APRIL TERM, 1909.*

CITY OF MASON v. LANSING & JACKSON RAILWAY CO.▲

1. RAILROAds-Streets-MUNICIPAL CORPORATIONS - FRANCHISES

-STATUTES.

A railroad organized under 2 Comp. Laws, §§ 6223 et seq., may construct a section of an interurban electric railway, within city limits, on private right of way and crossing city streets, without obtaining a franchise from the municipality, although the purpose of organizing the steam railway company was to avoid the necessity of accepting a right of way offered by the city, which the interurban company considered too circuitous and expensive. MOALVAY, J., and BLAIR, C. J., dissenting.

2. STREET RAILWAYS-FRANCHISES-REGULATION.

It is only when a street railway is operated along the streets of a municipality that conditions and limitations may be imposed by the common council. MCALVAY, J., and BLAIR, C. J., dissenting.

3. RAILROADS-LENGTH OF LINE-STATUTES.

No restrictions as to length of steam roads are imposed by chapter 164, 2 Comp. Laws.

4. SAME-ELECTRIC OPERATION-STATUTES.

Railroads organized under chapter 164, 2 Comp. Laws, may operate all or parts of the line by electricity. MCALVAY, J., and BLAIR, C. J., dissenting.

Appeal from Ingham; Wisner, J., presiding. Submitted January 19, 1909. (Docket No. 109.) Decided May 26, 1909.

Bill by the city of Mason against the Lansing & Jackson Railway Company, the Michigan United Railways Company, the Lansing Southern Railroad Company, and * Continued from Vol. 156.

the Northern Construction Company to enjoin the construction and operation of a railway. From a decree dismissing the bill, complainant appeals. Affirmed.

Louis B. McArthur (Lawton T. Hemans and Otto Kirchner, of counsel), for complainant.

Sanford W. Ladd and Arthur J. Tuttle (Stevenson, Carpenter & Butzel, of counsel), for defendants.

MOORE, J. The complainant is a municipal corporation incorporated under the provisions of Act No. 178, Laws 1873, by Act No. 277, Local Acts 1875, reincorporated by Act No. 272, Local Acts 1891. The defendants the Lansing & Jackson Railway Company and the Michigan United Railways Company are domestic corporations organized and incorporated under the provisions of an act to provide for the formation of street railway companies, the same being chapter 168 of the Compiled Laws of 1897, as amended. The defendant the Northern Construction Company is a domestic corporation organized under the provisions of Act No. 232, Pub. Acts 1903, and the defendant the Lansing Southern Railroad Company is a domestic corporation incorporated under Act No. 198, Laws 1873; this act being what is known as the "steam or commercial railroad act."

Some time prior to the month of February, 1905, Myron W. Mills, George G. Moore, and James R. Elliott, associated with other gentlemen, became the owners of the street railway system in the city of Lansing. In the month of February, 1905, these men made application to the common council of the city of Mason for a franchise for the construction through the city of Mason of a street or interurban railway which they purposed to construct from the city of Lansing through the city of Mason to the city of Jackson. They presented a franchise to the common council of the city of Mason. The common council refused to grant the franchise desired. On the 30th of March, 1905, Myron W. Mills, George G. Moore, James

R. Elliott, the three gentlemen heretofore named, together with David W. Mills, executed articles of incorporation for the Lansing & Jackson Railway Company, which were filed in the office of the secretary of State; the purpose of this organization, as stated in its articles of incorporation, being

"To construct, purchase, lease, own, maintain, use and operate street railways, in, through, upon and along private rights of way, streets, roads, alleys and highways in cities and villages and extending through and from cities and villages into adjoining townships and in, through, upon and along private rights of way, streets, roads, alleys and highways in townships in the State of Michigan, and especially the cities of Lansing and Jackson and the townships, villages and cities between said "cities."

