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termination of this appeal would be in the error, presenting his theory of the case, was way of costs.
properly refused on the ground that there It is a settled holding of this court that was no evidence upon which to predicate it. it will not decide abstract or hypothetical Wherever the plaintiff in error fails to cases, disconnected from the granting of ac- comply with the foregoing rule, and the detual relief or from the determination of fendant in error makes a counter abstract, which no particular result can follow other which is not replied to by the plaintiff in than an adjudication as to who will pay the error, and under such abstract as made by costs of the appeal.
the defendant in error no prejudicial error The motion to dismiss is therefore sus is shown, the presumption being in favor of tained. All the Justices concur.
the trial court, the same will be affirmed.
The judgment of the lower court is ac(29 Okl. 687)
cordingly affirmed. All the justices concur. ARNOLD V. IDIKER. (Supreme Court of Oklahoma. Nov. 14, 1911.)
(29 Okl. 681) (Syllabus by the Court.)
HUDSON V. LAPSLEY et al. APPEAL AND ERROR (8 757*)—AFFIRMANCE-(Supreme Court of Oklahoma. Nov. 14, 1911.)
FAILURE OF PLAINTIFF IN ERROR TO FILE
(Syllabus by the Court.) The plaintiff in error having failed to com- APPEAL AND ERROR (8 430*)—DISMISSAL-Isply with rule 25.(95 Pac. viii), which provides SUANCE OF SUMMONS. that “the brief of the plaintiff in error in all A petition in error will be dismissed on cases except felonies shall contain an abstract motion, even though the same is filed in this or abridgment of the transcript, setting forth court within the year allowed under the statthe material parts of the pleadings, proceedings, ute, where no waiver of issuance and service facts and documents upon which he relies, to- of summons in error is had, and no præcipe gether with such other statements from the for the same filed, and no summons issued or record as are necessary to a full understanding general appearance made, within such time. of the questions presented to this court for
(Ed. Note.-For other cases, see Appeal and decision, so that no examination of the record Error, Cent. Dig. 88 2173, 2174; Dec. Dig. $ itself need be made in this court,” but the 430.*] defendant in error in his brief having made a counter abstract, no reply being made thereto
Error from District Court, Garvin Counby the plaintiff in error, under the abstract as ty; R. McMillan, Judge. made by the defendant in error no error being shown, the judgment of the lower court will be
Action between T. J. Hudson and Wade affirmed.
Lapsley and another. From the judgment, (Ed. Note.-For other cases, see Appeal and Hudson brings error. Dismissed. Error, Cent. Dig. § 3092; Dec. Dig. $ 757.*]
H. M. Carr, for plaintiff in error. J. B. Error from Tulsa County Court; N. J. Thompson, for defendants in error. Gubser, Judge. Action by E. M. Arnold against Henry
KANE, J. This cause comes on to be Idiker. From the judgment, Arnold brings heard upon à motion to dismiss the petition error. Affirmed.
