termination of this appeal would be in the error, presenting his theory of the case, was way of costs.

The motion to dismiss is therefore sus is shown, the presumption being in favor of tained. All the Justices concur.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

Okl. 597, 101 Pac. 1117; Court of Honor v.
Wallace, 23 Okl. 734, 102 Pac. 111 C., R.
I. & P. Ry. Co. v. Bradham, 24 Okl. 250, 103
Pac. 591; Coleman v. Eaton, 26 Okl. 858,
110 Pac. 672.

ed to stop the same at like or similar points, eventually resulting in hindering interstate traffic.

Under the exercise of the police power, the appellant may be required to afford adeThe appeal is therefore dismissed. All the quate facilities for the local or intrastate justices concur.

TRAIN AT JUNCTION.

passengers. The Commission found that at such junction point the trains that are stopped by appellants for the purpose of put

ting off and taking on passengers do not af ford adequate facilities for such purpose. Such finding comes to this court with the presumption of being correct, just, and reasonable, and we are not permitted to disturb the same until the contrary affirmatively appears.

We do not understand that the Commis

sion required said trains to be stopped sole

Where an order of the Corporation Commission, requiring an interstate train to be stopped on flag at a junction point or station, appears to be desirable for the public and necessary for the public conveniences, and properly because it is a junction point. To arbiand adequate facilities are not otherwise af- trarily require interstate trains to stop at forded for such point, its size and importance a junction point, solely because it was such, being considered, in connection with the service required on account of its being a junction point, the same will not be disturbed on appeal.

[Ed. Note.-For other cases, see Railroads,

Dec. Dig. 227.*]

Dunn, J., dissenting.

or at all junction points within the state, would be such an interference with interstate commerce as is not permitted under the decisions of the Supreme Court of the United States, which are controlling on this court. Herndon v. C., R. I. & P. R. R. Co.,

Appeal from Order of Corporation Com- 218 U. S. 135, 30 Sup. Ct. 633, 54 L. Ed. mission.

Petition of A. J. Langer and others before Corporation Commission for requiring the St. Louis & San Francisco Railroad Company to stop at a certain flag station. From the order of the Corporation Commission, the railroad company appeals. Affirmed.

W. F. Evans and R. A. Kleinschmidt, for appellant. C. J. Davenport, for appellees.

WILLIAMS, J. A petition was filed by the appellees before the Corporation Commission, praying that the appellant be required to stop on flag at Davenport station certain trains, to wit, Nos. 407 and 408. After the hearing, said trains were ordered to be stopped as prayed for.

970.

It must be understood that we do not affirm the order of the Commission solely on the ground that this interstate train is required to stop at a junction, but we take into consideration the fact of its being a junction point, the size of the place, and the reasonable requirement of facilities for the intrastate traffic. The Corporation Commission having made the order requiring the stopping of such trains, and it being prima facie, or presumed to be, correct, just, and reasonable, such presumption has not been affirmatively overcome in this court, and, under such finding and presumption, we reach the conclusion that the order should be affirmed.

The order is affirmed. All the Justices concur, except DUNN, J., who dissents.

(29 Okl. 689)

REINHARDT v. WHITMIRE et al. (Supreme Court of Oklahoma. Nov. 14, 1911.) (Syllabus by the Court.) APPEAL AND ERROR (§ 349*)-APPEAL BY IN

FANT-STATUTORY PERIOD.

The Atchison, Topeka & Santa Fé Railway line intersects that of appellant at said station, which has a population of about 800 people. The order of the Commission should not be disturbed by this court, unless it is unjust and unreasonable. M., K. & T. R. R. Co. v. State, 24 Okl. 331, 103 Pac. 613; C., R. I. & P. R. R. Co. et al. v. State et al., 24 Okl. 370, 103 Pac. 617, 24 L. R. A. (N. S.) 393; A., T. & S. F. Ry. Co. v. State et al., 23 Okl. 210, 100 Pac. 11, 21 L. R. A. (N. S.) 908; Id., 23 Okl. 510, 101 Pac. 262; K. C., M. & O. Ry. Co. v. State, 25 Okl. 715, 107 Pac. 912; Ft. Smith & W. v. State, 25 Okl. 866, 108 Pac. 407. It does not appear that the stopping of said trains on flag for the putting off or taking on of passengers would result in severe detriment and hindrance to interstate traffic. It is insisted, however, that if the appellant is required to stop trains at this junction it may be requir-349.*]

"In a case where an infant is plaintiff in error, and the statutory period of one year provided for in section 6082, Compiled Laws of Oklahoma 1909, has expired before the commencement of his proceeding in error, which occurs during the period of his disability, the one year referred to in said statute, relating to infants, begins to run as to him after the removal of his disability, and is not an additional period granted to him during its existence."

