#### The Commissioners of Ross County *v.*The Scioto Valley Traction Company. Same *v.*Same.

*Interurban railroads*— Not *under provisions of act of April*25, *1904*— Interpretation *of law.*

An interurban railroad for the operation of cars by electricity and by the tractive friction resulting from their own weight is not within the act of April 23, 1904 (97 O. L., 546), “to provide how railroad and highway crossings may be constructed.”

(Nos. 9590 and 9591

Decided February 5, 1907.)

Error to the Circuit Court of Ross County.

The two cases relate to the crossing by the defendant of two highways of Ross county, which are under the control of the Board of Commissioners. of that county. The records to be reviewed were made in.the circuit court where the causes were tried on appeal. Plaintiffs are the Board of Commissioners of Ross County, having statutory authority and control over the highways in question. The defendant is a corporation organized for the construction of an interurban railroad from the city of Columbus, in Franklin *549county, to the city of Chillicothe, in Ross county. The object of the suits was to enjoin the defendant from constructing its road across said highways at grade. Issues of fact having been joined the cause was submitted to the court upon an agreed statement of facts. The material facts so agreed upon are to be found in the opinion.

*Mr. Peter J. Blosser,*prosecuting attorney, and *Mr. Albert*Douglas, for plaintiffs in error.

It seems to be substantially admitted by counsel on each side that the question presented by the record in this case is whether the first and second sections of the act of April 25, 1904 (97 O. L., 546), prohibit the defendant in error from crossing with its railroad the public highway named in the amended petition “at grade.”

The language of this act is certainly clear and explicit. In terms it applies to all “railroads”; and the description of this defendant’s road contained in the agreed statement of facts, clearly brings it within all definitions of the word “railroad.” But defendant insists (1st) that this act, though general in .its terms, applies only to “steam railroads”; and (2d) that the record discloses that its railroad is not a steam railroad, but an “interurban” railroad.

The charter of the defendant company provides that:

“Said corporation is formed for the purpose of constructing, operating and maintaining a railroad with electricity or other lawful motive power with single or more tracks, with such side tracks, switches, turnouts, offices, depots, shops, telegraph *550lines, telephone lines, poles, wires, devices and all other necessary appliances for the operation of a railroad with electricity as motive power, or for the operation of a railroad with any other lawful power which said company may hereafter adopt or use.”

This charter further provides for the transportation of passengers, packages, express matter, mail, baggage and freight over the said railroad. It provides that the termini of the road shall be Columbus and Chillicothe, with branches to Lancaster and Washington C. H., through the counties of Franklin, Pickaway, Fayette, Fairfield and Ross.

We submit that clearly under this charter whatever motive power the company may have elected to begin with, they may at any time, with a roadbed so constructed upon a private right of way, equipped with rails seventy pounds to the yard, laid at “standard gauge” — in other words an equipment as clearly designed as possible for locomotive and ordinary cars, change the motive power to steam.

We submit that the court will look, in order to determine what kind of a railroad this is, to its articles of incorporation, and will not hear parol testimony to vary the powers granted to this corporation by the state, upon its. own motion and description of the same. *State, ex rel.,*v. *Interstate Savings Investment Co.,*64 Ohio St., 318; *In re Avon Beach & Southern Ry. Co.,*16 Ohio Dec., 94.

We contend: (1st) That the charter of this corporation consists of the statutes of Ohio authorizing its formation, together with its own *551articles of incorporation; (2d) That this charter is the measure of its powers; (3d) That it is estopped to deny the powers conferred by its charter; and (4th) That no parol testimony is admissible to contradict, explain or modify the plain language of its charter. *State*v. *Washington Social Library Co.,*11 Ohio, 96.

The charter of a corporation “is the measure of its powers.” Am. & Eng. Ency. of Law (new edition), Vol. 7, p. 695, and notes. Am. & Eng. Ency. of Law, Vol. 7, p. 701, and notes. Its charter consists of the statutes under which it was formed, together with the articles of incorporation. Am. & Eng. Ency. of Law, Vol. 7, p. 708.

See, as reflecting upon this question: *Bartholomew*v. *Bentley et al.,*1 Ohio St., 37; *Straus et al.,*v. *Eagle Ins. Co.,*5 Ohio St., 59; *White’s Bank*v. *Toledo Fire & Marine Ins. Co.,*12 Ohio St., 601.

“The powers of a corporation and the purpose for which it is organized, must be determined by the articles of incorporation;” and parol testimony to show that it was organized for a different purpose is not competent. *In re Fuller Laundry Co.,*82 N. W. Rep., 673; *Craig*v. *Benedictine Sisters’ Hospital Assn.,*93 N. W. Rep., 669.

