Linden Land Co. v. Milwaukee Electric Railway & Light Co.

83 N.W. 851, 107 Wis. 493, 1900 Wisc. LEXIS 289

• Court: Wisconsin Supreme Court
• Decided: October 12, 1900
• Status: Published

Opinion

Winslow, J.

With the somewhat novel practice followed in this case, by which a new plaintiff owning property on a distant street was allowed to be substituted for the original plaintiff, and the original injunctional order was permitted to remain in force practically without complaint for weeks, while the new plaintiff was preparing his complaint, we are not concerned. Ko questions as to the propriety or regularity of these proceedings is before us, because the present appeals are simply appeals from orders refusing to vacate the preliminary injunetional order. Upon appeal from a judgment, intermediate orders involving the merits and necessarily affecting the judgment may be reviewed. Stats. 1898, see. 3070. But we know of no provision which authorizes a review of one order upon an appeal from another. Breed v. Ketchum, 51 Wis. 164. That the court had jurisdiction to refuse to allow the plaintiff to arbitrarily discontinue the case, and also jurisdiction to allow another plaintiff to be substituted in his place, was decided by this court in this very case. State ex rel. Milwaukee v. Ludwig, 106 Wis. 226.

So the case reaches this court upon the appeal from the order of June 9th in the same condition as it was in the trial court. The substitution of the Linden Land Company as plaintiff in place of the original plaintiff, and the addition of Charles J. Eigel as a plaintiff, are accomplished facts, not open to question or review; and we are to consider and decide whether, under the pleadings and affidavits before the court, they or either of them were entitled to the in-junctional order originally granted. The case presented, then, is one in which two citizens, claiming to represent many thousand similarly situated, have come into court and challenged the validity of franchises granted by the city council, and demanded judgment that the grantee of the franchises be forbidden to accept or utilize them,— a judgment which, if granted, practically vacates and annuls the franchises as effectually as if they were vacated at the suit of the state. It is familiar law that courts do not revise, control, or vacate the acts of a municipal government at the suit of private persons, except as incidental or subsidiary to the protection of some private right or prevention of some private wrong. Pedrick v. Ripon, 73 Wis. 622; Nast v. Eden, 89 Wis. 610. The private person so suing must show something more than a mere speculative or theoretical wrong or illegal act. He must show an actual or threatened invasion or destruction of a distinct right belonging to himself or to the body of citizens for whom he sues. He cannot sue to prevent an act merely because it is illegal. Any other rule would render the transaction of municipal business well-nigh impossible.

The present action must be tested by this rule. The claim of the plaintiffs is practically that they do come within the rule, because they allege that they are taxpayers of the city and also abutting owners upon streets covered by the franchise; and it is very evident that the action, if sustainable at all, must be on the ground that their rights either as taxpayers or as abutting owners, or both, are threatened with illegal invasion.

