therefore of opinion that said act must stand | might be necessary to carry the same into efunless unconstitutional on other grounds. fect. Section 2 provided that said station It is next contended that as the evidence should be erected and kept in repair at the discloses appellant was incorporated under sole expense of one of the companies and for the laws of the state prior to the passage of the taking of the land by that corporation for the act, and thus acquired its right of way the purpose. Section 3 provided for the use and station grounds in Durant, that certain of the station by all of said companies, the citizens of Durant have agreed to give it a others severally paying said company erectbonus of $10,000 to build to that point, which ing said station a reasonable rent therefor, said bonus is to be used to construct there a which, if not agreed upon, should be deterpassenger depot for the erection of which sta- mined by the railroad commissioners on petition grounds were purchased, that the order tion of either corporation. Section 7 directof the commission based on said act will ed, among other things, that, after the comcompel it, in order to extend its tracks to pletion of the station, two of the companies the union depot, to abandon said right of should, respectively, discontinue their presway and station grounds and deflect its main ent location of their railroads in portions of line at a point in the north part of said the city of Worcester. It is unnecessary to town near Elm street, and run through two further recite the provisions of said act. In elevators, and grade an additional roadbed affirming the report locating the union deand curve its track so acutely as to cause de- pot the court said: "Proof is offered that to lay in handling its trains, all at a cost to it extend the several railroads named to a unof not less than $50,000, that, ion passenger station east of Grafton street therefore, the act is in violation of article 5 would make it necessary for each of them to of the Constitution of the United States and extend its tracks a great distance amounting sections 23 and 24 of article 2 of the Consti- in the aggregate to many thousand feet, and tution of the state of Oklahoma, which deny at a cost amounting in the aggregate to sevthe right of any one to take private property eral hundred thousand dollars, and that for private or public use without just com- these tracks must be laid through the heart pensation, and that provision of the national of a populous city, and crossing over many Constitution (section 1 of article 14) which highways, and lands must be taken now beprovides that no state shall make or enforce longing to private persons. * For any law which shall deny to any person with- these reasons and some others to be advertin its jurisdiction the equal protection of the ed to hereafter, both the validity of the act, law." This was, in effect, the contention and of the proceedings under it, are denied, raised in Mayor, etc., v. Norwich & Worcest- and it is contended that the report ought not er Railroad Co. et al., 109 Mass. 103. In to be accepted. On the other hand, the petithat case the mayor and aldermen in the tioners contend that the act is valid under city of Worcester, the Boston & Albany Rail- the provisions of Gen. St. c. 68, § 41, which road Company, the Worcester & Nassau Rail- are similar to prior statutes affecting all road Company, and the Boston, Barre & Gard-railroads that have been chartered since ner Railroad Company petitioned the Su- March 11, 1831, and subjecting them to alpreme Court to appoint commissioners to de- teration, amendment, or repeal at the pleastermine the location in the city of Worcester ure of the Legislature, and that the proceedof a union passenger station provided for by ings under the act are valid." And sustainSt. 1871, c. 343, entitled: "An act to pro-ed the latter contention. The syllabus reads: vide for a union passenger station and for the removal of railroad tracks from certain public ways and grounds in the city of Worcester." Section 1 of the act substantially provided that the Boston & Albany Railroad Company, the Worcester & Nassau Railroad Company, the Boston, Barre & Gardner Railroad Company, the Providence & Worcester Railroad Company, and the Norwich & Worcester Railroad Company might and should unite in a station in the city of Worcester for accommodations; that the Supreme Judicial Court on application of either of said The doctrine laid down in this case is citcorporations, or the mayor and aldermen of ed with approval in Northern Pac. Railroad the city of Worcester, either in term time or v. Dustin, 142 U. S. 492, 12 Sup. Ct. 283, 35 vacation, after notice, should appoint three L. Ed. 1092. S. A. & A. P. R. R. Co. v. State, members who, after due notice to and hear- 79 Tex. 264, 14 S. W. 1063, was an appeal ing said parties, shall determine the precise from a money judgment recovering a penalty location of said station within certain limits against said railroad company for a failure (describing them), the report of whom being to establish a depot at its crossing with the returned to and accepted by the court should Galveston, Harrisburg & San Antonio Railbe binding on said parties, and the court road as prescribed