Following the organization of this corporation, it, through its officers, Myron W. Mills, George G. Moore, and James R. Elliott, executed a map of that portion of its proposed route from the southern corporate limits of the city of Lansing to the northern corporate limits of the city of Mason. This map was approved August 15, 1905, and filed in the office of the register of deeds for the county of Ingham.

At or about this time the Lansing & Jackson Railway Company contracted with its officers, Messrs. Myron W. Mills, George G. Moore, and James R. Elliott, for the construction of the road upon the line designated in their map, and to facilitate the construction the contractors secured options upon and purchased further right of way both to the north and south of the city of Mason and procured franchises from townships and from the village of Leslie and made frequent application to the common council of the city of Mason for a franchise through said city, and during the year 1905 constructed some six or eight miles of roadbed. No franchise was granted by the common council of the city of Mason because the parties were unable to agree as to the street to be occupied

by said company. On or about the 31st of March, 1906, James R. Elliott and others united in the incorporation of the defendant the Michigan United Railways Company; the purpose of this corporation, as set forth in article 2 of its articles of association, being "to construct, purchase, lease, own, maintain, use and operate street railways" through various designated sections of the State and over certain designated routes, among which was the following:

"From the city of Lansing, Ingham county, and through the city of Mason and the village of Leslie to the city of Jackson."

Of this company Myron W. Mills became president, James R. Elliott vice president and treasurer, and George G. Moore a director, and later Theron W. Atwood became a director. On or about May 25, 1906, James R. Elliott and others effected the organization and incorporation of the defendant the Northern Construction Company. Of this company Theron W. Atwood soon became president, a position he has since continued to occupy.

Some time in June, 1907, Messrs. Mills, Moore, and Elliott, who had contracted for the construction of the road with the Lansing & Jackson Railway Company, sublet the contract for construction to the Northern Construction Company. During the summer of 1907 the construction begun by Messrs. Mills, Moore, and Elliott was practically completed, and a street or interurban railway connecting with the street railway system of the city of Lansing extended to the north corporate limits of the city of Mason. While this work was in progress, Mr. Atwood made frequent overtures to the common council of the city of Mason for a franchise for the construction of such road through the city upon a line which the officers and agents had surveyed and marked; Mr. Atwood finally saying to the officers of the city that, unless a franchise was granted to the Lansing & Jackson Railway Company to construct the road where they desired to con

struct it, they would force its way through the city without a franchise. Following such representations, and the survey of the line through the city of Mason, Mr. Theron W. Atwood, James R. Elliott, and others, officers and agents of the defendant companies, organized the defendant company the Lansing Southern Railroad Company; the articles of association being filed in the office of the secretary of State on the 11th day of September, 1907. The purpose of the organization of said company, as stated in article 5 of its articles of incorporation, being to construct a railroad of T-rails, standard gauge, near the center of northeast one-quarter of section 6 of the township of Vevay, in the county of Ingham, State of Michigan; thence in said township of Vevay to a point about 350 feet south and 58 feet east of the northwest one-quarter of section 16 of the township of Vevay-which railroad is to be operated by electric power. The total length of said line being 2.36 miles. On the same day that the Lansing Southern Railroad Company filed its articles of incorporation, it filed its map of its proposed route through the city of Mason. Said route was over a private right of way, but near the route demanded by the Lansing & Jackson Railway Company and connecting the termini of the Lansing & Jackson Railway Company at the northern and southern corporate limits of the city of Mason. At once after the organization of the Lansing Southern Railroad Company the defendant, the Northern Construction Company purchased right of way within the city of Mason and proceeded to grade and construct a railway connecting with the Lansing & Jackson Railway into the city of Mason. At this juncture the bill of complaint was filed in this cause. After a hearing upon the merits, the bill of complaint was dismissed. The case is brought here by appeal.

It is the claim of complainant that what is attempted to be done is to construct and operate a street and suburban railway, in fact, and that the organization of the Lansing Southern Railroad Company under the general