The claim that this is a proper taxpayers’ action will first be considered. Ho court has been more liberal in maintaining the right of a taxpayer to vindicate the rights of himself and his fellow taxpayers against the actual or threatened malfeasance or nonfeasance of public officers than this court.- The cases are numerous, and many of them recent. Such actions may be brought where municipal authorities are about to unlawfully dispose of public property or pay out public funds, or about to enter into unlawful and unauthorized contracts which will require public funds to discharge them, thus increasing the burdens of taxation, or squandering the property of the taxpayers, or both. Webster v. Douglas Co. 102 Wis. 181, and cases cited; Rice v. Milwaukee, 100 Wis. 516. And in a proper case the court wil^ go further, and compel the unfaithful officers, and even third persons, to repay into the treasury sums already illegally paid out. These cases go on the principle that the money or property so squandered or about to be squandered is the money of the taxpayers, and hence every taxpayer has a substantial interest in it, which he is entitled to have protected. Upon similar principles a taxpayer’s right to enforce a cause of action of the corporation is upheld where the corporate officials wrongfully refuse or neglect to perforin that duty. Estate of Cole: Mulberger v. Beurhaus, 102 Wis. 1. Here the basis of the right is not that there is necessarily a personal and direct pecuniary loss to the taxpayer, but that the public moneys, rights, or property are about to be squandered or surrendered, and that such moneys, rights, or property belong to the body of taxpayers, and are simply held in trust by the unfaithful public officials. This is well illustrated in the case of Estate of Cole, just cited, where real and personal property was willed in remainder to a city in trust for the establishment of a public library and a home for the aged poor, and a controversy arose between the -executors and tlie city, in the county court, as to whether certain expenditures upon the property should be charged against the life tenant of the property, or against the corpas of the estate. The county court decided against the city, and, the city officials declining to appeal, a taxpayer intervened and took the appeal to the circuit court; and his right to do so was sustained by this court. Here no taxpayer could be said, in strictness, to have suffered a direct or pecuniary in-, jury by the decision of the county court, or the failure to appeal therefrom; but the illegal diminution of the trust property was a distinct invasion of the property of the corporation, in which each individual taxpayer or member of the corporation had a substantial interest, notwithstanding the property could only be used for the purposes of the trust and its entire loss would not necessarily result in increased taxation. So understood, the case is in entire harmony with the general principles laid down in the other cases in this court.

Further than this it is not believed that any case has gone in this court, nor is it believed that any further extension of the rule is expedient or necessary. So the question is whether it is shown in this case that any wrongful squan-tiering- or surrender of the moneys, property, or property rights of the city, or unlawful increase in the burdens of taxation, is threatened by the proposed ordinance, within the rules above stated.

It is claimed that such a squandering of valuable property is shown, because it is alleged that before the’passage of the ordinance the city was offered §100,000 by a third party for the additional franchises granted to the defendant railway company by the ordinance, and also because it appears that the defendant company itself in the year 1898 offered to pay the city annually on the 1st of January of each year large sums of money, beginning with §50,000, and increasing the sum each year by §10,000, until it reached $100,000 annually, in case said city would grant the right to charge five-cent fares until the year 1985. These offers were, however, rejected by the city, and the present ordinance adopted, by the terms of which no moneys are to be paid to the city, but the company is required to sell twenty-five tickets for §1, good for travel during certain morning and evening-hours, until January 1, 1905, and after that time good during all hours of the day.

It seems very plain to us that this action of the council cannot be called, in any proper or reasonable sense, a squandering of public funds or property. By sec. 1862, Stats. 1898, the city is empowered to grant the use of streets and bridges to street railway corporations upon such terms cos the proper authorities shall determine. Here is a broad grant of discretionary powers. The question "before the council was, "What terms shall be attached to the grant? Is it more beneficial to the public to secure a cash payment, or payments which will benefit taxpayers only, or to secure lower rates of fare for the public generally, or to impose other conditions ? After exercising this discretion, and deciding that the terms imposed should be a gradual reduction of fare, rather than payments of money into the treasury, it cannot be said that any city fund has been squandered, lost, or misused. Whether the city should receive any fund was-a question for the council, in its discretion, to decide. When it decided that there should be no fund, but that reduced fares or other limitations upon the grant were more desirable for the public, it may or may not have exercised good discretion, but it has dissipated no city fund or property. And so with regard to the proposal of the third person to-pay $100,000 for the additional privileges granted to the defendant company. The additional privileges were over a few fragments of widely separated streets. If used by the defendant company in connection with its other lines, covering almost the entire city, with the system of transfers provided by the ordinance, they would probably complete a harmonious sj^stem; but, if attempted to be used by an independent company as separate lines, it seems probable that, they would be far less useful to the public. It was undoubtedly a question addressed to the sound discretion of the council, whether the franchise should be sold to a third person who could only run fragmentary lines, or should be-granted to a company which would be required to incorporate the fragments into its system, and thus furnish to the traveling public continuous trips under a transfer system from one part of the city to another for a single fare.

