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corporation and the purpose for which it was formed. In that respect I apprehend that the statement of counsel for defendant as to what would determine the character of such corporations is correct, and therefore we will have to look into that statute and consider the character of this corporation to determine whether it was such a one as could have been formed under the provisions of title 1 of that chapter.

There are in that chapter five titles under which corporations could be formed. Title 5 relates to cemetery corporations. Title 4 relates to religious corporations. Those could not be considered, of course. Title 3 relates to corporations that are formed not for pecuniary profit, such as colleges and cemeteries and lyceums and societies, either legal, medical, or scientific. It certainly does not come under that. It could not have been formed under title 3. Title 1 relates to corporations that are authorized, or may be authorized, to exercise the right of eminent domain. That is the general heading of the title. Title 2 relates to corporations that are formed for pecuniary profit, other than those that are allowed to be formed under title 1. In looking through this title and the description of corporations that may be formed under it, it seems they are all for the purpose of conducting private enterprises. Mining, smelting, manufacturing, lumbering, agricultural, mechanical, and chemical businesses are the kinds that are mentioned specifically. Each one of those kinds of business is a private business in which the public has no concern. They are entirely for the purpose

Judge Lancaster: Does your honor have in mind the amendments, or just 1866?

The Court: I was referring to the law as it stood when this corporation was formed, the law of 1866. Now, this is a corporation which evidently is not formed simply for the purposes of private gain. It is not a private business. It is a quasi public corporation, a corporation formed for the performance of public service wholly. Its entire business is the carriage of passengers for hire, and it is obliged to carry every one who offers himself to be carried. Its duties are public. It is a corporation of the character that is ordinarily empowered to exercise the right of eminent domain, which is one of the highest powers of the sovereignty, the power to take private property for a public use. Therefore a corporation can only exercise that power when the right to exercise it is delegated by the sovereign, and then only for a public use. . It is only where the corporation is a public service corporation, a quasi public corporation, that it can be authorized by the Legislature, by the sovereign, or invested with the exercise of that power. Now, there is no such corporation, no such business as that, included in title 2 of chapter 34 of the General Statutes of 1866, and I feel therefore compelled to hold that this corporation could not have been formed under that title, for it is not at all of the character of the businesses that are named for which corporations may be formed, and, even although that title might be extended to kinds of business that are not particularly named, they would have to be corporations of a similar character in order to come under it. This is not of similar character to come under it, and therefore, if it was not a corporation formed under title 1, its business was not such as would allow its promoters to form a corporation under title 2, and they would have no authority under the Statutes of 1866 to form a corporation at all.

