
    State of Ohio v. The Dayton Traction Company and The Cincinnati and Miami Valley Traction Company.
    
      Electric railway company in city and interurban electric railway company — May enter into valid arrangement to carry merchandise — Section SW-ll, Rev. Stat.
    
    An electric railway company owning and operating a road upon a street of a city and an interurban electric railway company may, by favor of the provisions of section 3443-11 of the Revised Statutes, enter into a valid traffic arrangement for the carriage of merchandise for hire upon said street.
    (Decided March 26, 1901.)
    Error to the Circiiit Court of Montgomery county.
    On the 31st day of January, 1899, the former attornney general filed a petition in the circuit court of Montgomery county in the name of the state against said defendants, alleging that they are corporations of Dayton owned by the defendant, The Dayton Traction Company having its principal place of business in the city of Dayton, and the Cincinnati and Miami Valley Traction Company having property and doing business in the county of Montgomery in said state; that on or about the 9th day of April, 1898, said defendants entered into an agreement for the conduct and management of the street railroad line in the city of Dayton owned by the defendant, the Dayton Traction Company, since which date said street railroad has been managed and operated pursuant to said agreement; and defendants charge that in the operation and management of said road pursuant to said operating agreement the said companies are offending against the laws of the state and exercising a franchise not conferred in the following respect:
    
      “Defendants in the operation and management of said street railway in said city, over and upon Main street, in about the month of September, 1897, commenced, and are so continuing to do, by cars specially designed for that purpose and otherwise, to transport and carry over and upon said street railway, merchandise and freight for hire, all of which was and is contrary to the laws of Ohio and the ordinances of said city of Dayton.”
    The petition prays that the defendants be ousted from the franchise so alleged to be unlawfully assumed. To the petition the companies filed separate answers. Demurrers to these answers were interposed by the state, but on a hearing the circuit court being of the opinion that the petition does not state a cause of action, overruled the demurrers as to the answers and sustained them as against the petition. To reverse that judgment this proceeding in error is prosecuted.
    
      John M. Sheets, attorney general, and H. R. Probasco, for plaintiff in error.
    There is but one question involved in this case: Has a street railway company, formed for the purpose of building and maintaining a “street railroad,” the power to transport freight by freight cars, or otherwise, over the streets of a municipality in Ohio, or if, as an abstract proposition, it has the power, then has it the power to do so in the face of the provisions of a municipal ordinance expressly prohibiting the transportation of freight, and limiting it to the transportation of passengers only?
    The avowed purpose of the Dayton Traction Company is, as has been stated, the construction and. operation of a “street railway.” The term “street railway” or “street railroad” is technical. It does not mean simply a railroad track laid upon a street over and upon which cars for the transportation of passengers and merchandise may be used, but it means a railroad track so constructed upon the street as to 'not unnecessarily interfere with the public in the use of that portion of the street upon which the track is placed, over and upon which cars may be propelled for the transportation of passengers and their parcels in hand, the motive power of which cars may be such motive power as is approved by the authorities in control of the streets, and which is not inconsistent with the safety and comfort of the general public and the owners of abutting property. Subject to these limitations and restrictions railroads have been permitted to be constructed and operated upon the streets as a means of public convenience, but “a distinctive and essential feature of a street railway, in relation to other railroads, is that it is exclusively for the transportation of passengers, and not of goods.” Booth on Street Railways, Sec. 1, and note; Williams v. City Elec. St. Ry. Co., 41 Fed. Rep., 556; Elliott on Roads and Streets, pp. 557 to 558; Louisville Trust Co. v. Cincinnati, 76 Fed. Rep., 312; Joyce on Electric Law, Sec. 6; See Secs. 2640, 2501, 2502, 2505, 2505a, 2505c, Revised Statutes.
    Paragraph 1 of section 3443-1 (Cincinnati Street Railway), uses the language, “agrees to carry passengers (not freight) thereon at the lowest rates of faref’ and, “bidder proposing to carry passengers (not freight) on such route at a low rate of fare;” and paragraph 2 of the same section prohibits an increase in the charge for carrying passengers (not freight), on any street railroad so extended.”
    
      The word “fare” means the sum paid, or due, for conveying a person by land or water, * * * as the fare for conveying in a coach, or by railway.” Webster’s Dictionary; 8 Am. & Eng. Enc. Law, 902, and n. 1; 7 lb. 810; Massillon Bridge Co. v. Iron Co., 59 Ohio St., 179.
    The city of Dayton, by and through its officers and council, had the control of and the regulation of the use of the public highways (Sec. 2640, Revised Statutes; State v. Cincinnati Gas Co., 18 Ohio St., 262, and it will not be denied that its council had the right to pass the general street railroad ordinance of June 11,1869 (Sec. 2501, Revised Statutes), entitled: “An ordinance to prescribe the terms and conditions of the use of the streets and avenues of this city by street passenger railroads,” in Sec. 3 of which is to be found the following language: “And no road (street railroad) shall be used for transportation of freight, but only for passengers and their ordinary baggage, or packages in hand.”
    The municipal corporation of Dayton, therefore, having the exclusive power to impose the terms and conditions upon which the Dayton Traction Company might use the streets of that city for the conduct of a street railway business, the exercise of such powers, whether inherent or delegated, were not subject to judicial control. Booth on Street Railroads, Sec. 16; Cooley’s Constitutional Limitations (6th ed.), pp. 252-253; Milhau v. Sharp, 17 Barb., 435.
    The grant made to the Dayton Traction Company must be strictly construed against it, and liberally in favor of the plaintiff (the public), and the grant, or license, can not be extended be.yond its express terms. Railroad Co. v. Defiance, 52 Ohio St., 262; Ravenna 
      
