Commonwealth, ex rel. v. Westchester. F. C. Hooton, for relator. Buller & Windle, for defendants. WADDELL, P. J.: We are asked by certain citizens, in behalf of the general public, to issue a writ of mandamus, requiring the authorities of the borough of Westchester to remove a large number of poles already erected by the Westchester Railway Company upon the sidewalks of High and Market streets in the said borough. The reasons alleged for the issuing of the writ are that said poles have been erected without authority, and are to sustain, over the middle and along the sides of the streets named, one or more electric wires, which are to be used in connection with the railway for the propulsion of the cars by an electric current; that said wires will be uncovered and will be crossed by numerous telephone and telegraph wires, and, because of the powerful current of electricity necessary to be carried over and along the wires of the railroad company, those telephone and telegraph wires will become dangerous and deadly to persons and property, if any derangement of said wires should occur; that by reason of these wires, the railway tracks are liable at times to be charged with electricity to such an extent as to seriously shock horses and other animals, and that cars propelled by the electric system frighten horses to an unusual extent and will tend to prevent the streets named from being used for travel by horses. The relators further allege that they believe, if these poles were removed, it would take away from the railway company the means by which it could set up and maintain the appliances which make its system. dangerous to the public, and would compel the railway to either put its wires under ground or cause it to employ other motive power. The respondents, in return to the alternative mandamus issued upon these various allegations, answer and say that these poles were erected by the Westchester Railway Company under and by virtue of the authority given them under Railway Co. v. Mills and Breitmeyer. and impedes the use and enjoyment of their property, and imposes an additional servitude upon the street. They also filed a cross bill praying for a perpetual injunction against the use of such railway. The case was heard upon the pleadings and proofs, and decree entered in favor of the complainant, the railway company. 1. The act under which complainant is organized is attacked as unconstitutional and void in that it embraces more than one object, which is not expressed in its title. [This is discussed at length, and decided to be untenable.] 2. It is next insisted that the municipality of the city of Detroit does not possess the power to permit the complainant to operate its cars by electricity, and that, therefore, the complainant is acting without authority of law. The precise claim is that chapter 94 How. Stat. does not authorize the use of this motive power by the companies to be organized under it, but limits them to the use of such powers as were known at the time of the passage of the act and the amendments thereto. Granting this position to be correct, it follows that the action of the complainant is ultra vires of the corporation. The obvious and conclusive answer to this claim is that it is a matter between the complainant and the State. The defendants are not in position to raise the question. The mere usurpation of corporate authority does not confer upon the individual the right to bring suit to restrain the unlawful exercise of authority, nor to raise it collaterally. If the State chooses to waive it, or by its silence permit the action, no others can complain, so long as the personal or property rights of the individual are not evaded or affected. It therefore follows that, unless these defendants are injured, they are not concerned in this question. Swartwout v. Railroad Co., 24 Mich. 393 ; Jones v. Habersham, 107 U. S. 174 (2 Sup. Ct. Rep. 336); Newell v. Railway Co., 35 Minn. 112 (27 N. W. Rep. 839); Railway Co. v. Orton, 32 Fed. Rep. 471; Bridge Co. v. Railway Co. v. Mills and Breitmeyer. Prange, 35 Mich. 400. Until the right has been determined in a direct proceeding brought by the State or the city, the complainant may continue the use of such power. 3. It is unnecessary to discuss the proposition that the right of the complainant to use electricity is not conferred by the original act of 1855. By the act of 1867 the right to use any other animal power was expressly conferred, to be exercised under the authority and direction of the municipal authorities. By the act of 1871, section 1 was amended so as to provide for constructing, owning and operating a train railway or road for the conveyance of persons or property, to be operated by horse or other animal power, or by steam, or by pneumatic or any other motive power, or by the combination of them. How. Stat. secs. 3495, 3533. Upon the authority thus conferred the common council of the City of Detroit passed the ordinance above mentioned. In accepting the ordinance, the complainant accepted the provisions of the law as an amendment to its corporate powers. This would be true if its articles of association described its purpose to be the construction of a horse railroad, as it is stated to be in