is in the language. ordinarily used in legislative enactments by the General Assembly, and we think no mandatory provision of the section referred to is violated by the language repealing a previous ordinance.

As to the language which it is said is obnoxious to the statute because it re-enacts some part of a former ordinance, it is enough.to say that the language used, viz.,“In all other respects said ordinance is approved and confirmed” added nothing to such former ordinance and was not a re-enactment thereof, but was simply surplusage, as such parts of the former ordinance as were not repealed would, without this language, have remained in force.

Objection is further made to the ordinance under consideration, that it extends the franchise upon St. Clair street. The franchise which the railroad company held on St. Clair street would have expired but for this extension.

The ordinance under consideration, as will be seen by Section 13 already quoted, grants the rights provided for in the ordinance to remain in force until the 18th of June, 1927. We do not understand that this would at all render the ordinance invalid.

Section 1536-185, Revised Statutes, provides:

“That no grant nor renewal for any grant for the construction or operation of any street railroad, shall be valid for a greater period than twenty-five years from the date of such grant or renewal.”

And as this simply provides that this extension may continue for a period of less than twenty-five years from the date of the ordinance, we think no just criticism can be made upon it in that regard.

This court, in the case of State, ex rel Hadden, v. East Cleveland Ry. Co., 6 C. C., 318, held that:

“Whenever in the opinion of the city council the public welfare would be promoted thereby, it may, by agreement with a street railway company, terminate a grant previous to its expiration and renew the franchise for any period not in excess of the limitation fixed by statute.”

Section 1536-184, Revised Statutes, provides for the renewal of grants already made, the language being “The council may renew any such grant at its expiration, upon such conditions as may be conducive to the public interest.”

If this last mentioned section applies at all to the matter under consideration, we do not suppose that it was intended by the Legislature that the date of the grant of every renewal must be at the exact day on which the original term expired. This would be impracticable, as is shown by Judge Upson in his opinion in the case already cited from the 6th C. C. Report.

It is further urged that the provisions of Section 1536-189 were not complied with in making this extension. Special attention is called to this language of the section:

“Provided, further, that no resolution or ordinance, providing for such extension or change of route or routes, or changes or revision of systems or transfers, shall be passed until public notice of the pendency of such resolution or ordinance shall have been given in one or more of the daily newspapers,” etc.

No claim is made on the part of the railway company that this was complied with, for the reason, as it 'is urged, that it has no application to the extension of the track of an existing line of road such as is provided for in Section 1536-188. An examination of those two sections (1536-188 and 1536-189) makes it plain that the subject-matter of each is different from the subject-matter of the other, and therefore the provisions as to the extension of routes are not applicable to the extension of the track of a road already laid.

Arnold Green, for plaintiff.

O. M. White, 0. A. Neff, Squire, Sanders & Dempsey, for defendants.

Other objections were made on the hearing to the proceedings of the council and the railway company, but an examination of the whole case leads us to the conclusion that the petition of the plaintiff should be dismissed, and it is so- ordered.  