in error and appeal herein, upon the ground Warren D. Abbott and George T. Brown, that no summons in error or præcipe therefor plaintiff in error. Charles J. Wrights- for, or waiver of issuance and service of man, Charles E. Bush, Victor O. Johnson, same, were filed in this court until after the and L. W. Lee, for defendant in error. expiration of one year from the date of the
rendition of the judgment in the court beWILLIAMS, J. Rule 25 (95 Pac. viil) of low. The record shows that the judgment this court is in part as follows: “The brief was rendered below on the 2d day of Nov. of the plaintiff in error in all cases except ember, 1909; that the petition in error, with felonies shall contain an abstract or abridg- case-made attached, was filed in this court on ment of the transcript, setting forth the ma- the 30th day of May, 1910; that no summons terial parts of the pleadings, proceedings, in error was ever issued, and no præcipe facts and documents upon which he relies, therefor filed; that on the 31st day of March, together with such other statements from 1911, a waiver of issuance and service of sumthe record as are necessary to a full under- mons in error, signed by counsel for defendstanding of the questions presented to this ants in error, was filed. court for decision, so that no examination The appeal must be dismissed. The rule of the record itself need be made in this is that "a petition in error will be dismissed, court.” The brief of the plaintiff in error on motion, even though the same is filed in wholly fails to comply with this rule. Coun- this court within the year allowed under the sel for defendant in error do not make any statute, where no waiver of issuance and objection to such deficiency or incomplete service of summons in error is had, and no ness, but set out a counter abstract. Under præcipe for the same filed, and no summons the facts as stated in the counter abstract, issued or general appearance made, within the instruction requested by the plaintiff in such time.” McMurty v. Byrd et al., 23 •For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes Okl. 597, 101 Pac. 1117; Court of Honor v., ed to stop the same at like or similar points, Wallace, 23 Okl. 734, 102 Pac. 111: C., R. eventually resulting in hindering interstate 1. & P. Ry. Co. v. Bradbam, 24 Okl. 250, 103 traffic. Pac, 591; Coleman v. Eaton, 26 Okl. 858, Under the exercise of the police power, 110 Pac. 672.
the appellant may be required to afford adeThe appeal is therefore dismissed. All the quate facilities for the local or intrastate justices concur.
passengers. The Commission found that at such junction point the trains that are stop
ped by appellants for the purpose of put(29 Okl. 691) ST. LOUIS & S. F. R. CO. v. LANGER et al. ford adequate facilities for such purpose.
ting off and taking on passengers do not af. (Supreme Court of Oklahoma. Nov. 14, 1911.) Such finding comes to this court with the (Syllabus by the Court.)
presumption of being correct, just, and reaRAILROADS (227*) – STOPPING INTERSTATE sonable, and we are not permitted to disTRAIN AT JUNCTION.
turb the same until the contrary affirmaWhere an order of the Corporation Com- tively appears. mission, requiring an interstate train to be
We do not understand that the Commisstopped on flag at a junction point or station, appears to be desirable for the public and nec sion required said trains to be stopped sole essary for the public conveniences, and properly because it is a junction point. To arbi. and adequate facilities are not otherwise af- trarily require interstate trains to stop at forded for such point, its size and importance being considered, in connection with the service a junction point, solely because it was such, required on account of its being a junction or at all junction points within the state, point, the same will not be disturbed on ap- would be such an interference with interpeal.
state commerce as is not permitted under (Ed. Note.—For other cases, see Railroads, the decisions of the Supreme Court of the Dec. Dig. $ 227.*]
United States, which are controlling on this Dunn, J., dissenting.
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.
970. Petition of A. J. Langer and others be- It must be understood that we do not atfore Corporation Commission for requiring firm the order of the Commission solely on the St. Louis & San Francisco Railroad Com- the ground that this interstate train is repany to stop at a certain flag station. From quired to stop at a junction, but we take the order of the Corporation Commission, the into consideration the fact of its being a railroad company appeals. Affirmed.
junction point, the size of the place, and W. F. Evans and R. A. Kleinschmidt, for the reasonable requirement of facilities for
the intrastate traffic. The Corporation Comappellant. C. J. Davenport, for appellees.
mission having made the order requiring the WILLIAMS, J. A petition was filed by stopping of such trains, and it being prima the appellees before the Corporation Com- facie, or presumed to be, correct, just, and mission, praying that the appellant be re- reasonable, such presumption has not been quired to stop on flag at Davenport station affirmatively overcome in this court, and, uncertain trains, to wit, Nos. 407 and 408. der such finding and presumption, we reach After the hearing, said trains were ordered the conclusion that the order should be af. to be stopped as prayed for.
firmed. The Atchison, Topeka & Santa Fé Railway The order is affirmed. All the Justices line intersects that of appellant at said concur, except DUNN, J., who dissents. station, which has a population of about 800 people. The order of the Commission should not be disturbed by this court, unless
(29 Okl. 689) it is unjust and unreasonable. M., K. & T. REINHARDT v. WHITMIRE et al. R. R. Co. v. State, 24 Okl. 331, 103 Pac. 613; | (Supreme Court of Oklahoma. Nov. 14, 1911.) C., R. I. & P. R. R. Co. et al. v. State et al., 24 Okl. 370, 103 Pac. 617, 24 L. R. A.