The question, therefore, is narrowed to the consideration of whether the business that these promoters proposed by the articles of incorporation to engage in was such as would permit of incorporation under title 1. If it was not, then it was not a corporation. * Title 1 in its heading states it to refer to corporations authorized to exercise the power of eminent domain. Then it specifies “railways, canals, and slack water navigation, either in lakes or rivers," and some other kinds, perhaps, but all evidently public service corporations, quasi public corporations, corporations which under the laws it has been always understood might be invested with the right to exercise the power of eminent domain for public use. As I said before, a street railway is a corporation of that character. It is a quasi public corporation. Its duties are to render public service. Now, it is true that street railways, by that name, are not mentioned in title 1. Railways are mentioned as the very first kind of business that is named in the title. It also includes “any other public improvement,” any association formed for the purpose of carrying on the work of public improvement; but it seems to me that the title of “railways," without more, covers the case of street railways. In other words, that "railways” is a generic title which covers all kinds of railways. A railway is a way which is made for the movement of cars, or something of that character, upon tracks that are laid down either on the street or somewhere else. They are not propelled as ordinary vehicles, such as wagons and carriages, are on the highways generally, but require for their operation that tracks be expressly formed to be moved upon, and a street railway is of that character. Therefore, it is distinctly a railway. Now, there is nothing in that statute which would indicate that street railways were not included in it. They are railways. They perform public functions. It is proper to invest them with the power to exercise the right and power of eminent domain. There is no reason in the world why they should be omitted. It is true, as stated by Judge Mitchell in some of the cases, that, where the word “railway" is used in statutes, it usually refers to commercial railways. I do not think there was anything in his statement (because he was usually pretty careful) that it was universally so, and that there were no exceptions, because, if he had made that statement, he would be incorrect. I think it is true that the statutes to which he refers are usually statutes enacted for the purpose of regulating commercial railways and their use in the state. Such statutes have provided that such railroads shall have signs at crossings of streets and highways, and that they shall give notice of the passing of trains by ringing the bell or sounding the whistle, and also, perhaps, that in respect to couplers they should use none except those that couple automatically by impact for the safety of the employés employed in the operation of the railroad. Now, all those provisions would have nothing to do with street cars, and, where there was such a provision in a statute, is is easy to see that street cars were not intended or meant. The same may be said of the act of the Legislature abolishing what is known among lawyers as the "fellow servant rule” as a defense in the case of injury to employés upon a railroad. That would have no application to a street railroad, because the dangers to which employés are subject on an ordinary commercial railroad do not occur in the case of a street railroad. There is another kind of railroad that has been established and used in this state to some extent, which is entirely a private railroad, which could not exercise the power of eminent domain, and would not be entitled to. No one would be entitled to be incorporated for the purpose of running such a railroad, although it might be done by a corporation that was formed under title 2 for carrying on the lumber business; but it is well known that men engaged in lumbering in this state have private railroads running for some distance, some miles, for the purpose of moving their logs and getting them to mills or to the streams where they may be floated, and it is very possible that, although those railroads are not formed under any charters, they are or may be owned by corporate bodies. A good many of these regulations would apply to them, such as the regulations requiring signs if such a railroad should be run across a public highway, or before a locomotive should pass a highway there should be warning given by ringing the bell or sounding the whistle, or something of that kind; and the Supreme Court of the state have held that the law abolishing the fellow servant rule does apply to this kind of railroads, although they are not mentioned at all in the act, the act mentioning only railways. So it is not true that where railways alone, without more, are mentioned in the statute, it always refers to a commercial railway, and I see no reason why it should not, as it is used in title 1, c. 34, include street railways, as well.

Now, section 13 of that act, and sections following, provide for the procedure, notice, and use of the power of eminent domain. No; that is not true. Section 13 provides in respect to what property matters it may be exercised; that is, to obtain the right of way over and across any lands needed for the construction of any railway, telegraph, and the necessary sites and grounds for depots, shops, or other buildings requisite for the purpose. Now, it may be true that a street car company which confines its tracks entirely to the streets, as it properly ought to, and ought to be expected to do, would not need the exercise of the power of eminent domain for the purpose of obtaining a right of way, if it obtained that right of way from the city council, but it would or might need the exercise of the power of eminent domain for many other purposes, such as obtaining sites for shops and for other buildings necessary for the conduct of the business. Now, even in the old days when this was a horse railroad here in Minneapolis, it was necessary to use buildings. The street car company could not get along if confined to its right of way entirely. It would have to have some place to put up its cars at night; and, when it was run by animal power, to house its animals and feed them. There would be no opportunity to do this if they had to keep the animals upon the streets. It would not be expected. “And where the corporation has the authority to exercise the power of eminent domain it may exercise it in a case where it might be convenient, although it might get along without. It would also, besides having to get a place to house its cars and its animals, need to have shops for the purpose of repairing its cars

