may appear from the facts detailed that the law has been complied with." Lewis. Em. Dom. § 413.

It must appear in the record of proceedings establishing a road, that the commissioners were sworn before they viewed the way. The fact that it appears that they were afterwards sworn will not avail. Breckenridge v. Ward, 1 T. B. Mon. (Ky.), 57. But in an early case in Iowa it is held that the acts of road viewers are not void if they omit to state in their report that they had been duly sworn: such statement not being required. The official certificate, or the testimony of the officer who administered the oath required by law to road viewers, is more authentic than the mere statement in the report of such viewers, that they had been duly sworn. Dollarhide v. Muscatine County, 1 Greene (Iowa), 158.

A report of commissioners appointed to assess the value of lands taken for a railroad, which fails to show that half or a majority of them met at the time and place ordered before entering on their duties and were properly sworn as required by law, is not sufficient, and it is error to confirm such a report. Virginia & T. R. Co. v. Lovejoy, 8 Nev. 100.

Where the opening of a road is contested, and the person contesting it is made a party, and appeals to the circuit court, where evidence in heard, and the judgment of the county court establishing the oath is affirmed, held that in such case it is not necessary that the record of the county court, should show that the jury of view was sworn. Patton v. Clark, 9 Yerger (Tenn.), 268.

In Bohlman v. Green Bay & M. R. Co., 40 Wis. 157, what the rule would be if the records were silent as to the oath taken by the commissioners of appraisal was left undecided.

Waiver of Failure to take Oath or Defective Oath.—It is not a valid objection to a report of road commissioners, laying out a highway, that one of them had not taken the oath of office, at the time of the issuing of the notices of the hearing, providing the party making the objection appeared at the hearing, without objection at the time. Towns v. Stoddard, 30 N. H. 23. And an objection that a jury in proceedings to condemn land for a railroad were not sworn in the manner directed by the statute, comes too late after a verdict, where the party was present when the jury were sworn and made no objection at the proper time. Rockford, R. I. & St. L. R. Co. v. McKinley, 64 Ill. 339. If the oath is not taken until the time for the hearing arrives this objection must then be made or it will be considered as waived; it comes too late after the commissioners make their report. Inhabitants of Raymond v. Cumberland County, 63 Me. 110. Where the certificate of the oath of the commissioners is returned to the office of the clerk of the court as required by statute, this is constructive notice to all parties of all facts contained in the certificate, and any party who would object to the qualifications of the commissioners must do so before the hearing, or his objection will be held to be waived. Wentworth v. Farmington, 51 N. H. 128.

Where one of the road commissioners did not take the official oath till after the notices were issued, but did take it before the hearing, and the parties appeared, and, without objection, proceeded to the hearing with a full knowledge of the fact; but after an adverse report, excepted and moved that the report be rejected on that account-Held, that they must be regarded as having waived the exception by the appearance, and that the motion must be overruled. Petition of the Town of Gilford, 25 N. H. 124.

THOMAS & HOUSTON Electric Co.

ย.

SIMON.

(Oregon Supreme Court, Nov. 17, 1890.)

Common Carriers-Classification-Public Use.-Common carriers are classified as carriers of goods and carriers of passengers, because their employment is quasi public, and the public have an interest in the faithful performance of their duties,

Eminent Domain-Authority of Electric Railway to Condemn Land.-The provisions of the statute for the condemnation of a right of way have little or no reference to corporations operated as street railways propelled by electricity or horse power for local convenience, and the transportation of passengers, and do not authorize such to condemn private property for a right of way.

APPEAL from Multnomah Circuit Court.

Dolph, Bellinger, Mallory & Simon, for appellant.
Stott, Boise & Stott, for respondent.

Case stated.

Plaintiff's

contention.

LORD, J.-This is an action to condemn a right of way for a street and suburban railway operated for the carrying of passengers. A demurrer was filed to the complaint which was sustained by the court below, and the plaintiff refusing to proceed, judgment was rendered therein, from which this appeal is taken. The contention of the plaintiff is that our statute authorizing the condemnation of land for a right of way contemplates the exercise of such power as much by street and suburban railways propelled by horse power or electricity as railroads where cars are propelled by steam. The argument is that 3239, Hill's Code, which provides that a corporation organized for the construction of "any railway" may appropriate land for a right of way, by the use of the phrase "any railway," ex vi termini, includes street and suburban railway corporations organized to transport passengers only, and propelled by horse power or electricity, as well as railroads authorized to transport passengers and freight, and propelled by steam; that the terms of the statute, viewed as a whole, indicates and imports that it was intended to authorize railway corporations to condemn lands for the use of their road, whether they were organized to carry passengers or freight, or both, or whether they were propelled by steam, or other power. To strengthen the construction that it is not necessary that the railway corporation, however propelled, should

be formed to carry passengers and freight to entitle it to exercise the power of eminent domain, and condemn lands for its use, the language of § 3236 is relied upon as showing that this distinction is not observed with reference to navigation corporations authorized to construct portage railways, wherein its reads: "For the purpose of transporting freight or passengers across any portage on the line of such navigation in like manner and with like effect as if such corporation had been formed for such purpose."

plaintiff's position.