(Syllabus by the Court.) (N. S.) 393; A., T. & S. F. Ry. Co. v. State APPEAL AND ERROR (8 349*)-APPEAL BY IN
FANT-STATUTORY PERIOD. et al., 23 Okl. 210, 100 Pac. 11, 21 L. R. A.
"In a case where an infant is plaintiff in (N. S.) 908; Id., 23 Okl. 510, 101 Pac. 262; error, and the statutory period of one year proK. C., M. & 0. Ry. Co. v. State, 25 Okl. 715, vided for in section 6082, Compiled Laws of 107 Pac. 912; Ft. Smith & W. v. State, 25 Oklahoma 1909, has expired before the comOkl. 866, 108 Pac. 407. It does not appear curs during the period of his disability, the one
mencement of his proceeding in error, which octhat the stopping of said trains on flag for year referred to in said statute, relating to inthe putting off or taking on of passengers fants, begins to run as to him after the removal would result in severe detriment and hin- of his disability, and is not an additional period
granted to him during its existence." drance to interstate traffic. It is insisted,
[Ed. Note.-For other cases, see Appeal and however, that if the appellant is required to Error, Cent. Dig. $81905–1912; Dec. Dig. I stop trains at this junction it may be requir- 1 349.*) •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexen
Error from District Court, Craig County; (tember 21, 1911, defendants in error filed a T. L. Brown, Judge.
motion, which shows service upon attorney Action by Alma Fay Reinhardt, by her for plaintiffs in error, praying that the apnext friend, Mary A. Reinhardt, against Al- peal be dismissed on account of failure to bert Whitmire and others. Judgment for comply with rule 7 of this court (20 Okl. viii, defendants, and plaintiff brings error. Dis- 95 Pac. vl), requiring plaintiff in error to premissed.
pare and serve brief on defendant in error James L. Allen, for plaintiff in error.
w. within 40 days after the filing of the petiH. Kornegay, for defendants in error.
tion in error. This appears not to have been
done. WILLIAMS, J. The defendant in error
The appeal is therefore dismissed. All the has moved to dismiss this proceeding in er
Justices concur. ror, on the ground that it was not commenced within one year after the rendition of the judgment. Counsel for the plaintiff in error
(29 Okl. 571) insists that, as she is a minor, she may, at OVERHOLSER et al. v. OKLAHOMA INany time during her minority and up to the
TERURBAN TRACTION CO. expiration of one year after she attains her (Supreme Court of Oklahoma. Nov. 14, 1911.) majority, prosecute this proceeding in error,
(Syllabus by the Court.) relying upon section 6082, Compiled Laws of Oklahoma 1909.
1. STREET RAILROADS (8 18*)-POWER-STAT
UTORY PROVISIONS. In Birdie Holland, a Minor, by Noah S. Hol- A corporation formed under the general land, Her Legal Guardian, v. Eliza Beaver, laws of the state, in pursuance to section 1408, 116 Pac. 766, this question has been deter-Compiled Laws of Oklahoma 1909, with the
power to use electricity for the propulsion of its mined adversely to the plaintiff in error.
cars and rolling stock, in addition to the powParagraph 2 of the syllabus is as follows: ers exercised by railroad corporations generally, "In a case where an infant is plaintiff in er. may, with the consent of the authorities of any ror, and the statutory period of one year pro- upon or along its lines, construct a system of
city or town in the state of Oklahoma located vided for in section 6082, Compiled Laws street railways upon such streets, and upon of Oklahoma 1909, has expired before the such terms and conditions as may be agreed commencement of his proceeding, which ocupon between such corporations and such city curs during the period of his disability, the with such cities or towns, to supply the said
or town, and may also accept lighting contracts one year referred to in said statute, relating cities or towns or the inhabitants thereof with to infants, begins to run as to him after the light or electric current for power; or such removal of his disability, and is not an addi- railways or such corporation may also acquire, tional period granted to him during its ex- contracts, good will, and other property of any
by purchase or consolidation, plants, franchises, istence."