The same considerations evidently apply to a number of other allegations in the complaint, to the effect that the grant of the franchise will necessarily put the city to great expense in repaving, widening, and improving streets and viaducts, and will seriously injure the water system of the city, by electrolysis of the pipes, thus increasing the burdens of the taxpayer. The fact that some injurious effects to streets, or water pipes in the streets, are liable to result from the granting of the franchise, does not impair the power to grant it, but simply becomes an important consideration to be taken into account in the fixing of the terms which shall accompany the grant. This question also becomes a question of discretion, which discretion is vested in the common council, and cannot be controlled by a taxpayer or any body of taxpayers. We have found no other allegations, which can reasonably be claimed to state any substantial injuries to the plaintiffs as taxpayers, within the rules governing taxpayers’ actions, and the conclusion necessarily follows that no cause of action is stated in the complaint in favor of the plaintiffs as taxpayers only.

But the question remains whether a cause of action is. stated in favor of either plaintiff as an abutting owner of real estate. Before proceeding to consider this question upon the merits, it seems necessary to dispose of a preliminary question which was much argued, namely, whether one abutting owner can maintain such an action on behalf of all other abutting owners. It is very evident that in a proper taxpayer’s action, challenging the illegal waste or squandering of corporate funds or property, the question is one “ of common or general interest of many persons,” thus, bringing the case within sec. 2604, Stats. 1898, and allowing one to sue for the benefit of all, because the fund or property threatened is undivided, and the interests of the taxpayers therein inseparable. But it is equally evident that the same considerations in no way apply to the interests of abutting owners who own separate parcels of property. In this case the interest of each property owner is separate and distinct 'from that of every other property owner. One owner in severalty is in no way interested in the injury (if any) to his neighbor’s lot. In fact, the owner of one lot may consider his property injured, and the owner of an adjoining lot may consider his lot benefited, by the proposed street railroad; and such may be, in fact, the case resulting from the different uses to which the two lots are or may be put.

It is true that it has been held by this court that in case of a threatened nuisance, affecting several parcels of real estate alike, the several owners may join in an action to prevent the projected nuisance. This principle has been applied to the construction of a bridge Without legal authority, which would be a nuisance to several riparian owners (Barnes v. Racine, 4 Wis. 454); to the unlawful incumbering of a park or public place with buildings which would constitute a nuisance to the owners of lots fronting upon it (Pettibone v. Hamilton, 40 Wis. 402); also, to the diversion of water in a river to the injury of several riparian owners (Grand Rapids W. P. Co. v. Bensley, 75 Wis. 399). But the effect of these decisions is not that one may sue for the benefit of all, but simply that all such parties similarly affected are proper, though not necessary, parties to an action. Kaukauna W. P. Co. v. Green Bay & M. C. Co. 75 Wis. 390. They may join in one action if they choose, but they are not compelled to; and it follows logically from, this that, if they do not join, no one owner is bound by the result of another’s separate action. The theory of the action, where one properly sues for all, is that the result is conclusive on all who are similarly situated and whom the plaintiff rightfully represents; and such must be the theory, or else the plaintiff does not represent all, and the statement that he does is not only false but absurd.

It is palpably evident that the principle cannot apply to abutters, because, as said before, they may join or not, as they choose. If one can rightfully refuse to join, his rights manifestly cannot be litigated or determined in the action, and hence he cannot be bound by the result, and by no legal fiction can it be said that he has been represented in the action. It is well settled that the owners of lots in severalty cannot join as plaintiffs to set aside an illegal tax upon their separate lots; nor can they sue on behalf of themselves and other taxpayers. Barnes v. Beloit, 19 Wis. 93; Pier v. Fond du Lac Co. 53 Wis. 421. The line which divides this last-named class of cases from the class of cases holding that two or more property owners may join to prevent a nuisance affecting their several lots alike is perhaps somewhat difficult to draw, but in any event neither rule justifies the bringing of the present action by one abutter for the benefit of all. Treating a street railway about to be laid upon a street without authority of law as a continuing nuisance to the owners of abutting lots, the most that can be said, under the decisions in this state, is that two or more owners in severalty of abutting lots similarly affected may join as plaintiffs, but that one cannot sue for the benefit of all, and a statement that he does so sue is mere surplusage. Whether, as in the present case, an abutting owner upon one street may join with an abutting owner upon another street a mile or more distant, even .though it is intended to connect the lines upon the two streets with lines already existing, may be a serious question, but it is one which we do not feel called upon to decide. We are not now considering the case upon demurrer for improper joinder, and it seems that if it appears by the complaint and the papers used upon the motion to vacate that either plaintiff was legally entitled to have the injunctional order maintained pending the action, then the motion to vacate was properly denied.

