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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 willed, 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 roadded affirming the report locating the union de and 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 un. of 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 seve the 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 $u- March 11, 1831, and subjecting them to al. preme 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 “St. 1871, c. 343, requiring certain railroad the removal of railroad tracks from certain corporations to unite in a passenger station public ways and grounds in the city of Wor- in the city of Worcester, at one of two specicester." Section 1 of the act substantially fied places, to be determined by commissionprovided that the Boston & Albany Railroad ers appointed by this court, to extend their Company, the Worcester & Nassau Railroad tracks in that city to the union station, and, Company, the Boston, Barre & Gardner Rail- after the extension, to discontinue portions road Company, the Providence & Worcester of their present locations, is constitutional Railroad Company, and the Norwich & Wor- and valid, being a reasonable exercise of the cester Railroad Company might and should right reserved to the Legislature to amend, unite in a station in the city of Worcester alter, or repeal the charters of those corpofor accommodations; that the Supreme Judi rations." cial 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 shoula Galveston, Harrisburg & San Antonio Railbe binding on said parties, and the court road as prescribed by an act approved May shall enter all such orders and decrees as 8, 1889. The defense was that the act in

question was in violation of sections 1 and 2 road is crossed or separately by each rall. of article 10 of the Constitution, the first of road company, a depot, etc., under penalty wbich provided that: “Every railroad com- of a forfeiture of a sum certain for failure pany shall have a right with its road to en- so to do. On demurrer to each count of the ter, intersect, connect with, or cross another petition, the court said that the first ques. railroad; and it shall receive and transport tion to be determined was the constitutional. each of the other's passengers, tonnage and ity of the act; that such acts when sustaincars, loaded or empty, without delay or dis- able were sustainable under the police power crimination, under such regulation as shall of the state; that the act in question was be prescribed by law.” But the court, in ef- a valid exercise of that power, and that: "It fect, held that the regulation prescribed by is no longer doubted that the Legislature law for the purpose of carrying out that sec- may require that trains shall stop at every tion might very properly extend to just such railroad crossing. Public safety justifies, if matters as were embodied in the act in ques- it does not compel, this. If the Legislature tion, and that said act simply prescribed may require a stop, why may it not require more fully than did former laws what ac- a stop of sufficient length to permit passen. commodations shall be furnished at such gers to get on and off, and with that require places.

suitable depot privileges ? It will be noticed To the further contention that the act in that the statute does not attempt to prequestion did not apply to appellant because scribe the size or expense of these depots. it had constructed its depot in the town of It leaves that to the discretion of the rail. Flatonia before the act was passed, that it road companies, simply requiring that they owned the lot upon which its depot was es shall be sufficient to comfortably accommotablished and that to remove said depot date passengers at that point. It would therefrom to the point of intersection or to seem to be a reasonable exercise of the police erect an additional one there would mate power to compel railroad companies to furrially damage the value of said lot, besides nish suitable accommodations for passengers costing defendant at least $300 or $400, the at all places where they receive and discourt said: “The act does not require it to charge them from their trains. Public wel. remove that depot, nor does it seek to impose fare, if not public safety, justifies this." And any penalty because it was there erected and held the act to be constitutional and overis there still maintained, nor does it provide ruled the demurrer. a penalty for a failure to erect and maintain We think that the holding in Mayor, etc., & depot at point of intersection prior to the v. Norwich, etc., Railroad Co., supra, is a time the act took effect. It matters not how complete answer to appellant's next contenmany depots may have been erected and tion, which is "that it is not competent for maintained by appellant at other points, for any Legislature to compel a railroad to turn this cannot excuse it for not complying with over its property to its competitors or what the act in question; nor can it be said that is the same thing, enter into a union depot the property of appellant or of any citizen of arrangement with its competitors"; for the Flatonia, within the meaning of the Consti- reason that in that case the Legislature comtution, will be taken, damaged, or destroyed pelled just such an arrangement and held the by the erection and maintenance of all the act constitutional on the ground, as stated, houses and accommodations at point of in- supra, in effect, that the same was a reason. tersection which the act requires. There able exercise of the right reserved to the certainly never was a contract between ap- Legislature to amend, alter, or repeal the pellant and the state that the former should charters of the corporations in interest. As not be required, whenever the Legislature a like reservation exists in this jurisdiction deemed it necessary, to erect at the intersec- (Const. art. 9, § 47), we are of opinion the extion of its road with another such buildings ercise of the power may be justified on a like as were necessary for the convenience and ground or on the ground, as stated by Judge comfort of those it serves as a public carrier Brewer in State v. Kansas City, etc., Ry. of passengers.” And affirmed the judgment Co., supra, that the same is a valid exercise of the trial court. And this for the reason of the police power of the state. Dewey v. we think, although the opinion does not so Railroad, 142 N. C. 392, 55 S. E. 292, is also state, that the act was a valid exercise by squarely against appellant's contention. In the Legislature of the police power of the that case the statute under construction was state. State v. Kansas City, etc., Ry. Co. Revision 1905, $ 1097, subsec. 3, which em(C. C.) 32 Fed. 722, was a suit to recover a powered and directed the Corporation Compenalty for the violation of an act passed by mission to require, when practicable, and the Legislature of Missouri in 1881 (Laws when the necessity of the case and the judg1881, p. 77), requiring every railroad com- ment of the commission demanded it, any pany in the state engaged in the transporta. two or more railroads which then or might tion of passengers or property at all cross- thereafter enter any city or town within the ings and intersections of other roads at the state to have a common or union passenger same grade to erect, build, and maintain, el depot for the security, convenience, and acther jointly with the railroad company whose commodation of the traveling public, and to