      v. Penn. Company, 45 Ohio St., 118; Transportation Co. v. Palace Car Company, 139 U. S., 24.
    The avowed purpose of the Dayton Traction Com-, pany in its articles of incorporation was the conduct of a “street railway business,” and it has not the power to do any other business than a street railroad business. Railway v. Iron Co., 46 Ohio St., 44.
    The abutting property holders, whose consents must necessarily have been obtained, were filed with the council of the city of Dayton to give it jurisdiction to grant a franchise to the Dayton Traction Company, consented to the construction and operation of a street railway. It, the Dayton Traction Company, could not afterwards use the track for transportation of freight without obtaining additional consents of abutting property owners, and a new franchise. Booth on Street Railways, Sec. 6; Attorney General v. Railway Co., 112 Ill., 611.
    
      Quo warranto was the proper remedy in this case; the attorney general was the proper officer, and the-Montgomery county circuit court had jurisdiction. Sec. 204, Revised Statutes; Sec. 5026, Revised Statutes ; State v. Anderson, 45 Ohio St., 196; Secs. 6761-2-3, and 6768.
    The motive of the attorney general will not be inquired into where it is alleged that a corporation is guilty of usurpation of franchises or powers. State v. Gleason, 12 Florida, 190; Commonwealth v. Bank, 10 Phil. (Pa.), 156; 19 Am. & Eng. Enc. Law, pp. 675, 676.
    The defendants were required to disclose by* their answer their rights and titles to the franchise, in controversy, and should have shown by their answers a good title as against the state, and failing to. do so, judgment should have Leen against them. High on Ex. Remedies, Secs. 629 and 712; State v. Beecher, 15 Ohio, 723; State v. Vanderbilt, 37 Ohio St., 590, 631; Cooley’s Constitutional Limitations, 395; Bissell v. Railway Co., 22 N. Y., 259; Bradley v. Railway Co., 21 Conn., 306.
    
      McMahon & McMahon, for defendant in error.
    The circuit court held that an ordinary street railroad had the right to carry merchandise, prior to the law of May 17, 1894.
    In addition to the able argument contained in the decision in this case reported in State v. Traction Co., 10 Circ. Dec., 212; 18 C. C. R., 490, to which we refer, we beg leave to suggest the following points,.assuming for the argument, that the Dayton Traction Company had the powers of an ordinary street railroad only:
    Street railroads existed prior to the act of 1861, and were recognized as valid corporations existing under the statutes then in force. See the act of the legislature of March 5,1860, 57 O. L., 16, Secs. 14,15.
    16 and 17, to be found in 2 Swan & Critchfield, Revised Statutes (1860), pp. 1557-1560; Street Railway Co. v. Cumminsville, 14 Ohio St., 523.
    No distinction was recognized in law as to freight or passengers. Both were railroads. The nature of things made them exclusively passenger roads. * The general act of 1861, which purported to be a special provision for street railroads, 58 O. L., 66, provided in section 1 how street railroad companies should be organized, and in section 2 defined their powers. By section 3 of the act, sections 5, 6, 7, 8, 9, and 14 of the general act of incorporation were made a part of the act. Section 4 provided for consolidation; section 5 provided the manner of consent of city and referred expressly to the act of March 5,1860, above cited, etc.
    