Proceeding, then, to consider the rights of the plaintiffs as abutting owners simply, and conceding that the pleadings and affidavits show the supposed franchise to be invalid, and hence that they were entitled to an injunction preventing' the laying of the railway upon the particular street in front of their several lots, it is still impossible to see how they could properly demand that the railway company should be prevented from accepting the franchise, and thus in effect annulling the entire grant. Such relief was in no way necessary to the protection of any right which they had as abut-ters. Their lots and all rights therein were completely and fully protected from injury when the proposed railway was debarred from entering upon the street upon which their .property abuts. They needed nothing further. The only true object and purpose of a preliminary injunctional order, either at common law or under the statute, is to prevent the commission or continuance of some act, “ the commission or continuance of which during the litigation would produce injury to the plaintiff.” Stats. 1898, sec. 2774. The court may enjoin any threatened act during the litigation, when such act would produce injury to the plaintiff’s rights, but it will go no further than necessary for that purpose. The extent of the necessity marks the extent of the right to enjoin. To go further, and enjoin other acts which, if done, do not affect the rights in litigation in any way, is simply an exercise of arbitrary power, which cannot be defended for a moment. So it seems to us certain that, so far as the preliminary injunctional order prevented<,the defendant railway company from accepting the franchise, it should have been vacated, because the acceptance could in no way affect the rights of either plaintiff.

Upon the same principle it results that the Linden Land Company, suing to protect its rights as an abutter on Locust street, had no standing in court to insist that the injunctional order restraining the laying of tracks on First avenue, a mile and a half distant, should stand pendente lite. The building of a track on First avenue could not injure its property nor affect its rights as to the building of a track on Locust street a particle. And thus the case is reduced to the simple question whether the plaintiff Eigel, as an abutting property owner on First avenue, is shown to be entitled to an injunction pendente lite preventing the building of the track and operation of street cars in front of his property on First avenue.

That an abutting lot owner may enjoin the laying of a railway track which is about to be laid without authority of' law on the street in front of his premises cannot be doubted for a moment. It is unnecessary to cite cases upon this proposition. In the present case it is claimed that the grant to the railway company is void and conveys no power to lay tracks, for several reasons, which will now be considered :

1. It is said that the laying and operation of an electric street railway, to be operated by the overhead system, with trolley wires and supporting- poles, is an additional burden on the fee, and hence that it cannot be done without making compensation to the adjoining lot owners. This contention is ruled in the negative by the case of La Crosse City R. Co. v. Higbee, ante, p. 389, where the exact question was discussed and decided. The ordinance in the present case is essentially identical with the one involved in that case. It authorizes the carriage of passengers only, and, in the absence of a showing that it is proposed to locate poles or structures in .such manner as to interfere with a property owner’s right of access to his property, it must 'be held that the present case is ruled by the La Crosse Case upon this question.