The articles are the sole criterion determining the intention of the incorporators and the purpose for which the corporation was organized. *Converse*v. *Morgan et al.,*95 N. W. Rep., 767; *McLeod*v. *Lincoln Medical College,*96 N. W. Rep., 265; *Meen*v. *Pioneer Pasteurizing Co.,*97 N. W. Rep., 140; *In re Nicholson,*37 La. Ann., 346.

*552The terms and provisions of the articles of incorporation duly executed and filed can not be varied or limited by parol evidence. 3 Elliott on Evidence, Section 1947. Citing: *City of Kalamazoo*v. *Kalamazoo Heat, Light & Power Co.,*124 Mich., 74; *Stedman*v. *Eveleth,*6 Metc., 114; *Dooley*v. *Cheshire Glass Co.,*15 Gray, 494.

But we further insist that even if this court thought it permissible jior this defendant company to show that it was using and intended to use electricity as a motive power, nevertheless this court, under the circumstances of this case, will hold that the act in question should be applied to such a “railroad” as the agreed statement of facts discloses the defendant’s railroad to be.

Some confusion has arisen, or may arise, owing to the fact that for fifty or sixty years of the legislative history of the state there was but one sort of “railroads” known among men; and that during the last few years other varieties of the same genus have appeared, such as street railroads, and what have become known as “trolley lines,” “traction lines,” “interurban roads,” “electric roads” and other designations.

It is obvious that so long as the Legislature is dealing with the steam railroads only, many acts would be passed which would in their very nature have very little or no application to these or other sorts of roads mentioned above.

Hence there has occurred among the decisions of this and other courts a number of cases in which it was reasonable and necessary to hold that certain language and acts of the legislature *ex vi termini*applying to “railroads” were applicable to steam railroads only.

*553A number of such cases have been cited and insisted upon in this case, the dicta of which may seem to support the contention made by opposing counsel in the court below, that the word “railroad,” as used by our legislature,, always means steam railroad. We refer to the following: *Massillon Bridge Co.*v. *Cambria Iron Co.,*59 Ohio St., 179, construing an act passed in 1874. *Green*v. *Woodland Ave., etc., Street Railroad Co.,*62 Ohio St., 67; *Cincinnati, etc., Elec. Street Railroad Co.*v. *Lohe, Admr.,*68 Ohio St., 101.

The above cases cited by opposing counsel in the court below comprise all the decisions of this court, relating to this question, which have come to our attention or which we are able to find; and we do not deem it necessary to review the dicta or the rulings of lower courts upon questions involving a distinction between steam and other railroads.

Here is a company operating a railroad, built upon a private right of way, in every respect like the best standard gauge steam railroads of the most modern type; on which, as is common knowledge, are run machines weighing twenty to thirty tons, sixty feet long, at a speed of from 50 to 60 ¡miles an hour; in every regard as dangerous to the travel upon intersecting highways as an express train upon a steam railroad. And here is a statute not undertaking to disturb vested rights but to regulate the crossings of railroads thereafter to be constructed, so as to avoid the dangers and the nuisance of grade crossings. Furthermore we have here a crossing peculiarly dangerous in itself, as the record shows, and so located as to constitute, if maintained at grade, a particu*554larly dangerous crossing; and on the other hand we have a statute, the language of which, the policy of which, the justice of which, and the good sense of which, all appeal to the court as meeting the exigencies of this case.

This defendant company can acquire neither by grant of this plaintiff by estoppel nor otherwise any vested right to maintain a public' nuisance. *Lake Shore & Michigan Southern Ry. Co.*v. *City of Elyria,*69 Ohio St., 414; *New York & New England Ry. Co.*v. *Village of Waterbury,*55 Conn., 19, 10 Atl., Rep., 162; *Woodruff et al., Comrs.,*v. *New York & New England Ry. Co.,*59 Conn., 63, 20 Atl. Rep., 17; 7 Am. & Eng. Ency. Law, 711.

*Messrs. Daugherty & Todd,*for defendant in error.

Will the construction of these grade crossings constitute a public nuisance?

If the statutes of this state give the defendant the right to construct its railway across public highways at grade, then such grade crossings can not be a public nuisance *per*se, since that which the law authorizes can not be a public nuisance. *Northern Transportation Co.*v. *City of Chicago,*99 U. S., 635; *Pennsylvania*v. *W. & B. Bridge Co. et al.,*18 How., 421; *Miller*v. *Mayor of New York,*109 U. S., 385.