      By the general revision of the statutes, in 1880, the act of April 10, 1861, was repealed in express terms. Revised Statutes, 1880; Yol. 2, p. 1763, Repeal 467.. .
    No. provision will be found in the statutes of 1880 for the organization of street railroads,, or defining their powers. All the express provisions are found in Secs. 2501 to 2505 inclusive, and Secs. 3437 to 3443, inclusive.
    Organization, powers, right to borrow monej, consolidate, etc., all rested in the general act, either under chapter 1, or chapter 2, and street railroads were again practically railroads, subject to the laws regulating steam railroads in so far as they were applicable.
    By act of March 13, 1883, it was ordained that nothing in the Revised Statutes relating to railroads, prior to Sec. 3437 shall apply to street railroads, except Secs. 3287, 3288, and 3289 — these sections providing for borrowing money, executing mortgages, etc.
    There has not existed since 1880 any statute defining or limiting the powers of a railroad company organized as a street, railroad company. It will be observed that in the railroad chapter defining the powers, etc., of what are known as steam railroads, there is no express grant of the right to carry persons and freight. That right is assumed to exist, and its exercise is regulated by various provisions of law.
    The attorney general,‘or his representative, argues upon an alleged prohibition in an ancient ordinance of 1869, which nowhere appears in the record. We do not care for this antiquity although the circuit court seems to have considered the case as though such an ordinance was in the record. In the view the court took of such an ordinance its existence was immaterial. But this court cannot take cognizance of an unpleaded ordinance, in an argument upon demurrer. Dillon on Municipal Corporations, Sec. 83, Sec. 412; Am. and Eng. Enc. Law, Title, Judicial Notice.
    But proceeding now further upon the assumption that under the statute a street railroad company can carry freight unléss restrained by ordinance, let us consider whether an action in quo loarranto will lie if the railroad company carries freight merely in violation either, of the ordinance granting it the right in the streets, or a general ordinance regulating street railroads.
    Section 6761 provides for the cases when this action ma,y be brought against a corporation.
    If the statutes of the state give it the right to carry freight, and the right to exercise such franchise has been granted away in a contract or otherwise to the city, assuming that the city can impose or require such conditions, it appears to us that the public interest has been to a great extent eliminated, and that the questidn becomes one between the city arid the railroad company, and that a plain and exclusive remedy exists in favor of the city under the Revised Statutes of Ohio; and that the cause of action is not a claim by contract or otherwise to a franchise in contravention of law. Sec. 1777, Ohio Statutes: State v. Berry, 14 Ohio St., 315; State v. Ganson, 58 Ohio St., 313; State v. Marlow, 15 Ohio St., 114.
    That section 1777 covers the contract between the city and a street railroad is decided in Street R. R. Co. v. Smith, 29 Ohio St., 291.
    And as any taxpayer can set the city solicitor in motion, and upon his failure to act, can himself proceed, at the expense of the city, the remedy is very complete.
    
      We refer to the following cases outside of Ohio where the law has been similarly declared — particularly. where private interests are behind the state name, And we refer more especially to the case in 172 Illinois, cited below, and the cases referred to in it. Attorney General v. Gas Co., DeGex McN. & Gordon, 303; People v. Equity Gas Co., 141 N. Y., 232; Attorney General v. Railroad Company, 125 Mass., 515; People v. Gen. Elec. R. Co., 172 Illinois, 129; New Hampshire v. Louisiana, 108 U. S., 76.
   Shauck, J.

The petition does not call upon the defendants to show by what authority they assume to exercise the franchise or privilege in question; but, conceding that they are common carriers authorized to carry passengers on Main street in Dayton, it charges the carriage of freight and merchandise on said street for hire as the usurpation of a franchise not conferred. In any view quo warranto is a prerogative writ to be employed to shield the sovereignty of the state from invasion and to prevent the abuse of corporate powers. We have become familiar with its use to prevent combinations among artificial persons to stifle competition. It is quite obvious that it should not be resorted to at the instance of a competitor, for the purpose of preventing competition. ,

We have therefore to inquire whether the carriage of merchandise for hire under the conditions presented is the exercise of a franchise not conferred upon carrying companies of this character. Because the petition avers that the defendant companies have entered into an agreement for the conduct of the road on Main street, and impliedly avers, or at least permits the inference, that one of them is an electric interurban road, having its termini at Cincinnati and Dayton, and the other an electric company owning the road apon Main street in Dayton, it will justify the judgment of. the circuit court if the right in question might result from any operating agreement or arrangement into which the said companies are authorized to enter. '

Counsel for the plaintiff in error urge as conclusive of the subject numerous texts and decisions in which street railroads are defined as carriers cf passengers. Uusually they have been so defined for the obvious reason that until recently they were exclusively engaged in the carriage of passengers; but the general definition cannot be material in view of recent legislation in which the term is applied to roads constructed upon highways, interurban as well as urban, the only requirement being that in construction and operation they shall be consistent with the former and ordinary use of such highways, and in which legislation provision is made for the carriage of merchandise. It is well known that it was in response to a general demand for increased traffic facilities between cities and the regions surrounding them that the act of May 17, 1894 (91 O. L., 285), which is now included in sections 3443-8 to 3443-13 of the Revised Statutes, was enacted. In that act railways of this character, wherever located, are called street railways. The second section authorized them upon obtaining the consent of the authorities controlling them, and of the owners of the property abutting on them, to occupy and use highways outside of cities and villages. The fourth section of the act (3143-11, R. S.) is as follows:

“Section 4. Such companies shall have power to lease, purchase or make traffic arrangements with any other street railroad company as to so much of its tracks and other property as may. be necessary or desirable to enable them to enter or pass through any city or Tillage, upon the same terms and conditions applicable to other street railroads. And any existing street railroad company owning or operating a street railroad shall receive the cars, freight, packages or passengers of any other road, upon the same terms and conditions as they carry for the general public.”

Since the provisions of this section contain definite authority for the making of a traffic arrangement by which the defendants might have and exercise the powers which the petition alleges they are now exercising, the view taken of the petition in the circuit court is correct.

Judgment affirmed.

Burket, Spear and Davis, JJ., concur.  