2. It is claimed that sec. 1862, Stats. 1898, under which the defendant corporation is incorporated-, is unconstitutional, because it attempts to authorize the formation of .street railway corporations vested with the power to carry freight as well as passengers, thus making it a commercial railroad, and also authorizes municipal corporations to grant the use of streets to such railway companies for the carriage of freight and passengers, and nowhere provides for the payment of compensation to the abutting owners. It may be admitted, for the purposes of the case, that a railway authorized to carry freight as well as passengers becomes a commercial railroad instead of a street railroad, and that such a railroad, when laid in a street, becomes an additional burden on the fee, and cannot be laid without the consent of, or compensation made to, the adjoining property owners. Chicago & N. W. R. Co. v. Milwaukee, R. & K. E. R. Co. 95 Wis. 561. But this hardly meets the question. It is true' that our statutes contain no provisions authorizing such companies to condemn private property in the streets of cities- or villages, although such condemnation may be had outside of cities and villages. Stat. 1898, sec. 1863».

It is not quite clear how this deficiency in the law affects the corporate character of the defendant corporation. It may render it impossible for it to lay or operate a track for the transportation of freight without actually purchasing the right from private owners to cross their lands, but the legislature certainly had power to authorize the formation of just such corporations; and if it neglected to provide the corporation, when formed, with a means essential to its successful operation, the result would seem to be a very unfortunate one for, the corporation, and perhaps one fatal to its business success, but not fatal to its corporate character. If such a corporation attempted to condemn, it could be successfully defeated by the fact that it was given no such power; and, if.it attempted to lay tracks without condemning, it would be stopped with the proposition that it was. taking private property without compensation. Passing this question, however, there are other considerations which seem to us to answer the contention without serious difficulty. The law should be sustained if possible on any reasonable theory. Every intendment is in its favor. We think it may reasonably be said that this law was only intended to authorize corporations to use streets with the consent of the city for carriage of freight as against the rights of the public and not as against private owners, leaving such private owners in full possession of their rights to stop the construction, insist on compensation, or give their consent, as they chose. Such was substantially the construction placed upon the act authorizing telegraph companies to place their poles in streets in the case of Krueger v. Wis. Tel. Co. 106 Wis. 96. This construction seems to us to be entirely reasonable. It deprives the property owner of no substantial right, and has the additional merit that it does not violently disturb the many valuable rights and property interests, both public and private, which doubtless have arisen, founded in good faith upon the validity of the legislation attacked.

Furthermore, it will be noticed that the corporation does not obtain its right to use any given street from the terms of its charter. It might exist for a century, and, if no municipality saw fit to grant it a franchise to use its streets, it could do no business. In the present case the city has not chosen to grant it any right to carry freight upon a single street. All the franchises which it owns by purchase, as well as the franchise now in question, simply confer the right to carry passengers only, or, in other words, to build and maintain a street railroad in the usual and ordinary sense of the term; and we do not see how it can for a moment claim the power to carry freight over its lines in the city of Milwau-< kee, or do. any thing more than maintain a street railroad for the carriage of passengers only. If it can only maintain and operate a street railroad, it is quite difficult to see how the plaintiffs can be injured in any way by the failure of the legislature to endow the corporation with power to condemn private property.

3. Another claim is that the ordinance is unconstitutional because it is in effect a special or private law “granting corporate powers or privileges,” and so prohibited by sec. 31 of art. IV of the constitution. The argument is that the ordinance attempts to confer corporate powers and privileges; that it is a special act of legislation; that, in enacting it, the city council was simply exercising legislative power attempted to be delegated to it by the state, or, in other words, wasyro hao vice the legislature; that under the constitutional provision above cited j;he legislature itself could pass no such law; and that the city council can possess no greater power than the legislature. This is an important contention, and, if well founded, is fraught with serious results to many interests; for it cannot be doubted that the power supposed to be granted to municipal corporations to grant such privileges as are here in question has been very frequently used. But there is a radical difficulty with the first premise, which demolishes the entire argument. While such franchises as were here granted are legislative grants, they are not corporate powers or privileges, within the meaning of the constitution. When granted to a corporation, they become the property of the corporation, and so may be called franchises of the corporation; but they are not “franchises essential to corporate existence, and granted as part of the organic act of incorporation.” State ex rel. Att'y Gen. v. Portage City W. Co., ante, p. 441. Some confusion undoubtedly exists in the cases on this subject, and such franchises have been sometimes called “ corporate franchises,” as noted in the case last cited, but this does not affect the true character of the franchises. The distinction was pointed out by Chief Justice Ryan in the Railroad Oases, 35 Wis. 425, on page 560, speaking of this very clause of the constitution, where he said that the phrase “ to grant corporate powers or privileges ” is equivalent to the phrase “ to grant corporate charters,” and, further, “ A franchise is not essentially corporate, and it is not the grant of a franchise which is prohibited, but of a corporate franchise; that is, as we understand it, franchise by act of incorporation.” This construction was followed and approved in Black River Imp. Co. v. Holway, 87 Wis. 584, and, indeed, it seems, upon reflection, the only reasonable construction which can be placed on the constitutional provision. Such franchises as those before us may be sold and assigned, if assignable, or the corporation may be deprived of them by forfeiture, and yet the corporate existence will be in no way affected. This consideration effectually disposes of the argument on this point, and renders it un■necessary to inquire whether there may not be other infirmities in the .argument which are equally fatal to it.