Assuming for the present that the defendant’s railway is of the class known as electric interurban railways, or street railways, there can be no doubt that full authority is conferred upon it by the statutes of Ohio to construct grade crossings. Section 3443-8 and 3443-9, Revised Statutes.

*555If, then, the defendant’s railway crossing these highways constitutes a public nuisance, it can only be because of the peculiar facts and conditions surrounding and connected with these particular crossings. On this point wé contend that if the highways are left in a reasonably safe condition for travel in the ordinary mode, they are free from nuisance. *City of Troy*v. *Brady,*67 Ohio St., 65; *Village of Cardington*v. *Admr. of Fredericks,*46 Ohio St., 442; *City of Zanesville*v. *Fonnan,*53 Ohio St., 605; *City of Circleville*v. *Sohn,*59 Ohio St. 285; *City of Cincinnati*v. *Fleischer, Admr.,*63 Ohio St., 229.

Has the defendant lawful authority to construct the tracks óf its railway across these public highways at grade?

It is apparent from this action of the board of commissioners that the right was granted the defendant by the authorities in charge of these highways to construct its road over said highways *at grade.*

It is argued, however, by counsel for plaintiff, that this act of the board of commissioners is void for want of lawful authority in the board of commissioners to grant such right. This argument is based upon the provisions of the act of the General Assembly, passed April 25, 1904, 97 O. L., 546.

Does this act apply to defendant’s road? The defendant claims that its road is of the class designated by the statutes of Ohio as an electric interurban street railroad.

The question thus presented is, does the act above quoted relate to and govern the construction of defendant’s road over said highways? *556If it does, we freely concede that the commissioners of Ross county were without power to authorize the construction of grade crossings over said highways, while, if it does not, we contend the commissioners had lawful power to authorizé such grade crossings.

It has frequently been held by this court that the word “railroad,” when used in the statute, without any qualification as to the kind of road intended, will be limited to the class of railroads known as steam railroads; in other words, that the term “railroad” used in the statute is not generic, pertaining to all classes of railroads, but ¡special, including only steam railroads. *Massillon Bridge Co. et al.*v. *Cambria Iron Co.,*59 Ohio St., 179; *Cincinnati, etc., Street Railroad Co.*v. *Lohe, Admr.,*68 Ohio St., 101; *Green*v. *Woodland, etc., Street Ry. Co. et al.,*62 Ohio St., 67; *Cleveland & Eastern Railroad Co.*v. *Somers,*24 C. C., 67; *C. Y. & H. Electric St. Ry. Co.*v. *C. H. & I. R. R. Co. et al.,*21 C. C., 391; *Dayton & Union Ry. Co.*v. *Dayton & Muncie Traction Co.,*26 C. C., 1.

The statutes under which the company is organized should, in themselves, be decisive of the entire matter, regardless of the decisions. Section 3443-8, Revised Statutes.

The title of this act, taken from Bates’ Annotated Statutes, latest edition, is “Construction, etc., of *street railroads*outside of municipalities,” and it is apparent from the act itself that it is the one under which the Scioto Valley Traction Company is operating. Section 3443-11, a statute in *pari materia*with the other one just quoted, gives such companies power to lease, purchase or make traf*557fic arrangement *with any other*street railroad company. These two statutes should be construed together, and in so doing, why should the word “other” be used if the railroads already spoken of were not street railroads? Section 3443-13, another statute in *pari materia.*

Section 347-/ alludes to one railroad company, or an electric railroad company crossing at grade. If the word “railroad” comprehended all companies operating in the state, why should the word “electric” be used?

In the same act, but in another part thereof, railroad companies are defined so that it can readily be seen that the legislature treated them as separate and distinct in their characteristics.

Section 3443-10 gives interurban railroad companies the right of eminent domain; this, steam railroad companies have had for years, and one is scarcely justified in presuming that the legislators are so careless and regardless of the rules of good English as to grant a certain power to those already possessing it in expressly the same degree. *Bloom*v. *Richards,*2 Ohio St., 402.

We contend, first, that a company can not be lawfully incorporated in this state to operate both a steam railroad and a street railroad; that is to say, that corporations can be formed in Ohio for one main purpose only. *State ex rel.*v. *Taylor, Secretary of State,*55 Ohio St., 67.