by an act approved May "St. 1871, c. 343, requiring certain railroad corporations to unite in a passenger station in the city of Worcester, at one of two specified places, to be determined by commissioners appointed by this court, to extend their tracks in that city to the union station, and, after the extension, to discontinue portions of their present locations, is constitutional and valid, being a reasonable exercise of the right reserved to the Legislature to amend, alter, or repeal the charters of those corporations." question was in violation of sections 1 and 2 | road is crossed or separately by each railof article 10 of the Constitution, the first of which provided that: "Every railroad company shall have a right with its road to enter, intersect, connect with, or cross another railroad; and it shall receive and transport each of the other's passengers, tonnage and cars, loaded or empty, without delay or discrimination, under such regulation as shall be prescribed by law." But the court, in effect, held that the regulation prescribed by law for the purpose of carrying out that section might very properly extend to just such matters as were embodied in the act in question, and that said act simply prescribed more fully than did former laws what accommodations shall be furnished at such places. To the further contention that the act in question did not apply to appellant because it had constructed its depot in the town of Flatonia before the act was passed, that it owned the lot upon which its depot was established and that to remove said depot therefrom to the point of intersection or to erect an additional one there would materially damage the value of said lot, besides costing defendant at least $300 or $400, the court said: "The act does not require it to remove that depot, nor does it seek to impose any penalty because it was there erected and is there still maintained, nor does it provide a penalty for a failure to erect and maintain a depot at point of intersection prior to the time the act took effect. It matters not how many depots may have been erected and maintained by appellant at other points, for this cannot excuse it for not complying with the act in question; nor can it be said that the property of appellant or of any citizen of Flatonia, within the meaning of the Constitution, will be taken, damaged, or destroyed by the erection and maintenance of all the houses and accommodations at point of intersection which the act requires. There certainly never was a contract between appellant and the state that the former should not be required, whenever the Legislature deemed it necessary, to erect at the intersection of its road with another such buildings as were necessary for the convenience and comfort of those it serves as a public carrier of passengers." And affirmed the judgment of the trial court. And this for the reason we think, although the opinion does not so state, that the act was a valid exercise by the Legislature of the police power of the state. State v. Kansas City, etc., Ry. Co. (C. C.) 32 Fed. 722, was a suit to recover a penalty for the violation of an act passed by the Legislature of Missouri in 1881 (Laws 1881, p. 77), requiring every railroad company in the state engaged in the transportation of passengers or property at all crossings and intersections of other roads at the same grade to erect, build, and maintain, either jointly with the railroad company whose road company, a depot, etc., under penalty of a forfeiture of a sum certain for failure so to do. On demurrer to each count of the petition, the court said that the first question to be determined was the constitutionality of the act; that such acts when sustainable were sustainable under the police power of the state; that the act in question was a valid exercise of that power, and that: "It is no longer doubted that the Legislature may require that trains shall stop at every railroad crossing. Public safety justifies, if it does not compel, this. If the Legislature may require a stop, why may it not require a stop of sufficient length to permit passengers to get on and off, and with that require suitable depot privileges? It will be noticed that the statute does not attempt to prescribe the size or expense of these depots. It leaves that to the discretion of the railroad companies, simply requiring that they shall be sufficient to comfortably accommodate passengers at that point. It would seem to be a reasonable exercise of the police power to compel railroad companies to furnish suitable accommodations for passengers at all places where they receive and discharge them from their trains. Public welfare, if not public safety, justifies this." And held the act to be constitutional and overruled the demurrer. We think that the holding in Mayor, etc., v. Norwich, etc., Railroad Co., supra, is a complete answer to appellant's next contention, which is "that it is not competent for any Legislature to compel a railroad to turn over its property to its competitors or what is the same thing, enter into a union depot arrangement with its competitors"; for the reason that in that case the Legislature compelled just such an arrangement and held the act constitutional on the ground, as stated, supra, in effect, that the same was a reasonable exercise of the right reserved to the Legislature to amend, alter, or repeal the charters of the corporations in interest. As a like reservation exists in this jurisdiction (Const. art. 9, § 47), we are of opinion the exercise of the power may be justified on a like ground or on the ground, as stated by Judge Brewer in State v. Kansas City, etc., Ry. Co., supra, that the same is a valid exercise of the police power of the state. Dewey v. Railroad, 142 N. C. 392, 55 S. E. 292, is also squarely against appellant's contention. In that case the statute under construction was Revision 1905, § 1097, subsec. 