existing street railway or lighting company, as The motion to dismiss is therefore sustain provided by section 1409, Compiled Laws of ed. All the Justices concur, except DUNN,
[Ed. Note.-For other cases, see Street RailJ., absent and not participating.
roads, Cent. Dig. $$ 39-41; Dec. Dig. & 18.*]
The charter of a corporation, read in con(29 Okl. 690)
nection with the general laws applicable to it, LUGRAND et al. v. HARRIS.
is the measure of its powers. (Supreme Court of Oklahoma. Nov. 14, 1911.) [Ed. Note.-For other cases, see Corporations,
Cent. Dig. 88 1511-1515; Dec. Dig. 8 370.*] (Syllabus by the Court.)
3. MUNICIPAL CORPORATIONS (88 680, 681*)APPEAL AND ERROR (8 773*) — DISMISSAL - USE OF STREETS-POWER TO GRANT FRANFAILURE TO FILE BRIEF.
CHISES. Same as that in Leavitt et al. v, Commer
Section 5a, art. 18, of the Constitution, cial National Bank, 26 Okl. 164, 109 Pac, 71. which provides: “No municipal corporation
(Ed. Note.-For other cases, see Appeal and shall ever grant, extend, or renew a franchise, Error, Cept. Dig. $$ 3104-3110; Dec. Dig. $ without the approval of a majority of the quali773.*]
fied electors residing within its corporate limits,
who shall vote thereon at a general or special Error from District Court, Okfuskee Coun-election; and the legislative body of any such ty; John Caruthers, Judge.
corporation may submit any such matter for Action by Annie Harris, by her guardian, approval or disapproval to such electors at any Crittenden Smith, against E. L Lugrand and election for such purpose at any time upon thir
general municipal election, or call a special others. From the judgment, Lugrand and ty days' notice; and no franchise shall be grantothers bring error. Dismissed.
ed, extended, or renewed for a longer term than
twenty-five years"-applies to an original franC. T. Huddleston, for plaintiffs in error. chise, or to a renewal or extension of the period W. W. Wood, for defendants in error.
for which a grant has been made, and does not apply to a mere extension or enlargement
of the facilities which the franchise holder emWILLIAMS, J. On August 30, 1910, peti-ploys in exercising a power previously granted. tion in error, with transcript attached, was
[Ed. Note. For other cases, see Municipal filed with the clerk of this court. On Sep-1 Corporations, Dec. Dig. 88 680, 681.*]
For other cases see same topic and section NUMBER in Dec. Dig. & An. Dig. Key No. Series & Rep'r Indexes 4. MUNICIPAL CORPORATIONS (8 682*)-USE OF | urban street railways, and not a street railSTREETS-POWER TO GRANT FRANCHISES.
The amendment of a section of an ordi- way system, as that term is generally unnance granting a franchise, passed by the city derstood, operating throughout the city. The council of a city of the first class, by providing original articles of association were issued that an electric street railway may extend its in May, 1905, and, among other things, protracks generally throughout the city, and use the streets thereof for that purpose, notwith vided: “That the purposes for which this standing the original franchise named certain corporation is formed are to build, equip, streets which might be used for that purpose, run and operate an electric street railroad is not repugnant to that part of section 5a, art. from some accessible point in Oklahoma City 18, of the Constitution, which provides that “no franchise shall be granted, extended or renew
to and through Capitol Hill, and through and ed for a longer term than twenty-five years." around Oklahoma City, and to Lexington,
[Ed. Note.-For other cases, see Municipal 0. T., and vicinity, to own and operate trolCorporations, Dec. Dig. $ 682.*]
ley poles, power plants, houses and any 8. EMINENT DOMAIN ($ 275*)—PAYMENT BE- other modern appliances therefor. To exerFORE TAKING-INJUNCTION.