If steam railroads and street railroads are two separate and distinct classes of roads, then a corporation formed for the purpose of constructing and operating a railroad. of one class could not, at the same time, lawfully be organized to construct and operate a road of the other class, *558as this would necessarily imply the organization of a corporation for two distinct purposes. The act of April 25, 1904, 97 O. L., *546,*is unconstitutional .•

Should the court find that the act of April 25, 1904, applies to defendant’s railway, and for that reason defendant has not lawful authority to construct its road at grade over the highways described in the petition, we would contend that this act is unconstitutional and void.

1. It confers legislative and administrative power upon the Court of Common Pleas. *Queen City Telephone Co.*v. *City of Cincinnati,*73 Ohio St., 64; *Village of Fairview*v. *Giffee,*73 Ohio St., 183.

2. It is taking property without due process of law.

Even if it be urged that such highway crossing can not be constructed across the right of way and tracks of an existing railway without first appropriating the right so to do, this would not meet the situation. *Norwood*v. *Baker,*172 U. S., 270.

Si-iauck, C. J.

On the 5th day of September, 1904, the commissioners by resolution entered on their journal, authorized the Traction Company to construct and operate its road over these highways. The resolution contemplated grade crossings and it contained the express provision that over or under *crossings*should not be *required.*On the 8th of February, 1905, they passed another resolution to rescind that by which such permission had been conferred, reciting in the preamble to the latter resolution that the for*559mer had been passed through mistake and misunderstanding, and that the crossings would be extremely dangerous to the traveling public. To the latter resolution there was appended an order that the company should not cross any highway in Ross County except in the manner provided in the original franchise, or in such manner as might be thereafter granted. In the meantime the company had gone forward in acquiring its right of way and with the construction of its road; and it is not contended that the latter resolution is effective to revoke any authority which had been effectively conferred by the former. The question presented, as counsel agree, is whether the company is within the act of April 25, 1904, 97 O. L., 546, its construction being for the operation of its cars by electricity conducted upon a third rail, and its cars being in fact so operated. The scope of the act is indicated by its first section, which provides that “except as in this act elsewhere provided, all crossings hereinafter constructed, whether of highways by railroads or of railroads by highways, shall be0 above or below the grade thereof.” Other sections of the statute provide the method by which crossings may be authorized at grade by the Court of Common Pleas.

Obviously the word “railroad” needs not to be used in a strained or unnatural sense to include an interurban road operated by electricity. And in this connection counsel for the plaintiffs naturally advert to the decisions in which manifest resemblances have been recognized between the companies which depend for the movement of their cars upon their own tractive friction and those which for that purpose employ locomotives *560for their tractive power. It is, however, an approximately correct generalization to say that the legal likenesses have been found in the relations which the different companies as common carriers of passengers and freight sustain to . their patrons and their relations to their employes. And it remains to inquire whether in the provisions which the legislature has made for the safety of those who are participating in the common use of crossings and highways and the tracks of common carriers it has preserved a distinction on account of the motive power or the tractive methods employed by the carriers. A substantial basis for such distinction is found in the greater weight and momentum of trains drawn by locomotives in comparison with cars for whose propulsion reliance is had upon the tractive friction produced by their own weight, and the promptness with which the latter may be stopped. We may with propriety advert to the substantial character of this difference, but only as an aid in determining whether the legislature has thought it sufficient to justify the distinction in question. The amendments of varioüs statutes upon the subject of railroads and street railroads which are cited in the brief of counsel for the defendant show that in the opinion of the legislature the former term does not include roads of the latter description, and that other terms must be employed to subject roads of different classes to the same statutory provisions.

The case of *The Massillon Bridge Co. et al.*v. *The Cambria Iron Co.,*59 Ohio St., 179, involved the interpretation of Sections 3207 and 3208, Revised Statutes, relating to the construction of *561railroads. It was there held upon considerations which appear to be as applicable here that the word “railroad” does not include street railroads, and by the judgment in the case an interurban' road was regarded as a street railroad within the legislative meaning. That case was decided November 29, 1898, and by its subsequent acts the legislature has indicated its satisfaction with that interpretation. Even the act here relied on was passed at a later date, employing terms which according to that interpretation would not apply to the defendant. It is admitted that existing legislation authorizes the commissioners of a county to permit “street railroads outside of municipalities” to run upon and along highways. From the exercise of this authority it would result that the Traction Company might enter upon these highways from one side and at a point more or less remote leave them upon the other. No considerations appear which would justify the conclusion that the legislature intended that to such roads as the- defendant grade crossings, if oblique, should be permitted, and if direct forbidden.

*Judgment affirmed.*

Crew, Summers and Davis, JJ., concur. Spear, J., did not participate.