Omaha Horse-Railway Co. v. Cable Tramway Co.

• Decision Date: 05 March 1887
• Parties: OMAHA HORSE RY. CO. v. CABLE TRAMWAY CO. OF OMAHA.
• Court: U.S. District Court — District of Nebraska

30 F. 324

OMAHA HORSE RY. CO. v. CABLE TRAMWAY CO. OF OMAHA.

United States Circuit Court, D. Nebraska.

March 5, 1887

'Section 1. Be it enacted by the council and house of representatives of the territory of Nebraska, that Alfred Burley, Ezra Millard, George W. Frost, Joel T. Griffin, J. W. Paddock, C S. Chase, Geo. M. O'Brien, J. R. Meridith, R. A. Bird, E B. Chandler, John McCormick, Augustus Kountze, Wm. Ruth, J Frank Coffman, A. J. Hanscom, and David Butler be, and they are hereby, created and constituted a body corporate and politic by the name of the 'Omaha Horse-railway Company,' with all the power and authority incident to railroad corporations within the territory or under the laws thereof; provided, that the said corporation shall within two years from the granting of this charter have at lease one mile of said horse railroad completed and in running order together with the necessary depots, cars, and all other equipments necessary for the running of the aforesaid road.

'Sec. 2. The said corporation is hereby authorized and empowered to lay out, construct, maintain, and operate a single or double track railway, with all necessary and convenient tracks for turnouts, switches, side tracks, together with all depots and all other appendages as are incident thereto, in the city of Omaha, and in, on, over, and along such street or streets, highway or highways, bridge or bridges, river or rivers, within the present or future limits of the said city of Omaha, or within five miles adjacent thereto, as said company may order or direct, for the use herein specified; but said company shall not build a track through or occupy, except for crossing purposes, Fourteenth street or any other street through which any railroad company has already obtained the right of way; and said company hereby incorporated shall not be liable for the loss of any baggage or package or other articles carried on said railway kept in and under the care of its owner, his or her servant or agent.

'Sec. 3. The capital stock of said corporation shall be one hundred thousand dollars, and may be increased from time to time at the pleasure of the stockholders and directors of said corporation, not to exceed one million dollars. The stock shall be divided into shares of one hundred dollars each, and be issued and transferred in such manner and upon such conditions as the board of directors of said corporation may direct.

'Sec. 4. All the corporate powers of said corporation shall be vested in and exercised by a board of directors and such officers and agents as said board shall appoint. The first board of directors shall consist of a majority of the corporators herein named, to be elected at their first meeting, and the directors so elected shall hold their office for the term of one year from the time of their election, and until their successors are elected and qualified; and thereafter the stockholders shall select of their number five who shall be directors for the term above stated. The directors may also adopt such by-laws, rules, and regulations for the government of said corporation and the management of its affairs and business as they may think proper, not inconsistent with the laws of this territory.

'Sec. 5. Nothing herein shall authorize the running of locomotives or cars propelled by steam, or to permit the cars of any other railroad company whatever to run along or upon the railway of this company hereby incorporated, and the said corporators, their successors or assigns, shall have the exclusive right for fifty years from the first day of January, A.D. 1867, to build, erect, and operate horse railways within the city of Omaha and five miles adjacent thereto; and the said corporation may purchase, hold, mortgage, and convey real estate for the interest or use of said company, whenever in the opinion of the directors thereof it is deemed advisable or needful so to do; provided, that at the end of fifty years the said roads and depots and other equipments shall revert to the city of Omaha.

'The first meeting of the corporators herein named shall be holden on the first day of May, A.D. 1867, at the Omaha National Bank, in said city of Omaha, and at that time books shall be opened for subscribers to the stock of said company under such regulations as said corporators may establish. This act shall be deemed a public act, and shall take effect and be in force from and after its passage: provided, that the charter may be amended whenever the legislature of the territory of Nebraska shall see proper.'