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1905-1912; Dec. Dig.

Error from District Court, Craig County; [tember 21, 1911, defendants in error filed a T. L. Brown, Judge.

Error from District Court, Okfuskee Coun-election; and the legislative body of any such ty; John Caruthers, Judge.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

4. MUNICIPAL CORPORATIONS (§ 682*)--USE OF STREETS-POWER TO GRANT FRANCHISES.

The amendment of a section of an ordinance granting a franchise, passed by the city council of a city of the first class, by providing that an electric street railway may extend its tracks generally throughout the city, and use the streets thereof for that purpose, notwithstanding the original franchise named certain streets which might be used for that purpose, is not repugnant to that part of section 5a, art. 18, of the Constitution, which provides that "no franchise shall be granted, extended or renewed for a longer term than twenty-five years." [Ed. Note.-For other cases, see Municipal | Corporations, Dec. Dig. § 682.*]

5. EMINENT DOMAIN (§ 275*)-PAYMENT BEFORE TAKING INJUNCTION.

Persons owning lots abutting upon the streets of a city of the first class, upon which an electric street railway company is about to lay its tracks with the consent of the city, are not entitled to a writ of injunction to restrain the progress of such work, upon the ground that the consequential damages accruing to said lot owners by the additional servitude laid upon the street have not been first ascertained and paid.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 769-773; Dec. Dig. § 275.*] Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Suit by W. L. Overholser and others against the Oklahoma Interurban Traction Company. Judgment for defendant, and plaintiffs brings error. Affirmed.

Henry E. Asp, Devereux & Hildreth, and Snyder, Owen & Lybrand, for plaintiffs in error. J. H. Wright, H. A. Kroeger, and

W. A. Ledbetter, for defendant in error.

KANE, J. The plaintiffs in error, who hereafter will be referred to as plaintiffs, commenced this suit in the court below against the defendant in error, which hereafter will be referred to as defendant, to enjoin it from constructing its street railway lines along and upon certain streets of the city of Oklahoma City. The plaintiffs alleged, in substance: That they are the owners of residence property abutting on Robinson and other streets of said city, owning their lots and the streets in front of them, in fee simple, subject to the right of the public in the streets. (1) That the defendant was about to use said streets for the purpose of constructing, operating, and maintaining an electric street railway system thereon, without authority of law, thereby committing a nuisance, and, (2) if authority exists, without first ascertaining and compensating them for the injury done to their property by said user. The relief prayed for was denied by the court below, and to reverse the judgment this proceeding in error was commenced.

[1] The principal ground upon which they deny the right of the defendant to use and occupy said street for such purpose is that, under its articles of association and organization, it is authorized to construct, operate, and maintain only and solely inter

urban street railways, and not a street rail-
way system, as that term is generally un-
derstood, operating throughout the city. The
original articles of association were issued
in May, 1905, and, among other things, pro-
vided: "That the purposes for which this
corporation is formed are to build, equip,
run and operate an electric street railroad
from some accessible point in Oklahoma City
to and through Capitol Hill, and through and
around Oklahoma City, and to Lexington,
O. T., and vicinity, to own and operate trol-
ley poles, power plants, houses and any
other modern appliances therefor. To exer-
cise the rights and powers of railroad corpo-
rations, and may, with the consent of the
towns or cities along said line, construct,
supply and furnish electric lights to same
and to the citizens thereof, as well as electric
currents. To acquire by purchase or other-
wise the franchise, contracts, plants, good
will and other rights or property of any
other electrie street railroads or lighting
companies that may be located within any
of the cities or towns along said line.
own or acquire by lease or otherwise all
other appliances, either real or personal,
that may be deemed necessary to the full
enjoyments of the rights and privileges here-
in obtained.

То

The place from and to which

this railroad is to be constructed, is in and

upon some accessible street or streets in the

city of Oklahoma, and thence to and through

such street and streets in the town of Capitol Hill as it may desire to use, and to and through Lexington, to Cleveland county, the estimated distance thereof being about forty miles, same extends into and through Oklahoma and Cleveland counties, O. T."