3, which empowered and directed the Corporation Commission to require, when practicable, and when the necessity of the case and the judgment of the commission demanded it, any two or more railroads which then or might thereafter enter any city or town within the state to have a common or union passenger depot for the security, convenience, and ac commodation of the traveling public, and to would and could have introduced testimony to the effect that such an order would be unreasonable and unjust, in that it would entail an extra expense upon the plaintiff in error." unite in the joint expense of erecting, con- | ger' depot be required at Durant, Okl., it structing, and maintaining said union passenger depot, etc. In passing on the act the court said: "The power of the Legislature to enact a statute of this character has been established by numerous and well-considered decisions of this and other courts of supreme jurisdiction, and is no longer open to question. Industrial Siding Case, 140 N. C. 239 [52 S. E. 941]; Corporation Commission v. Railroad, 139 N. C. 126 [51 S. E. 793], and authorities cited." As near as we can catch the next contention, it is that as appellant, pursuant to the order, will "be compelled to enter into some sort of a contract with the Missouri, Kansas & Texas Railway Company relating to the joint use of its depot at Durant," and, as the act only provides, "in the event the railroads fail to agree, as to compensation to be paid for the construction and maintenance of the depot, the commission may fix that amount," said commission was without power to compel the Missouri, Kansas & Texas Railway Company to enter into such a contract, but, if given by the act, it would be unconstitutional on its face and constitute a taking of the property of said company with out due process of law and without compensation. To this it is sufficient to say that the order is not a command to operate jointly the depot already there, but to operate a joint passenger depot on the present site of that depot, which would seem to contemplate that either a joint use of the old or the construction and maintenance of a new depot on that site would satisfy the order. That being the case, the question raised is purely hypothetical; but, should the necessity arise for a contract between appellant and the Missouri, Kansas & Texas Railway Company, relating to their joint use of the old depot, it seems, the commission being authorized by said act to make the order, there would be carried with it the power to do what is reasonably necessary to make the same effective. Griffin v. Southern Ry. Co., 150 N. C. 312, 64 S. E. 16; Haynes v. Mich., etc., Ry. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410; Dewey v. Railroad, 142 N. C. 392, 55 S. E. 292. Assailing the order which appellant concedes to be prima facie just and reasonable, it is equally untenable to insist: "There is another point in this matter which should not be overlooked. In the complaint of the complainants it will be observed they ask for a 'union' depot and the act of May 20, 1908, provides for a 'union' depot. There is nothing said in the complaint, nor is there anything said in the act of May 20, 1908, providing for a 'union passenger' depot. At the trial of this case evidence was introduced on the theory that a 'union' depot was desired, and had the plaintiff in error known that the commission was going to make an For the reason that we can see no injustice or unreasonableness in an order resulting in the holding of the commission after a full hearing, in effect, that, although petitioners leveled their testimony at and attempted to show the necessity of a union depot for both freight and passengers at Durant (if they did), a union passenger depot only was necessary, it cannot be said that the order is unjust or unreasonable because petitioners got less than they called for. If appellant was surprised at the action of the commission in making the order for a union passenger depot when, in effect, a union freight and passenger depot was petitioned for, because of which it was prevented from showing the order as entered to be unjust and unreasonable "in that it would entail an extra expense upon" appellant, it should have followed the practice indicated in St. L. & S. F. Ry. Co. v. Williams, 25 Okl. 662, 107 Pac. 428, by filing a motion in due time before the commission setting forth facts sufficient to show surprise, that the order as made was unjust and unreasonable, in that it had not been given sufficient opportunity to meet the issue upon which said order was entered, that it could adduce testimony to that effect if given