State ex rel. Caldwell v. Lincoln St. Ry., No. 15,063.

CourtSupreme Court of Nebraska
Writing for the CourtPER CURIAM.
Citation114 N.W. 422,80 Neb. 333
PartiesSTATE EX REL. CALDWELL v. LINCOLN ST. RY. ET AL.
Docket NumberNo. 15,063.
Decision Date18 December 1907

80 Neb. 333
114 N.W. 422

STATE EX REL. CALDWELL
v.
LINCOLN ST. RY.
ET AL.

No. 15,063.

Supreme Court of Nebraska.

Dec. 18, 1907.



Syllabus by the Court.

[114 N.W. 422]

The charter of a street railway company, organized for the purpose of constructing a system of lines in a city of this state under Act Feb. 15, 1877 (Laws 1877, p. 135), must fix the termini of the road and state the street or streets through which it is proposed to construct and operate the same.

The consent of a majority of the electors of the city to the use and occupation of the streets over which the proposed road is to be constructed must be obtained before the construction is commenced; such consent to be given or withheld at an election called for that purpose.

The consent of the electors to the occupation of all the streets of a city by a street railway company, where no termini are mentioned in the notice of election, carries with it no right to the use of any street which is not used for the construction of the road within a reasonable time thereafter. To hold that such blanket consent, where no termini or route is submitted to the electors, confers on the company the right to the use and occupation of any of the streets which it might at any time thereafter select as best suited to its interest, would be awarding to a private corporation a power which the people, by their Constitution, have withheld from the Legislature of the state and from the municipal authorities where the streets are located.

An information in the nature of a quo warranto filed against a corporation by its corporate name admits the existence of the corporation. If the charge be that the corporation is exercising powers not given by its charter, the action proceeds against the corporation to oust it from the use of the usurped power; but, where it is claimed that corporate powers are being usurped by a body which has no corporate existence, then the action must be against the individuals who are usurping corporate rights.

The courts, in a proper case, will apply the doctrine of laches to a case in which the state is a party plaintiff. The state, like individuals, may be estopped by its acts or laches, and should not be allowed to oust a corporation

[114 N.W. 423]

of its rights and franchises, where for a long series of years it has stood silent and seen the corporation expend large sums in the acquisition of property and improvements made thereon under a claimed right so to do under its charter.

The city of Lincoln brought an action against a street car company to oust it from the possession of certain streets in which its tracks were laid, alleging that its only right in the street was derived from the purchase of the property and franchise of another company that had obtained the consent of the electors of the city to the use of its streets for railway purposes, that such consent was not transferable, and that the tracks of the company were an obstruction in the streets and constituted a public nuisance. On demurrer to this petition judgment went in favor of the defendant, which judgment is still in full force and effect. Held that, if it were conceded that the city represented the state in such action and that the state was bound by the judgment to the same extent as the city, still the force of the judgment as a bar or estoppel in a subsequent action brought by the state could extend no further than to define the rights of the company in the streets then occupied by its tracks; that being the only question litigated, and the right of the company to the use of other streets not being in issue.


Commissioners' Opinion. Department No. 1. Appeal from District Court, Lancaster County; Frost, Judge.

Quo warranto by the state, on the relation of James L. Caldwell, against the Lincoln Street Railway and the Lincoln Traction Company. Judgment for defendants, and relator appeals. Remanded, with directions to modify decree.

F. M. Tyrrell, Chas. O. Whedon, and J. M. Stewart, for appellant.

Clark & Allen, for appellees.


DUFFIE, C.

Section 1 of article 13 of our present Constitution, adopted in 1875, is as follows: “No corporation shall be created by special law; * * * but the Legislature shall provide by general laws for the organization of all corporations hereafter to be created. All general laws passed pursuant to this section may be altered from time to time, or repealed.” Section 2 of the same article is in the following words: “No such general law shall be passed by the Legislature granting the right to construct and operate a street railroad within any city, town, or incorporated village, without first requiring the consent of a majority of the electors thereof.” At the session of the Legislature held in 1877 an act was passed relating to the formation of street railway companies. Laws 1877, p. 135. The act, so far as necessary to an understanding of this case, is as follows:

“Section 1. Any number of persons may be associated and incorporated under the general laws of this state, providing for the creation of corporations for the purpose of constructing and operating a street railroad within any of the cities of this state, upon procuring the consent of a majority of the electors of any city as hereinafter provided.