Persons owning lots abutting upon the cise the rights and powers of railroad corpostreets of a city of the first class, upon which rations, and may, with the consent of the an electric street railway company is about to towns or cities along said line, construct, lay its tracks with the consent of the city, are not entitled to a writ of injunction to restrain supply and furnish electric lights to same the progress of such work, upon the ground that and to the citizens thereof, as well as electric the consequential damages accruing to said lot currents. To acquire by purchase or otherowners by the additional servitude laid upon wise the franchise, contracts, plants, good the street have not been first ascertained and paid.
will and other rights or property of any [Ed. Note.–For other cases, see Eminent Do- other electrie street railroads or lighting main, Cent. Dig. $$ 769–773; Dec. Dig. $ 275.*] companies that may be located within any
Error from District Court, Oklahoma Coun- of the cities or towns along said line. To ty; Geo. W. Clark, Judge.
own or acquire by lease or otherwise all Suit by W. L. Overbolser and others other appliances, either real or personal, against the Oklahoma Interurban Traction that may be deemed necessary to the full Company. Judgment for defendant, and enjoyments of the rights and privileges hereplaintiffs brings error. Affirmed.
in obtained. The place from and to which Henry E. Asp, Devereux & Hildreth, and this railroad is to be constructed, is in and Snyder, Owen & Lybrand, for plaintiffs in upon some accessible street or streets in the error. J. H. Wright, H. A. Kroeger, and city of Oklahoma, and thence to and through W. A. Ledbetter, for defendant in error.
such street and streets in the town of Capi.
tol Hill as it may desire to use, and to and KANE, J. The plaintiffs in error, who through Lexington, to Cleveland county, the hereafter will be referred to as plaintiffs, estimated distance thereof being about forty commenced this suit in the court below miles, same extends into and through Okla. against the defendant in error, which here- homa and Cleveland counties, 0. T.” after will be referred to as defendant, to
Afterwards, during the year 1907, amend. enjoin it from constructing its street railway ed articles of association were issued, which, lines along and upon certain streets of the among other things, provided: “That the city of Oklahoma City. The plaintiffs al- purposes for which this corporation is form. leged, in substance: That they are the own
ed are to build, equip, run and operate an ers of residence property abutting on Robin- electric street railroad from some accessible son and other streets of said city, owning point in Oklahoma City to and through their lots and the streets in front of them, in Capitol Hill, and through and around Oklafee simple, subject to the right of the public homa City and to and through El Reno, o. in the streets. (1) That the defendant was T., and vicinity; to own, run and operate about to use said streets for the purpose of trolley poles, power plants, houses and any constructing, operating, and maintaining another modern appliances therefor; to exer. electric street railway system thereon, with-cise the right and powers of railroad cor. out authority of law, thereby committing a porations, and may with the consent of the nuisance, and, (2) if authority exists, with towns or cities along said line, construct, out first ascertaining and compensating them supply and furnish electric lights to same for the injury done to their property by said and to the citizens thereof, as well as elec user. The relief prayed for was denied by tric currents; to acquire by purchase or oththe court below, and to reverse the judgment erwise the franchise, contracts, plants, good this proceeding in error was commenced.