from the result of the natural wear and tear and breakage which must happen to such things, and, as a matter of fact, it is well known to the old residents that the street car company did at a very early day obtain such ground, not by the exercise of the power of eminent domain, but by purchase. For instance, when this line was first established, know that it obtained down in my neighborhood a block of land upon which was formerly the residence of Caleb D. Dorr, down between Thirteenth and Fourteenth Avenues Southeast, and upon that established barns and stables and places to house cars, and at a later day it obtained on the east side-I am a great deal more familiar with that than upon the west side--it obtained a block of land from Farnham & Lovejoy somewhere about Second Avenue North between Third and Fourth streets, using that whole block. Perhaps that was done after they changed to electricity. My recollection of its use was as a storage place for electric cars. It would necessarily be obliged to have storage places for cars when not in use in a portion of the nighttime. There is generally a time somewhere between midnight and morning when the cars are not in use, and when they would be an obstruction and nuisance if allowed to stand upon the streets, and the city would not permit this; or that they should be allowed to stand upon the streets when they were not in use in the day or nighttime either. Consequently there would have to be some place provided for keeping them during those times; and also, as I said before, for the location of shops, for repairs at least, and it seems to me that it would be entirely proper to obtain through the power of eminent domain, if it could not be done by purchase, shops for the building of cars, although that would not be absolutely necessary, as cars might be purchased from other persons who built cars, but it would be a proper exercise of the power of such a corporation to build its own cars, and proper for them to obtain, by the exercise of the power of eminent domain if necessary, the proper site for building those cars. I will therefore conclude that this corporation which attempted, so far as the incorporators were concerned, to be organized under title 1, c. 34, Laws 1866, was so organized under that title.

Then the question comes whether the contract made between the city and the complainant, the street car company, as to fares still continues in force; and I understand it to be admitted by counsel for defendant that there was such a contract made by virtue of the ordinance of July 9, 1875, and that that contract was valid and enforceable and binding upon the parties during its existence, the claim on the part of the counsel being that it ceased to exist in 1903, when, as they claim, the charter of the street car company ceased also to exist, having, as he thought, been organized under title 2 of chapter 34 with the limitation of 30 years, but under my holding that it is yet a corporation, and that the charter privileges inured to the company as a contract by virtue of that grant, the power to make the contract being given, if not by the charter, by the act of March 4, 1879 (Sp. Laws 1879, p. 410, c. 299), which validated in terms that contract.

It is claimed, also, on the part of the defendant, that this was only a company authorized to establish and operate street cars run by the motive power which is mentioned in that contract, either animal or pneumatic power, and that, when it ceased to use that power, it ceased to be the same corporation, that it gave up its corporate rights, or its contract rights under that ordinance by ceasing to use that particular kind of power. My conclusion is different from my reading of the contract. There is no doubt that at the time this contract was entered into and this ordinance was passed and accepted by the street car company it was understood that the street car service to be established under it would be one in which the cars would be propelled by animal power. It was provided it should be either by animal or pneumatic power. I think the statement of Judge Koon is true that pneumatic power was something that was somewhat fanciful at the time; that it had not been tried for such purpose. I never knew of its being tried for a purpose of that kind. I do not understand how such a power could be made applicable to the propulsion of a street car. Pneumatic power is something that is done by compressed air; but how it can be compressed and applied to such a use I do not understand. Still this contract does seem to contemplate that such power may be used. It does contain provisions which shows it was contemplated, and also that they might change the kind of power to be used, for it says:

"No propelling power or machinery of any sort should be used after it should prove to be a public nuisance.”

This provision follows immediately after the words that provide for the use of such power. Then it provides, also, that the street car company should connect with other street car companies, but they shall permit no locomotive, freight, or passenger car, such as are usually run over the general railways of the state for the transportation of freight and passengers, to be used unless authorized by the city council. It contemplates that even those may be used if authorized by the city council, “and that the said Minneapolis Street Railway Company, and any other street railway company which the council may charter under section 3 of this ordinance shall each allow the other to connect with and jointly use such portions of the track belonging to each as the convenience of the traveling public may require, upon such equitable terms as may be agreed upon” between the parties. There is some provision that they shall only allow cars from other tracks to come on their railway track that are propelled by such power as the council

Judge Koon: It is the earlier part of section 4 judge. "Said company may connect with any other railway upon which power is used similar to that authorized to be used on street railways by the city council.” It is just above where you commenced to read.

The Court: That is it. It does not confine them to cars that are run by animal and locomotive power, but to such as may be authorized to be used on street railways by the city council. It contemplates that the city council may authorize different kinds of power to be used. I need not refer to the provisions of this ordinance in respect to the rates of fare. It has been discussed so much and is so well understood by counsel and anybody listening to the argument here. The provision is, in short, that the street railway company may

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