Eastern Wisconsin Railway & Light Co. v. Hackett

135 Wis. 464 | Wis. | 1908

Lead Opinion

Tbe following opinion was filed March 10, 1908:

TiMxru, J.

Tbe pleadings are unnecessarily voluminous, covering 835 printed pages. Proper practice requires that when suits are consolidated tbe order of consolidation should require tbe title of the cause and tbe pleadings to be amended to conform to the order of consolidation. Tbe practice here pursued of retaining all tbe original and amended pleadings in. each action and presenting them to the court as the pleadings in the consolidated action cannot be approved. The ■argument took a very wide range, involving the claims on the part of the appellant: (1) that the city had no jurisdiction ■or authority to pass the resolutions complained of, because such resolutions impaired the obligations of existing contracts ; (2) that the acts of the city were in bad faith, ostensibly for the public welfare but really in the interest of the Eastern Wisconsin Railway & Light Company in order to get $35,000 agreed to be paid to the city by that company for its franchise or permit to use the streets; (3) that the resolutions as regulations were unreasonable under the circumstances and hence invalid. These claims are denied by the respondents with' great learning and ability of argument. It is pointed out by respondents that sec. 13 of the franchise ordinance of the appellant expressly reserved to the -common council of the city of Oslikosh the right at all times to control the improvement and repair of its streets and every part thereof to the same extent as if no grant of the right to use the same had been given. This ordinance further declared that all switches and turnouts should be laid under the direction of the board of public works of the city, and the city charter vests in the city the authority to establish and alter the grade of streets and to regulate the manner of using the streets and pavements in the city, and to regulate the running of street railway cars, laying down tracks for the same, the transportation of passengers thereon, and the kind of rails to be used. We are also referred to sec. 1862, Stats. (1898), which declares that a street railway shall be subject to such reasonable rules and regulations as the proper municipal authorities may by ordinance, from time to time, prescribe. Considering the foregoing provisions of the' charter, statute, and ordinance, and the cases of Marshfield v. Wis. Tel. Co. 102 Wis. 604, 78 N. W. 735; Chicago, M. & St. P. R. Co. v. Milwaukee, 97 Wis. 418, 72 N. W. 1118; State ex rel. Wis. Tel. Co. v. Janesville St. R. Co. 87 Wis. 72, 57 N. W. 970; and Baltimore v. Baltimore T. & G. Co. 166 U. S. 673, 17 Sup. Ct. 696, we are convinced that tbe acts and' resolutions in question of tbe city of Oshlcosh were not ultra vires; tbat is to say, not beyond tbe power of tbe city reasonably exercised. We agree witb Judge Quaexes tbat there is no federal question involved.

Tbe respondents further contend tbat this is a controversy wholly between tbe city of Oshlcosh and tbe Winnebago' Traction Company, and tbat tbe Eastern Wisconsin Railway & Light Gompany is only incidentally a party thereunto', and tbat tbe controversy must be determined as if tbe city of Oshlcosh and tbe Winnebago Traction Company were tbe sole contending parties, and, further, tbat tbe city’s acts and resolutions in question were not only within its power, but were a reasonable exercise of its police power of regulation, solely for tbe public interest and in good faith, and tbe conclusion of tbe trial court sustains them in this latter claim. We have given these claims and.all other claims made by either party careful attention, and we are convinced tbat, notwithstanding tbe extraordinary volume of printing presented, the relevant and controlling facts in this litigation are few, simple, and practically uncontroverted.

Where there is no substantial- dispute upon the facts tbe question before this court is whether upon such undisputed facts tbe judgment of tbe court below was right. Getty v. Schantz, 101 Wis. 229, 77 N. W. 191. Besides, tbe aj)pel-laut excepted to tbe sixth conclusion of law, “because on tbe undisputed evidence herein tbe acts of tbe city of Oshlcosh in attempting to deprive tbe defendant, tbe Winnebago Traction Company, of its rights and property in and to' said bridge, were unreasonable, capricious, partial, were not in tbe interest of tbe public, but were and intended to be for tbe sole benefit of tbe Eastern Wisconsin Railway & Light Company.” The latter is an interurban railway company. The ordinance under which it claims its right in the case at bar prohibits the doing of a street railway business by it. Sec. 1862, Stats. (1898), relates to street railways. An ordinance granting an intermitan railway the right to construct its track and operate in public streets is quite a different thing from an ordinance under sec. 1862, Stats. (1898), supra. "With reference to an intermitan railway the ordinance of the common council merely authorizes the corporation to use the streets, with the consent of the city as against the rights of the public, hut 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 choose. Lange v. La C. & E. R. Co. 118 Wis. 558, 95 N. W. 952.