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unite in the joint expense of erecting, con- / ger' depot be required at Durant, Okl., it structing, and maintaining said union pas- would and could have introduced testimony to senger depot, etc. In passing on the act the the effect that such an order would be unreacourt said: "The power of the Legislature sonable and unjust, in that it would entail to enact a statute of this character has been an extra expense upon the plaintiff in error.” established by numerous and well-considered

For the reason that we can see no injusdecisions of this and other courts of supreme tice or unreasonableness in an order resultjurisdiction, and is no longer open to ques-ing in the holding of the commission after a tion. Industrial Siding Case, 140 N. C. 239 full hearing, in effect, that, although peti[52 S. E. 941); Corporation Commission v.

tioners leveled their testimony at and atRailroad, 139 N. C. 126 (51 S. E. 793), and tempted to show the necessity of a union authorities cited."

depot for both freight and passengers at As near as we can catch the next conten-Durant (if they did), a union passenger depot tion, it is that as appellant, pursuant to the only was necessary, it cannot be said that order, will "be compelled to enter into some the order is unjust or unreasonable because sort of a contract with the Missouri, Kansas petitioners got less than they called for. If & Texas Railway Company relating to the appellant was surprised at the action of the joint use of its depot at Durant," and, as the commission in making the order for a union act only provides, “in the event the rail- passenger depot when, in effect, a union roads fail to agree, as to compensation to be freight and passenger depot was petitioned paid for the construction and maintenance of for, because of which it was prevented from the depot, the commission may fix that showing the order as entered to be unjust amount,” said commission was without pow- and unreasonable "in that it would entail er to compel the Missouri, Kansas & Texas an extra expense upon” appellant, it should Railway Company to enter into such a con

have followed the practice indicated in St. tract, but, if given by the act, it would be L. & S. F. Ry. Co. v. Williams, 25 Okl. 662, unconstitutional on its face and constitute a 107 Pac. 428, by filing a motion in due time taking of the property of said company with before the commission setting forth facts sufout due process of law and without compen- ficient to show surprise, that the order as sation. To this it is sufficient to say that made was unjust and unreasonable, in that it the order is not a command to operate joint- had not been givea sufficient opportunity to ly the depot already there, but to operate a meet the issue upon which said order was enjoint passenger depot on the present site tered, that it could adduce testimony to that of that depot, which would seem to contem- effect if given opportunity so to do, and have plate that either a joint use of the old or the asked a continuance of the hearing. Failing construction and maintenance of a new de in this, appellant has no just ground for compot on that site would satisfy the order. plaint. That being the case, the question raised is But what appellant contends to be the purely hypothetical; but, should the neces- “most oppressive result" of this order is that sity arise for a contract between appellant the $10,000 bonus subscribed by the people and the Missouri, Kansas & Texas Railway of Durant payable when the work is started Company, relating to their joint use of the on its proposed depot will be lost and never old depot, it seems, the commission being au- be payable unless the order is set aside, thorized by said act to make the order, there This loss is not wholly uncompensated for. would be carried with it the power to do It was testified by Mr. Durant, and undiswhat is reasonably necessary to make the puted: "I will state in this connection that same effective. Griffin v. Southern Ry. Co., a union depot can be maintained at less ex150 N. C. 312, 64 S. E 16; Haynes v. Mich., pense than you can maintain three depots. etc., Ry. Co., 111 U. S. 228, 4 Sup. Ct. 369, There is no railroad depot in the town of 28 L. Ed. 410; Dewey y. Railroad, 142 N. C. Durant that can be maintained with less 392, 55 S. E. 292.

than seven men. And by having a union de Assailing the order which appellant con- pot it is economical for both of the roads. cedes to be prima facie just and reasonable, The Missouri, Oklahoma & Gulf proposes it is equally untenable to insist: "There is to build a $10,000 depot in the town of another point in this matter which should Durant. I, as a citizen of the state, don't not be overlooked. In the complaint of the believe there is any necessity for any such complainants it will be observed they ask expensive depot at that town at this time. It for a 'union' depot and the act of May 20, would be a useless expense on the part of 1908, provides for a 'union' depot. There 18 the railroad that the public would have to nothing said in the complaint, nor is there pay for, and, unless there was some absolute anything said in the act of May 20, 1908, necessity for it, I don't believe they ought to providing for a 'union passenger' depot. At build it.