4. Another claim made is that the council had no power to extend existing unexpired franchises long before their expiration, and that, even if it had such power, the ordinance is void, because it is unreasonable. It may be noted in passing that neither of the plaintiffs owns any property abutting on any of the streets containing existing lines of railway, and hence, as abutters, they would seem to have no interest authorizing them to attack those parts of the ordinance extending the life of previous grants; but, granting that they are entitled to raise that question, we do not think the ordinance can be held void on either ground. The statute (sec. 1862, Stats. 1898) gives the municipality po wer to grant to street railway companies the use of streets, without limitation, save that such grant be made “upon such terms as the proper authorities shall determine.” This is certainly a very broad grant of power,— certainly more comprehensive than the statute of Indiana under which the case of City R. Co. v. Citizens’ St. R. Co. 166 U. S. 557, Avas decided. In that case the law required that street railway companies should first “ obtain the consent of such common council to the location, survey, and construction of any street railway through or across the public streets of any city, before the construction of the same;” and it was held that, where a franchise had been granted in 1864 to a street railroad company for the term of thirty years, the unexpired franchise might legally be extended in 1880 (fourteen years before its expiration) for the term of seven years, so that it would not expire until 1901, and that the continued operation of the road was sufficient consideration for such extension. The case seems strictly applicable here. In the present case some of the existing franchises already owned by the defendant railway company expired in the year 1924, and some in succeeding years, and they were all extended in terms until the year 1934. We are unable to see that there was lack of power to do this, or that the extension of time was unreasonable. Many of the franchises were granted in very recent years,— some of them as late as the year 1S90; and franchises for terms of forty and fifty years, and even longer, are frequently upheld by the courts. We have been unable to find, by an examination of the ordinance, that its terms are unreasonable,— at least, to such an extent as would justify a court in declaring it void. To arrive at such a conclusion, the unreasonable character of the ordinance ought to be very clear.

5. We pass now to a number of objections which may be considered together. They are, in effect, objections to the regularity of the council proceedings in the adoption of the ordinance. It is said that sec. 9401, Stats. 1898, which requires the application for the franchise, containing the substance of the privileges asked for, to be' filed with the city clerk and published in the official paper for not less than two weeks previous to action on such publication, was not complied with. It is also said that certain provisions of the city charter, inquiring all ordinances to be referred to appropriate committees, and not to be acted upon except after report made by the committee, have not been complied with. It is also said that it appears that the officers of the railway company used corrupt methods in securing the passage of the ordinance, in that they agreed to pay large sums to certain citizens to induce them to cease their opposition to the passage of the ordinance.