opportunity so to do, and have asked a continuance of the hearing. Failing in this, appellant has no just ground for complaint. But what appellant contends to be the "most oppressive result" of this order is that the $10,000 bonus subscribed by the people of Durant payable when the work is started on its proposed depot will be lost and never be payable unless the order is set aside. This loss is not wholly uncompensated for. It was testified by Mr. Durant, and undisputed: "I will state in this connection that a union depot can be maintained at less expense than you can maintain three depots. There is no railroad depot in the town of Durant that can be maintained with less than seven men. And by having a union depot it is economical for both of the roads. The Missouri, Oklahoma & Gulf proposes to build a $10,000 depot in the town of Durant. I, as a citizen of the state, don't believe there is any necessity for any such expensive depot at that town at this time. It would be a useless expense on the part of the railroad that the public would have to pay for, and, unless there was some absolute necessity for it, I don't believe they ought to build it. Q. Your idea is that the depot that is there affords sufficient facilities for these three roads, and that you simply desire that they use at least for the time being, until conditions possibly change in 8 Am. & Eng. En. of Law, 385; R. R. Commissioners v. Portland &c. R. Co., 63 Me. 269, 18 Am. Rep. 208; Fitchburg R. R. Co. v. Grand Junction R. &c. Co., 4 Allen (Mass.) 198. All the Justices concur, except WILLIAMS, J., not participating. (29 Okl. 684) CLEVELAND TRINIDAD PAVING CO. v. The Supreme Court will not decide abstract or hypothetical cases disconnected from the granting of actual relief, or from the determination of which no practical relief can follow. 19.*] [Ed. Note.-For other cases, see Appeal and Action by the Cleveland Trinidad Paving Company against J. I. Wood, County Treasurer. Judgment for defendant, and plaintiff brings error. Dismissed. Fuller & Porter and D. C. Westenhaver, for plaintiff in error. Robert Tarter, Co. Atty., for defendant in error. roads? A. Yes, sir; until that depot be- | Ed. 630; Wisconsin &c. Ry. Co. v. Jacobson, comes inadequate, and then that question 179 U. S. 287, 21 Sup. Ct. 115, 45 L. Ed. 194; can be taken up later and passed on." From which it appears that the loss of the bonus would only have the effect of relieving appellant of the necessity of expending it on the erection and maintenance of a superfluous structure, and put it to the inconsiderable expense of maintaining a joint force in the joint depot already there, and of paying a reasonable rent for the use of one-third thereof. In view of all the testimony and especially that of R. P. Bowles, where, speaking to the safety of the public, he said, "Yesterday afternoon the Flyer, what is known as the Flyer, 'Katy Flyer,' same south and No. 2 going north and the Missouri, Oklahoma & Gulf passenger train, all three of them came in at the same time. While they were there, the local freight train was on the side track switching cars back and forth on this merchandise track. Now, had the Missouri, Oklahoma & Gulf a depot where they propose to build one, the passengers coming in on either one of these other trains it would be impossible for them to have gotten over to that had the schedule been so arranged that they would have departed as soon as these other trains got in. There was also a conglomerated mess of passenger trains there, and it would have been dangerous to have tried to have gotten to where they propose building the Missouri, Oklahoma & Gulf depot. Now, the principal business portion of the town is on the west side of the track, and, by having the depot on that side, you avoid the track crossings, and you eliminate a whole lot of trouble there. Quite frequently I have seen women come in there with perhaps four or five small children, and oftentimes come in there after night, and to have to go from where the depot is now to the one they propose to build would mean an exposure to trains, and it would be dangerous for them to undertake to go back and forth. A great many people in traveling are not thoroughly up on what to do. They feel timid in asking any one, especially women, and they will take chances quite frequently not knowing what the danger is rather than ask any one. I have seen a great many incidents of this kind. I saw one person killed because they didn't make any inquiry in trying to going the case to this court has consumed the across one track. Of course, those things may never happen, and they may happen the first day. In order to avoid that and for the future protection of our town, I believe it would be the best thing to have a union depot"-we believe the order complained of is just and reasonable, and for that reason the same is affirmed. See Detroit &c. Ry. v. Osborn, 189 U. S. 383, 23 Sup. Ct. 540, 47 L. Ed. 860; Northern Pac. Ry. Co. v. Minn. ex rel., 208 U. S. 583, 28 Sup. Ct. 341, 52 L. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes KANE, J. There are two questions presented and argued by counsel in the foregoing proceedings which may be stated as follows: (1) Is the date for sale of property delinquent September 1, 1910, for nonpayment of special assessments, the month of November, 1910, or the month of November, 1911? (2) If such date is the month of November, 1910, can the county treasurer now that such date is passed be required by mandamus to select a new date and proceed to advertise and sell? The court below refused to issue the writ, and the plaintiff in error seeks to have this order reviewed by the Supreme Court. It seems to us that the questions involved have now become hypothetical, and no substantial benefit can accrue to either party by a decision by the Supreme Court. The time necessarily consumed in perfecting an appeal and present period between the dates contended for by the respective sides. It is conceded that the treasurer intends to sell in November, 1911, and, as that time is now upon us, it is apparent that the questions of law presented have become entirely academic. It has been held by this court in a great many cases, the latest of which is Edwards et al. v. Welch, 116 Pac. 791, that "the Supreme Court will not decide abstract or hypothetical cases disconnected from the granting of actual relief, or from the determination of the defendant in error filed a motion, which which no practical relief can follow." The appeal is dismissed. All the Justices concur, except DUNN, J., absent and not participating. 29 Okl. 683) BANK OF TAFT v. THOMPSON et al. (Supreme Court of Oklahoma. Nov. 14, 1911.) (Syllabus by the Court.) APPEAL AND ERROR (8 773*)-DISMISSAL FAILURE TO FILE BRIEFS. Dismissed for failure to file briefs within the time limited by rule 7 of the Supreme Court (95 Pac. vi). [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3104-3110; Dec. Dig. § 773.*1 shows service upon the attorneys for plaintiffs in error, asking that the appeal be dismissed on account of failure to comply with rule 7 of this court (20 Okl. viii, 95 Pac. vi), requiring the plaintiff in error to prepare and serve briefs upon the defendant in error within 40 days after filing the petition in error. This appears not to have been done. The appeal is therefore dismissed. Leavitt et al. v. Commercial Nat. Bank, 26 Okl. 164, 109 Pac. 71. All the Justices concur. BRYAN v. SULLIVAN. (29 Okl. 686) Error from District Court, Muskogee (Supreme Court of Oklahoma. Nov. 14, 1911.) County; John H. King, Judge. Action between the Bank of Taft and William Thompson and Walter Dills. From the judgment, the Bank of Taft brings erгог. Dismissed. (Syllabus by the Court.) APPEAL AND ERROR (§ 19*) — DISMISSAL GROUND-WANT OF ACTUAL CONTROVERSY. Abstract or hypothetical cases, disconnected from the granting of actual relief, or from the determination of which no particular result Carl Pursel, for plaintiff in error. Benj. can follow other than the awarding of the costs Martin, Jr., for defendants in error. KANE, J. This cause comes on to be heard upon motion of the defendants in error to dismiss the appeal, for the reason that the plaintiff in error has failed to observe rule 7 of this court (95 Pac. vi) in not filing briefs within the required time. An examination of the record shows that the plaintiff in error is in default in regard to filing briefs, although the time for doing so has expired. The motion to dismiss must be sustained. All the Justices concur, except WILLIAMS, J., absent. (29 Okl. 685) of the appeal, will not be decided by this court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 63-80; Dec. Dig. § 19.*] WILLIAMS, J. On February 1, 1910, the plaintiff in error, as plaintiff, obtained the issuance of a temporary injunction out of the district court of Comanche county, (Supreme Court of Oklahoma. Nov. 14, 1911.) which on the 7th day of February, 1910, was BRUCE et al. v. KETCHAM. (Syllabus by the Court.) APPEAL AND ERROR (8 773*) - DISMISSAL FAILURE TO FILE BRIEFS. Same as that in Leavitt et al v. Commercial National Bank, 26 Okl. 164, 109 Pac. 71. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. 773.*] Error from District Court, Muskogee County; J. H. King, Judge. Action between A. M. Bruce and another and H. E. Ketcham. From the judgment, Bruce and another bring error. Dismissed. George K. Powell and Howell H. Parks, for plaintiffs in error. W. F. Rampendahl, for defendant in error. WILLIAMS, J. On December 1, 1910, petition in error, with case-made attached, was filed with the clerk of this court, and summons issued thereon. On September 11, 1911, dissolved by order of said court. On March 8, 1910, a proceeding in error was begun in this court to review the order dissolving the same. On the 21st day of December, 1910, the action in which the temporary injunction was issued and dissolved was tried in said district court, and judgment rendered therein in favor of the defendant. Defendant in error moves to dismiss this question is now involved. proceeding on the ground that only a moot The plaintiff in error has neither made any response to this motion nor in any way resisted the dismissal of this proceeding in error. The time in which the plaintiff was allowed to make and serve a case-made has expired, without any re-extension, and no case-made has been made and served. It further appears that no question which could be reviewed by transcript arises on said record. It follows that the only relief that could be awarded now by the de |