will and other rights or property of any oth The principal ground upon whicb they er electric street railroads or lighting comdeny the right of the defendant to use and panies that may be located within any of the occupy said street for such purpose is that, cities or towns along said line; to own or under its articles of association and or- acquire by lease or otherwise all other ap ganization, it is authorized to construct, pliances either real or personal that may operate, and maintain only and solely inter- I be deemed necessary to the full enjoyment •For other cases see samo topic and section NUMBER In Dec. Dig. & Am. Dig. Key No. Series & Rop'r Indexes
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 corpora - other streets than the one designated herein tion was organized in pursuance to section 1 without the consent of the city council of of the Session Laws of 1903, p. 141, which Oklahoma City." The defendant constructcorresponds with section 1408, Compiled Laws ed and is maintaining street railway tracks of Oklahoma 1909, relating to electric rail- upon the streets named in section 1 of said ways, which provides that corporations may ordinance, without any objections being made be formed under the general railway laws thereto, as far as the court is informed. of the territory of Oklahoma, who shall have Ordinance No. 549 took effect prior to statethe power to use electricity for the propulo hood, and at that time the only way to pass sion of their cars and rolling stock, etc. an ordinance or give the consent required Section 2 of said act, which corresponds with by section 1 of that ordinance was by the acsection 1409 of the Compiled Laws of Okla- tion of the city council. When, subsequent homa, 1909, provides that: “Such corpora- to statehood, the defendant desired permistions in addition to the powers exercised by sion to extend its lines generally throughout railroad corporations generally, may, with the city, it caused an initiative petition to the consent of the authorities of any city be circulated, signed, and filed, submitting or town in the territory of Oklahoma, locat- the question to a vote of the people for their ed along or upon its lines, construct a sys- rejection or approval. At the election held tem of street railways upon such streets thereunder, the proposition submitted carand upon such terms and conditions as may ried, and afterwards was enacted into an orbe agreed upon between such corporation dinance by the legislative body of the city. and such city or town."
The initiated measure purported to amend (2) A careful consideration of the original section 1 of Ordinance No. 549, and is in and amended articles of association in con- words and figures as follows: "Section 1. nection with the general laws in relation to The right is hereby granted to the Oklahoma corporations possessing the power to use elec- Interurban Traction Company, of Oklahoma tricity for the propulsion of its cars and roll-City, its successors and assigns, hereinafter ing stock, and the statute conferring addi- referred to as said railway company, to estional powers thereon, leaves no doubt in the tablish, construct and maintain in the streets, mind of the court that, if the defendant ob- avenues and alleys of the city of Oklahoma tained the consent of the authorities of the City, as now existing or hereafter extended, city, as provided by section 2, supra, its ar- a system of electric railroads consisting of eiticles of incorporation are sufficiently broad ther single or double tracks, with trolleys, trolto authorize it to construct a system of ley wires, and all necessary and convenient fixstreet railways upon the streets thereof upon tures and appurtenances needful in the consuch terms and conditions as may be agreed struction and operation of such railroad, and upon between such corporation and the city. have the right to construct for the purpose of This is not a departure from the general transmitting the power for the propulsion of rule contended for by counsel, that a corpo- its cars, overhead trolley systems suspended ration is circumscribed within what they call on poles placed along the curb lines in the its primary power—that is, the power con- center of such street or streets when necesferred upon it by its articles of incorporation sary, provided that this grant shall be subject -but the application of another well-settled to all the restrictions and regulations of Orrule, to the effect that: “The charter of a dinance No. 549, of the city of Oklahoma corporation, read in connection with the gen-City as herein amended.” Several of the eral laws applicable to it, is the measure propositions of law revolve around this acof its powers, and a contract manifestly tion by the electors and the city council, and beyond those powers will not sustain an ac- involve the general question, Did the foretion against the corporation. But, whatever going proceedings vest in the defendant corunder the charter and other general laws, poration power to construct a system of railreasonably construed, may fairly be regard-ways upon the streets of the city? In other ed as incidental to the objects for which the words, were the initiative proceedings and corporation is created is not to be taken as the action of the city council, or either of prohibited." Green Bay & M. Ry. Co. v. them, sufficient to grant the "consent" reUnion Steam Boat Co., 107 U. S. 98, 2 Sup. quired by section 2, supra ? Ct. 221, 27 L. Ed. 413; Derr v. Fisher, 22  On the propositions growing out of this