It is sufficient to say with regard to these claims that, whatever may be the rule elsewhere, it has -been held in this state that these questions cannot be raised at the suit of private parties. Stedman v. Berlin, 97 Wis. 505. That case was a taxpayer’s action in equity brought to set aside the grant of a franchise to build and maintain public waterworks in the city of Berlin. The grantee of the franchise had. accepted the franchise and given bond for the performance of the requirements of the ordinance, but had not commenced to construct the plant. It was charged in the complaint that the franchise was void because the provisions of sec. 9405, Stats. 1898, had not been complied with, and that it had been procured by the grantee by means of improper and undue influence exercised by him upon the members of the common council: This court held, however, that the remedy to set aside a franchise irregularly or fraudulently granted, under the circumstances there presented, was by quo warrcmto or scire facias at the suit of the state, and not in an equitable action at the suit of private parties.

The present case is substantially identical1 in its essential facts with the one just cited. It is true that no formal acceptance of the ordinance had been placed ón file, but the company was shown to be in possession of its already constructed lines, and transacting its business' thereon, selling tickets at the reduced rate, and performing the obligations required of it by the terms of its new franchise. It was certainly quite as much in the exercise of the privileges conferred by the franchise as was the grantee .of the franchise in the Steelman Oase, who had not commenced even to build his plant. The principle here adopted is quite analogous to that applied to an application for leave to bring action on behalf of the state to annul the franchises of such a corporation on account of misuse or nonuse thereof. Such leave will not be given as a matter of course for every dereliction of duty, but it will be granted, or not, as the interests of the public seem to demand. State ex rel. Att'y Gen. v. Janesville W. Co. 92 Wis. 496. So, here, upon the facts presented, it is not at all certain that the present franchise would be set aside at the suit of the state. It appears that a notice containing a full copy of the proposed ordinance was .published for more than two weeks prior to the final passage of the ordinance. This is claimed to have been insufficient, by the plaintiff, because it should have been published two weeks before any action was taken by the common council, and because the ordinance was amended in some minor details just before passage. Now, it may be a serious question whether sec. 9405, Stats. 1898, means that the publication shall be made for two Aveeks .before any action, however slight, or before final action. The section simply says “ before action.” It appears also that the ordinance as originally presented was referred to a select committee, who reported a substitute ordinance; and thus it is claimed that the requirements of the charter have been met, notwithstanding there were some minor amendments made after the report, and before passage. Furthermore, a resolution was passed by the council at the same meeting when the ordinance was passed granting the same franchises in identical terms with those contained in the ordinance; and it is claimed, and with apparent reason, that, if the ordinance fails, still the resolution may be effective. Sec. 1862 does not require the franchise to be granted by ordinance. Hence it may undoubtedly be done by resolution. The resolution was first introduced on the night of its passage. Hence the publication of notice was for two weeks previous to “ any action,” as well as to final action, and the charter provisions as to the reference of ordinances to committees does not apply to» resolutions. Considering these facts, and the evident strenuous attempt to conform to all statutory requirements, it may be doubtful whether any court would feel that valuable franchises should be forfeited, even at the suit of the state, even though it might conclude that there was some irregularity in the proceedings. It is enough, however, that the question is not open in this action.

The same considerations, in effect, apply to the charge of corrupt practices. It is not charged that' any member of the council was corrupted, but that certain citizens who opposed the ordinance were bought off with money. This charge is explained in the answer as follows: The ordinance allowed the railway company to use a viaduct for the building of which a number of property owners had paid about $8,000, special assessments. As the building of the railroad across the viaduct turned it practically into a railway bridge and diminished its usefulness to the property owners who had contributed to its erection, they objected to such use unless they were repaid what they had put into it over and above their share as general taxpayers. In this situation, the officers of the street railway company agreed to make good to the property owners what they had paid by way of special assessments. This was done without concealment, but was known to all. Even were we disposed to find fault with the transaction, the rule of the Stedman Case plainly covers it.

We have discussed the case as presented upon the second motion to vacate, and any separate discussion of the first motion is unnecessary. Our conclusion is that both motions should have been granted.

By the Court.— Orders reversed, and action remanded with directions to vacate the preliminary injunctional order and for further proceedings according to law.