defendants' brief. The language, however, of the articles is broader than this, for its purpose is declared to be the construction of a horse or city railroad, under the act of the Legislature above mentioned. The general railroad law enacted in 1855 provides for the use of the force and power of steam, of animals, or any mechanical power, or any combination of them. If some new motor (such as a storage battery, which counsel for the defendants in their brief say will no doubt be discovered in the immediate future) should be found to take the place of steam, and thereby dispense with the noise incident thereto, and the discomforts and dirt and smoke, would it be contended that railroad companies could not use it, under the provisions of this law, because it was not known at the time the law was passed? These laws were enacted in times of rapid advancement in the mechanical arts. This advancement is nowhere more forcibly shown than in the VOL. III-22. Railway Co. v. Mills and Breitmeyer. discovery and use of devices and motors to facilitate travel and transportation. It cannot, in my judgment, be held that the Legislature intended to limit these corporations to the use of things that were then known. This rule would be too rigid and technical to merit approval. The common law is more elastic and progressive. It adapts itself to meet the needs of the people, and the advance of science and civilization. As well it might be contended that when land is dedicated to or condemned for the public use for highways, its use must be limited to the then known methods of travel and transportation. Engines now travel over nearly every public highway in the agricultural portion of the country, propelled by steam, drawing large machines, and stopping at nearly every farm to facilitate the work of the farmers; yet upon this innovation of the use of the highway this same principle was invoked, as is now invoked, to prevent it. Macomber v. Nichols, 34 Mich. 212. In this case the defendant was held liable in the Circuit Court for running such an engine along the highway. In his opinion, Chief Justice COOLEY says: "Persons making use of horses, as the means of travel or traffic by the highways, have no rights therein superior to those who make use of the ways in other modes. It is true that locomotion upon the public roads has hitherto been chiefly by means of horses and similar animals, but persons using them have no prescriptive rights, and are entitled only to the same reasonable use of the ways which they must accord to all others. Improved methods of locomotion are perfectly admissible, if any shall be discovered, and they cannot be excluded from the existing public roads, provided their use is consistent with the present methods. Steam has been used as a motor in the public streets, and its use sustained. Moses v. Railroad Co., 21 Ill. 516. The court in that case say: "A street is made for the passage of persons and property, and the law cannot define what exclusive means To say that a of transportation shall be used. * * * Railway Co. v. Mills and Breitmeyer. new mode of passage shall be banished from the streets, no matter how much the general good may require it, simply because the streets were not so used in the days of Blackstone, would hardly comport with the advancement and enlightenment of the present age." See, also, Fulton v. Railway Co., 85 Ky. 640 (4 S. W. Rep. 332); Stanley v. City of Davenport, 54 Iowa, 463 (2 N. W. Rep. 1064). The use of electricity causes no greater obstruction or hindrance, and imposes no greater burden upon the streets, than does the ordinary horse railway, except it be by placing posts along the streets, a matter to be hereafter discussed. The electric car does not occupy as much space upon the streets as does the car with the horses attached. It is not more noisy, is cleaner, is stopped and started quicker, moves faster, is more readily controlled, and by its more rapid carriage of passengers, relieves the street to some extent, at least. of travel. These are matters of common observation. Its advantages over horse power are apparent. But it is most severely attacked because it is dangerous, and evidence of accidents, caused by it in this and other States, was introduced by the defendants. Some of this evidence, it appears, was used in the courts of other States, where the use of this power was sustained. It has not, however, been shown in this suit to be so dangerous as to justify the court in enjoining its use. The electric railway is now in use in nearly all of the large cities and many of the smaller ones of the country. I am not aware that any court has yet enjoined its use on the ground of danger. Steam annually causes the loss of many lives and great destruction of property; yet no one has ever sought for that reason to enjoin its use as a motive power in transportation. This matter may be safely left where the Legislature has left it, to the municipal authorities, who presumably will not permit the use of those things which cause unnecessary danger. The Legislature has expressly conferred upon the cities of this State the right to authorize the use of any motive power whatever upon their street railways. Under this power exists the right to authorize |