There is also an act, approved February 25, 1875, entitled 'An act to encourage the building of street railways in the cities of the state of Nebraska:'

'Be it enacted by the legislature of the state of Nebraska:

'Section 1. That any corporation organized for the purpose of building and operating a street railway in any of the cities of the state of Nebraska, and shall proceed to build and operate said railway within one year from the passage of this act, and shall within such time build and continue to operate at lease one mile of such railway, it being the first company so organized for the purpose of building a street railway in the city in which it proposes to operate the same, and shall have the exclusive right for twenty-five years from the date of its organizations to build, erect, and operate horse railways within the said city in which the said company have organized to erect and operate the same; and any such corporation shall have power to purchase, hold, mortgage, and convey real estate for the use and benefit of said company.

'Sec. 2. Any company organized, or which may hereafter be organized, and claiming the benefits of this act, shall never, in any case, charge more than five cents per trip for single passengers.

'Sec. 3. This act is not intended to deprive any company as aforesaid of any of its rights, under the general incorporation act of this state, but all the power, franchises, and privileges of whatever kind given by the said act shall be enjoyed in their full extent by any incorporation organized to build and operate a street railway as aforesaid.'

On the seventh day of June, 1867, the following act was passed:

'An act to amend section seventy-five of chapter twenty-five, entitled 'Incorporations,' of the Revised Statutes of Nebraska.

'Section 1. Be it enacted by the legislature of Nebraska, that section seventy-five of chapter twenty-five, entitled 'Incorporations,' of the Revised Statutes of Nebraska, the same being in words and figures as follows, that is to say: 'Sec. 75, Such incorporation shall be authorized and empowered to lay out, locate, construct, furnish, maintain, operate, and enjoy a railroad with single or double track, with such side tracks, turnouts, offices, and depots as shall be necessary between the places of the termini of the said road, commencing at or within, and extending to or into, any town, city, or village named as the places of the termini of said road, and construct branches from the main line to other towns or places within the limits of this territory,'-- be and the same is hereby amended so as to read as follows, that is to say: 'Sec. 75. Such corporation shall be authorized and empowered, and shall have the sole and exclusive right, as hereinafter provided, to lay out, locate, construct, furnish, maintain, operate, and enjoy a railroad, with single or double track, with such side tracks, turnouts, offices, and depots as shall be necessary between the places of the termini of said road, commencing at or within, and extending to or into, any town, city, or village named as the place of the terminus of said road, and for a distance of five miles on each side parallel with the said road, and at all points between places named as the termini thereof.'

'Sec. 2. This act to take effect from the day of its passage.'

On the seventh of February, 1871, an act was passed repealing the act last above quoted.

Geo. E. Prichett, J. M. Woolworth, Thurston & Hall and John H. Dillon, for complainant.

J. C. Courie, for defendant.

BREWER C.J.

The initial and important question is whether a cable tramway is within plaintiff's exclusive grant of a right to build, erect, and operate horse railways. If the grant were made to-day it could not seriously be contended that it was so included. There is such a clear and recognized distinction between horse railroads and cable roads that, applying the ordinary rules for the construction of legislative grants, neither kind of road would be included within a grant of the other. The contention, however, is that at the time of this grant cable roads were practically unknown; that the only known form of street railways was the horse railway; that the terms 'street railroad' and 'horse railroad' were in common parlance used to describe the same thing; that in construing the grant we are to place ourselves back to the time at which it was made, and these terms 'horse railroad' and 'street railroad' being then used interchangeably for the same thing, we are to suppose that the legislature meant by the use of one term all that it would have meant by the use of the other, and that therefore all that would to-day be included within either term was within the scope of the grant. The rule for the construction of legislative grants is well settled. They are to be construed against the grantee and in favor of the public; and nothing passes unless it is obvious that the intent was that it should pass. I do not mean that they are to be construed technically and narrowly so as to defeat the very purposes of the grant, but that, giving to language its ordinary meaning, nothing will be included unless obviously within the scope of such meaning.

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