Q. Your idea is that the the trial of this case evidence was introduc-depot that is there affords sufficient facilities ed on the theory that a ‘union' depot was de- for these three roads, and that you simply sired, and had the plaintiff in error known desire that they use at least for the time that the commission was going to make an being, until conditions possibly change in order requiring simply that a 'union passen. | some way-the depot that is there the three

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 8 Am. & Eng. En. of Law, 385; R. R. Comwhich it appears that the loss of the bonus missioners v, Portland &c. R. Co., 63 Me. 269, would only have the effect of relieving ap- 18 Am. Rep. 208; . Fitchburg R. R. Co. v. pellant of the necessity of expending it on Grand Junction R. &c. Co., 4 Allen (Mass.) the erection and maintenance of a superflu- 198. ous structure, and put it to the inconsider- All the Justices concur, except WILLIAMS, able expense of maintaining a joint force in J., not participating. the joint depot already there, and of paying a reasonable rent for the use of one-third

(29 Okl. 684) thereof. In view of all the testimony and especially that of R. P. Bowles, where, speak- CLEVELAND TRINIDAD PAVING CO. v. ing to the safety of the public, he said, “Yes

WOOD, County Treasurer. terday afternoon the Flyer, what is known (Supreme Court of Oklahoma. Nov. 14, 1911.) as the Flyer, 'Katy Flyer,' same south and

(Syllabus by the Court:) No. 2 going north and the Missouri, Okla- APPEAL AND ERROR (8 19*)— EXISTENCE OF boma & Gulf passenger train, all three of CONTROVERSY-Moot QUESTIONS. them came in at the same time. While

The Supreme Court will not decide abstract

or hypothetical cases disconnected from the they were there, the local freight train granting of actual relief, or from the determinawas on the side track switching cars back tion of which no practical relief can follow. and forth on this merchandise track. Now, [Ed. Note.-For other cases, see Appeal and had the Missouri, Oklahoma & Gulf a depot Error, Cent. Dig. 88 63-80; Dec. Dig. 19.*] where they propose to build one, the passen. Error from Superior Court, Pittsburg gers coming in on either one of these other County; P. D. Brewer, Judge. trains it would be impossible for them to Action by the Cleveland Trinidad Paving have gotten over to that had the schedule been company against J. I. Wood, County Treas80 arranged that they would have departed urer. Judgment for defendant, and plainas soon as these other trains got in. There tiff brings error. Dismissed. was also a conglomerated mess of passen

Fuller & Porter and D. C. Westenhaver, ger trains there, and it would have been dan- for plaintiff in error. Robert Tarter, Co. gerous to have tried to have gotten to where Atty., for defendant in error. they propose building the Missouri, Oklahoma & Gulf depot. Now, the principal

KANE, J. There are two questions prebusiness portion of the town is on the west sented and argued by counsel in the foreside of the track, and, by having the depot going proceedings which may be stated as on that side, you avoid the track crossings, follows: (1) Is the date for sale of propand you eliminate a whole lot of trouble erty delinquent September 1, 1910, for nonthere. Quite frequently I have seen women payment of special assessments, the month come in there with perhaps four or five of November, 1910, or the month of Novemsmall children, and oftentimes come in ber, 1911? (2) If such date is the month of there after night, and to have to go from November, 1910, can the county treasurer where the depot is now to the one they pro- now that such date is passed be required pose to build would mean an exposure to by mandamus to select a new date and protrains, and it would be dangerous for them ceed to advertise and sell? The court below to undertake to go back and forth. A great refused to issue the writ, and the plaintiff many people in traveling are not thoroughly in error seeks to have this order reviewed up on what to do. They feel timid in ask- by the Supreme Court. It seems to us that ing any one, especially women, and they will the questions involved have now become take chances quite frequently not knowing hypothetical, and no substantial benefit can what the danger is rather than ask any one. accrue to either party by a decision by the I have seen a great many incidents of this Supreme Court. The time necessarily conkind. I saw one person killed because they sumed in perfecting an appeal and presentdidn't make any inquiry in trying to go ing the case to this court has consumed the across one track. Of course, those things period between the dates contended for by may never happen, and they may happen the the respective sides. It is conceded that first day. In order to avoid that and for the the treasurer intends to sell in November, future protection of our town, I believe it 1911, and, as that time is now upon us, it is would be the best thing to have a union de apparent that the questions of law presented pot"-we believe the order complained of have become entirely academic. It has been is just and reasonable, and for that reason held by this court in a great many cases, the same is affirmed. See Detroit &c. Ry. v. the latest of which is Edwards et al. v. Osborn, 189 U. S. 383, 23 Sup. Ct. 540, 47 Welch, 116 Pac. 791, that “the Supreme L. Ed. 860; Northern Pac. Ry. Co. v. Minn. Court will not decide abstract or hypotheti. ex rel., 268 U. S. 583, 28 Sup. Ct. 341, 52 L. J cal cases disconnected from the granting of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes actual relief, or from the determination of the defendant in error Aled a motion, which which no practical relief can follow.” shows service upon the attorneys for plain:

The appeal is dismissed. All the Justices tiffs in error, asking that the appeal be disconcur, except DUNN, J., absent and not missed on account of failure to comply with participating.

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 er29 Okl. 683)

ror within 40 days after filing the petition BANK OF TAFT v. THOMPSON et al. in error. This appears not to have been (Supreme Court of Oklahoma. Nov. 14, 1911.) done. (Syllabus by the Court.)

The appeal is therefore dismissed. Leavitt

et al. v. Commercial Nat. Bank, 26 Okl. 164, APPEAL AND ERROR (8 773*)-DISMISSALFAILURE TO FILE BRIEFS.

109 Pac. 71. All the Justices concur. 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

(29 Okl. 686) Error, Cent. Dig. 88 3104-3110; Dec. Dig. 8 773.*)

BRYAN V. SULLIVAN. Error from District Court, Muskogee (Supreme Court of Oklahoma. Nov. 14, 1911.) County; John H. King, Judge.

(Syllabus by the Court.) Action between the Bank of Taft and Wil' APPEAL AND ERROR (8 19*) - DISMISSAL liam Thompson and Walter Dills. From

GROUND-WANT OF ACTUAL CONTROVERSY. the judgment, the Bank of Taft brings er- Abstract or hypothetical cases, disconnect. ror. Dismissed.

ed 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.

of the appeal, will not be decided by this court.

[Ed. Note.-For other cases, see Appeal and KANE, J. This cause

Error, Cent. Dig. 88 63-80; Dec. Dig. $ 19.*)

comes on to be heard upon motion of the defendants in error

Error from District Court, Comanche to dismiss the appeal, for the reason that the County; J. T. Johnson, Judge. plaintiff in error has failed to observe rule 7

Action by P. John Bryan against D. F. of this court (95 Pac. vi) in not filing briefs Sullivan. Judgment for defendant, and plainwithin the required time. An examination

tiff brings error. Proceedings in error disof the record shows that the plaintiff in er

missed. ror is in default in regard to filing briefs, although the time for doing so has expired. J. A. Diffendaffer, for plaintiff in error.

The motion to dismiss must be sustained. | Hudson & Whalin, for defendant in error. All the Justices concur, except WILLIAMS, J., absent.

WILLIAMS, J. On February 1, 1910, the

plaintiff in error, as plaintiff, obtained the (29 Okl. 685)

issuance of a temporary injunction out of BRUCE et al. v. KETCHAM.

the district court of Comanche county, (Supreme Court of Oklahoma. Nov. 14, 1911.) which on the 7th day of February, 1910, was (Syllabus by the Court.)

dissolved by order of said court. On March APPEAL AND ERROR ($ 773*) – DISMISSAL - this court to review the order dissolvitg the

8, 1910, a proceeding in error was begun in FAILURE TO FILE BRIEFS.

Same as that in Leavitt et al v. Commer- same. On the 21st day of December, 1910, cial National Bank, 26 Okl. 164, 109 Pac. 71. the action in which the temporary injunc

[Ed. Note. For other cases, see Appeal and tion was issued and dissolved was tried in Error, Cent. Dig. $8 3104, 3108-3110; Dec. said district court, and judgment rendered Dig. $ 773.*]

therein in favor of the defendant. Error from District Court, Muskogee

Defendant in error moves to dismiss this County; J. H. King, Judge.

proceeding on the ground that only a moot Action between A. M. Bruce and another question is now involved. The plaintiff in and H. E. Ketcham. From the judgment, error has neither made any response to this Bruce and another bring error. Dismissed.

motion nor in any way resisted the dismissGeorge K. Powell and Howell H. Parks, al of this proceeding in error. The time in for plaintiffs in error. W. F. Rampendahl, which the plaintiff was allowed to make and for defendant in error.

serve a case-made has expired, without any

re-extension, and no case-made has been made WILLIAMS, J. On December 1, 1910, peti- and served. It further appears that no question in error, with case-made attached, was tion which could be reviewed by transcript filed with the clerk of this court, and sum-arises on said record. It follows that the only mons issued thereon. On September 11, 1911, | relief that could be awarded now. by the de

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

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