Afterwards, during the year 1907, amended articles of association were issued, which, among other things, provided: "That the purposes for which this corporation is formed are to build, equip, run and operate an electric street railroad from some accessible point in Oklahoma City to and through Capitol Hill, and through and around Oklahoma City and to and through El Reno, O. T., and vicinity; to own, run and operate trolley poles, power plants, houses and any other modern appliances therefor; to exercise the right and powers of railroad corporations, and may with the consent of the towns or cities along said line, construct, supply and furnish electric lights to same and to the citizens thereof, as well as electric currents; to acquire by purchase or otherwise the franchise, contracts, plants, good will and other rights or property of any other electric street railroads or lighting companies that may be located within any of the cities or towns along said line; to own or acquire by lease or otherwise all other appliances either real or personal that may be deemed necessary to the full enjoyment

of the rights and privileges herein obtained. | Okl. 126, 98 Pac. 978; Oklahoma Portland The place from and to which this railroad Cement Co. v. Anderson, 115 Pac. 767. is to be constructed is in and upon some ac- The record shows that Ordinance No. 549, cessible street or streets in the city of Okla- which became a law of the city on the 5th homa, and hence to and through such street day of November, 1905, grants to the defendand streets of the town of Capitol Hill as it ant the right to establish, construct, and may desire to use, and to and through El maintain its railway upon certain streets of Reno, Canadian county, the estimated dis- the city, the streets upon which the property tance thereof being about forty-four miles, of the plaintiffs is situated not being includsame extends into and through Oklahoma ed; and further provides that: "Said railand Canadian counties, Oklahoma Territory." way company will not build its line upon any It is obvious that the defendant corporation was organized in pursuance to section 1 of the Session Laws of 1903, p. 141, which corresponds with section 1408, Compiled Laws of Oklahoma 1909, relating to electric railways, which provides that corporations may be formed under the general railway laws of the territory of Oklahoma, who shall have the power to use electricity for the propulsion of their cars and rolling stock, etc. Section 2 of said act, which corresponds with section 1409 of the Compiled Laws of Oklahoma, 1909, provides that: "Such corporations in addition to the powers exercised by railroad corporations generally, may, with the consent of the authorities of any city or town in the territory of Oklahoma, located along or upon its lines, construct a system of street railways upon such streets and upon such terms and conditions as may be agreed upon between such corporation and such city or town."

[2] A careful consideration of the original and amended articles of association in connection with the general laws in relation to corporations possessing the power to use electricity for the propulsion of its cars and rolling stock, and the statute conferring additional powers thereon, leaves no doubt in the mind of the court that, if the defendant obtained the consent of the authorities of the city, as provided by section 2, supra, its articles of incorporation are sufficiently broad to authorize it to construct a system of street railways upon the streets thereof upon such terms and conditions as may be agreed upon between such corporation and the city. This is not a departure from the general rule contended for by counsel, that a corporation is circumscribed within what they call its primary power-that is, the power conferred upon it by its articles of incorporation -but the application of another well-settled rule, to the effect that: "The charter of a corporation, read in connection with the general laws applicable to it, is the measure of its powers, and a contract manifestly beyond those powers will not sustain an action against the corporation. But, whatever under the charter and other general laws, reasonably construed, may fairly be regarded as incidental to the objects for which the corporation is created is not to be taken as prohibited." Green Bay & M. Ry. Co. v. Union Steam Boat Co., 107 U. S. 98, 2 Sup. Ct. 221, 27 L. Ed. 413; Derr v. Fisher, 22 119 P.-9

other streets than the one designated herein without the consent of the city council of Oklahoma City." The defendant constructed and is maintaining street railway tracks upon the streets named in section 1 of said ordinance, without any objections being made thereto, as far as the court is informed. Ordinance No. 549 took effect prior to statehood, and at that time the only way to pass an ordinance or give the consent required by section 1 of that ordinance was by the action of the city council. When, subsequent to statehood, the defendant desired permission to extend its lines generally throughout the city, it caused an initiative petition to be circulated, signed, and filed, submitting the question to a vote of the people for their rejection or approval. At the election held thereunder, the proposition submitted carried, and afterwards was enacted into an ordinance by the legislative body of the city. The initiated measure purported to amend section 1 of Ordinance No. 549, and is in words and figures as follows: "Section 1. The right is hereby granted to the Oklahoma Interurban Traction Company, of Oklahoma City, its successors and assigns, hereinafter referred to as said railway company, to establish, construct and maintain in the streets, avenues and alleys of the city of Oklahoma City, as now existing or hereafter extended, a system of electric railroads consisting of either single or double tracks, with trolleys, trolley wires, and all necessary and convenient fixtures and appurtenances needful in the construction and operation of such railroad, and have the right to construct for the purpose of transmitting the power for the propulsion of its cars, overhead trolley systems suspended on poles placed along the curb lines in the center of such street or streets when necessary, provided that this grant shall be subject to all the restrictions and regulations of Ordinance No. 549, of the city of Oklahoma City as herein amended." Several of the propositions of law revolve around this action by the electors and the city council, and involve the general question, Did the foregoing proceedings vest in the defendant corporation power to construct a system of railways upon the streets of the city? In other words, were the initiative proceedings and the action of the city council, or either of them, sufficient to grant the "consent" required by section 2, supra?

[3] On the propositions growing out of this