Sec. 2. Every such corporation, previous to the commencement of any business except its own organization, must adopt articles of incorporation and have them recorded in the office of the county clerk of the county in which the city within which it is proposed to construct and operate such street railroad is situated, and must procure the consent of a majority of the electors of such city as herein provided.

Sec. 3. The articles of incorporation must fix the termini of such street railroad, and state the street or streets through which it is proposed to construct and operate the same.”

Section 4 provides for obtaining the consent of a majority of the electors of the city by submitting the question to the electors at an election to be held for that purpose, and requiring 10 days' notice by publication, which notice shall state the termini of such proposed street railroad and the street or streets through which it is proposed to construct and operate the same.

Section 5 provides for the holding of such election in the same manner and at the same places as the general city election, and that, if a majority of the votes cast shall be in favor of the construction and operation of such proposed street railroad, the council shall cause the city clerk to make out a certificate of the result, stating that the consent of a majority of the electors has been given to the construction and operation of such street railway, which certificate shall be delivered to the chief officer of the railroad company, who shall cause the same to be recorded in the office of the county clerk where the articles of association of such street railway company are recorded, and in the same book, and such certificate shall be prima facie evidence of the facts stated therein and thereupon such street railroad company shall be authorized to proceed and construct and operate such street railroad as described in its articles of association, or any portion thereof, subject to such rules and regulations as may be established by ordinances of the city.

On March 9, 1885, articles of incorporation of the Lincoln Street Railway Company were filed and recorded in the office of the county clerk of Lancaster county, which articles provided for certain termini of the railway and the streets through which it was proposed to construct the same. The streets mentioned in the articles are from First to Twenty-Seventh streets, both inclusive, running north and south through the city, and from A to W streets running east and west, and other streets, which, as we understand, included all the then established streets of the city. The articles also provided for termini of the company “at such other points within five miles of the corporate limits, of the city of Lincoln as the company may see fit to build to.” An

[114 N.W. 424]

election was thereafter held, the notice of which described the streets of the city through which it was proposed to construct the road as described in the articles of incorporation, but which omitted to give the termini of the proposed road, and a certificate was duly issued to the street railway company certifying that a majority of the votes cast were in favor of the proposition. Some time in January, 1890, the Lincoln Electric Railway Company was incorporated and filed its articles in the office of the county clerk of Lancaster county. The third paragraph of these articles, after designating certain termini of the lines of the company within the corporate limits of the city, contains a clause providing for other termini “at such other points in the vicinity of Lincoln as it may be advisable to select for such termini lines,” and in the same paragraph is a provision for constructing its tracks in all the streets of the city then established, running both east and west and north and south through the city. July 1, 1887, the Standard Street Railway Company was incorporated for the purpose of constructing a street railway in the city of Lincoln. The third article provides as follows: “The termini of the lines of such company are fixed at or near the several railway depots in the city of Lincoln, and at or near University Place, and at such other points in the city of Lincoln and vicinity for a radius of five miles outside the limits of said city of Lincoln as it may deem advisable to select.” The streets through which it is proposed to construct its line of road are, as we understand, all the streets of the city then laid out or existing, running both north and south and east and west through the city. March 19, 1887, the Lincoln Rapid Transit Company was incorporated; the third paragraph of the articles providing for termini at the several railroad depots, at or near the intersection...