To this it is answered that every railway corporation for the construction of a railroad under the statute for the condemnation of lands is a common carrier, and that Answer to such a statute, being in derogation of common right, is not to be extended by implication. Section 3254 of the statute, authorizing the condemnation of land for a right of way, provides: "Every corporation formed under this chapter for the construction of a railway as to such road shall be deemed common carriers, and shall be entitled to collect and receive a just compensation for transportation of persons or property over such road." The argument is that as a common carrier of goods for hire, and while a common carrier, it may carry passengers and combine the two employments of carrying goods and passengers, as is almost universally done by railroads, yet, as a corporation for the construction of a railway, it cannot be deemed a common carrier unless it is formed to carry goods and passengers; that the legislature in delegating the right of eminent domain intended only that such railroads should be entitled to exercise it as were common carriers of freight and passengers. Hence a corporation could not exercise the right of eminent domain in the construction of a railway organized to transport passengers only, and not freight. Much of this argument is based on the technical definition of a common carrier as one who undertakes for hire to transport the goods of such as choose to employ him from place to place, so that before a corporation can be deemed a common carrier it must of necessity include in its business the transportation of goods or freight from place to place. There are usually in a railway act some sections which have the effect of putting the railway company on the footing of common carriers, (2 Rob. Pr. 524); but, whether made so by general statute, or by their charters, railroad companies are held to be common carriers, (2 Am. & Eng. Ency. Law, 781). And it is said when they are made so by the express provision of a statute, such provision will be merely declaratory of the law as it already existed. Hutch. Carr. § 67. A common

When railroads are

common carriers.

carrier is such because his duties partake of a public character. "To bring a person," says Judge STORY," within the description of a common carrier, he must exercise it as a public employment. He must undertake to carry goods for persons generally, and must hold himself out as ready to engage in the transportation of goods for hire, as a business, and not as a casual occupation pro hac vice." Story, Bailm. $495. To constitute one, then, a common carrier, it is necessary that he should hold himself out as such. A carrier of passengers who undertakes to carry all persons who apply to him for transportation is engaged in a public employment, and is a public or common carrier of passengers. "A common carrier of passengers," says Judge THOMPSON, "is one who undertakes, for hire, to carry all persons indifferently who may apply for passage. Railroad companies, the owners of ships, ferries, omnibuses, street cars, and stage coaches are usually common carriers of passengers." Thomp. Carr. 26, note 1. It is true that carriers of passengers are not common carriers as to the persons of those whom they carry. But common carriers are classified as carriers of goods and as carriers of passengers. The reason is their employment is quasi public, and the public have an interest in the faithful discharge of their duties. "Every common carrier," said MULKEY, J., "has the right to determine what particular line of business he will follow. If he elects to carry freight only, he will be under no obligation to carry passengers, and vice versa. So, if he holds himself out as a carrier of a particular kind of freight, or of freight generally, prepared for carriage in a particular way, he will only be bound to carry to the extent and in the manner proposed. He will, nevertheless, be a common carrier." Wiggins Ferry Co. v. East St. Louis U. R. Co., 107 Ill. 451, 20 Am. & Eng. R. Cas. 9. A common carrier, then, may be either a carrier of passengers or freight, or both. The argument, then, that the plaintiff is not the kind of corporation authorized to exercise the power of eminent domain because it is only a carrier of passengers, and not of freight, would not deprive the plaintiff of its character as a common carrier, and, as such, to be deemed within the statute. This would result in giving to the statute a construction which would include both classes of carriers, but not necessarily that such carriers should combine both employments. It might be engaged in carrying passengers or freight, or both, and still be deemed a common carrier.

But it is apprehended that the safer way to determine whether the word "railway" or "common carrier" as used in the statute is to be confined to railroads operated by steam or railroads operated by other power, such as street railways,

Meaning of act derived

from context and intent.

is to look at the context and intent, and in that way ascertain whether the plaintiff is such corporation organized for the construction of a railway as is contemplated by the statute to be invested with the power to condemn lands for the use of its road. While it is true that the word "railway" may include railroads operated by steam as well as those whose cars are propelled by some other power, yet it is common knowledge that such corporations as belong to the latter class are usually operated as street railways for local convenience. The plaintiff is an electric company and as such we know belongs to the class of corporations operated as street railways for the benefit of the local public. It was so understood at the argument, and the action is described as one to condemn "a right of way for a street and suburban railway for the carrying of passengers." I take it, then, that we are to consider the plaintiff as belonging to this class in determining whether it is such a corporation for the construction of a railway as is intended by the statute to be invested with the power to exercise the right to eminent domain. The statute provides (3239) that “a corporation organized for the construction of any railway, etc., (Id. § 3240)," may appropriate so much of said land as may be necessary for the line of such road, not exceeding sixty feet in width, besides a sufficient quantity for workshops, etc., " and in case of a railway a sufficient quantity of such land in addition to that before specified in this section for necessary side tracks, depots, water stations, cuttings, embankments," etc., "and such railway company shall have the right to cut down any standing timber in danger of falling upon its road," etc., "may cross, intersect, join and unite with any other railway," etc., " and may make the necessary turnouts, sidings, and switches, and other conveniences," etc. (Id. § 3246), “and all streams and other waters on the line of such road shall be safely and securely bridged except," etc., and (Id. § 3254), "every corporation formed under this act for the construction of a railroad as to such road shall be deemed a common carrier," etc. Few, if any, of these provisions have any reference to the class of corporations to which the plaintiff belongs, and was scarcely intended to apply to them. They contemplate and authorize a railway to be constructed where none was built before, through the country, requiring bridges, cuttings, fillings, and embankments, and sometimes tunnels through hills and mountains, and, also, the building of depots and stations for the accommodation of freight and passengers, of engine houses, repair shops, switches, and turnouts to enable the corporation to properly conduct its business. A railroad