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38 practice notes
  • State of Iowa v. Carr, 2,936
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 20, 1911
    ...F. 267] State of Wisconsin v. Janesville Water Power Co., 92 Wis. 496, 66 N.W. 512, 515, 32 L.R.A. 391; State v. Lincoln Street Ry. Co., 80 Neb. 333, 114 N.W. 422, 427, 14 L.R.A. (N.S.) 336; State v. School District No. 108, 85 Minn. 230, 88 N.W. 751; Attorney General v. Delaware & Bound Br......
  • State ex rel. Jordan v. Mayor and Commissioners of City of Greenwood, 28339
    • United States
    • Mississippi Supreme Court
    • March 31, 1930
    ...87 Ind. 171; State v. Alexander, 129 Iowa 538, 105 N.W. 1021; State v. Westport, 116 Mo. 582, 22 S.W. 888; State v. Lincoln R. R. Co., 80 Neb. 333, 114 N.W. 422, 14 L.R.A. (N.S.) 336; State v. College View, 88 Neb. 232, 129 N.W. 296; State v. McLean County, 11 N.D. 356, 92 N.W. 385; Commonw......
  • Samsell v. State Line Development Co., No. 12840
    • United States
    • Supreme Court of West Virginia
    • May 15, 1970
    ...222 Minn. 312, 24 N.W.2d 244; State v. Horr, 165 Minn. 1, 205 N.W. 444; State ex rel. Caldwell v. Lincoln Street Railway Company, 80 Neb. 333, 114 N.W. 422; State ex rel. Upper Scioto Drainage and Conservancy District v. Tracy, 125 Ohio St. 399, 181 N.E. 811; Powell v. Board of Commissioner......
  • State ex Inf. McKittrick v. Mo. Utilities Co., No. 34073.
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1936
    ...38 Pac. 990; State ex rel. Attorney General v. Janesville Water Co., 32 L.R.A. 391, 92 Wis. 496; State ex rel. v. Lincoln St. Ry. Co., 80 Neb. 333; Commonwealth ex rel. Attorney General v. Bala T.P. Co., 153 Pa. 47; High on Extraordinary Remedies, sec. 621; State ex rel. Sikeston v. Pub. Se......
  • Request a trial to view additional results
36 cases
  • State of Iowa v. Carr, 2,936
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 20, 1911
    ...F. 267] State of Wisconsin v. Janesville Water Power Co., 92 Wis. 496, 66 N.W. 512, 515, 32 L.R.A. 391; State v. Lincoln Street Ry. Co., 80 Neb. 333, 114 N.W. 422, 427, 14 L.R.A. (N.S.) 336; State v. School District No. 108, 85 Minn. 230, 88 N.W. 751; Attorney General v. Delaware & Bound Br......
  • State ex rel. Jordan v. Mayor and Commissioners of City of Greenwood, 28339
    • United States
    • Mississippi Supreme Court
    • March 31, 1930
    ...87 Ind. 171; State v. Alexander, 129 Iowa 538, 105 N.W. 1021; State v. Westport, 116 Mo. 582, 22 S.W. 888; State v. Lincoln R. R. Co., 80 Neb. 333, 114 N.W. 422, 14 L.R.A. (N.S.) 336; State v. College View, 88 Neb. 232, 129 N.W. 296; State v. McLean County, 11 N.D. 356, 92 N.W. 385; Commonw......
  • Samsell v. State Line Development Co., No. 12840
    • United States
    • Supreme Court of West Virginia
    • May 15, 1970
    ...222 Minn. 312, 24 N.W.2d 244; State v. Horr, 165 Minn. 1, 205 N.W. 444; State ex rel. Caldwell v. Lincoln Street Railway Company, 80 Neb. 333, 114 N.W. 422; State ex rel. Upper Scioto Drainage and Conservancy District v. Tracy, 125 Ohio St. 399, 181 N.E. 811; Powell v. Board of Commissioner......
  • State ex Inf. McKittrick v. Mo. Utilities Co., No. 34073.
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1936
    ...38 Pac. 990; State ex rel. Attorney General v. Janesville Water Co., 32 L.R.A. 391, 92 Wis. 496; State ex rel. v. Lincoln St. Ry. Co., 80 Neb. 333; Commonwealth ex rel. Attorney General v. Bala T.P. Co., 153 Pa. 47; High on Extraordinary Remedies, sec. 621; State ex rel. Sikeston v. Pub. Se......
  • Request a trial to view additional results

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