Let us briefly examine the situation as it existed when the city took the first action complained of on the 28th day of ETovember, 1905. At that time the Winnebago Traction Company had succeeded to the rights of the Citizens’ Traetion”Oompany under the franchise of the latter, which had succeeded to the property of the Oshkosh Street Railway Company by purchase. Instead of taking an assignment of the franchise rights of the Oshkosh Street Railway Company, the Citizens’ Traction Company, after its purchase, applied to the common council for a grant of the uáe of certain streets, including Main street, South Main street, and Main-street bridge. The Oshkosh Street Railway had then, and for a long time prior thereunto, its tracks and turnouts upon this street and upon this bridge. This grant to the Citizens’ Traction Company was given by ordinance of ETovember 4, 1897, and specifically authorized necessary switches and turnouts to be laid under the direction of the board of public works. Existing conditions and existing relations cannot be ignored in its interpretation. It also specifically authorized a single or double track along Main street, including the crossing of Main-street bridge. With tbe consent and under tbe permission of tbe city authorities tbe Winnebago Traction Company and its predecessor, tbe Citizens’ Traction Company, maintained over and across this bridge a double track, in form a turnout or passing ■ track, connected with tbeix single main track north and south of tbe bridge upon or near tbe approaches to tbe bridge. These tracks upon and across the bridge were tbe property of the Winnebago Traction Company and were lawfully in place or lawfully entitled to be in place.

At tbe time in question tbe ordinance of June 30, 1897, under which tbe Winnebago Traction Company held this property, contained tbe following:

“Sec. 10. Tbe city of Oshkosh, under tbe proper exercise of its police power, shall have tbe right to regulate tbe operation of said railway as tbe good order of said city and the safety and comfort of tbe citizens demand; tbe said city shall also protect . . . tbe Citizens’ Traction Company in the enjoyment óf tbe rights hereby granted against all invasion or interruption by tbe passage of proper ordinances for that purpose.”

At tbe time in question tbe Winnebago Traction Company bad a traffic agreement with tbe predecessor in interest of tbe Eastern- Wisconsin Railway & Light Gompamy to which tbe latter succeeded whereby tbe Winnebago Traction Company, for a valuable consideration to be paid by tbe Eastern Wisconsin Railway & Light Company, bad agreed to transport tbe cars of tbe latter along tbe tracks of tbe former over tbe bridge in question, and this agreement was to continue in force during tbe whole period of tbe franchise of tbe Winnebago Traction Company. At tbe time in question tbe authority which tbe Eastern Wisconsin Railway & Light Company bad by ordinance of tbe city of Oshkosh permitting it to run on Main street in said city required that corporation to pay $35,000 in annual instalments of $1,000 each, and was subject to this proviso in favor of tbe Winnebago Traction Company, namely:

“Provided, however, that no more than two tracks, including those heretofore laid or existing, or which any other railway company has a right to lay under existing franchise or franchises, shall be laid along said streets, bnt in lien of the laying of such tracks where a single or double track has been heretofore laid or shall hereafter be lawfully laid by another company on any part of said street, the said Eastern Wisconsin Railway £ Light Company is hereby authorized to carry and operate its interurban cars over and along such tracks of any other company by purchase, lease, or other contract arrangement with such company or any other company now owning or using an existing track or tracks along any of said streets.”

At the time in question, in consequence of the city of Osh-Icosh having about December, 1904, begun the construction of a new bridge on Main street across Eox river, and manifestly in recognition of the existing rights of the Winnebago Traction Company on said bridge, there was in existence a contract in writing between the city of OshTcosh and the Winnebago Traction Company, duly executed under the seal of said city, by the terms of which the city agreed, in accordance with plans and specifications then on file in the office of the city clerk, to lay and fasten upon said new bridge the rails of the Winnebago Traction Company, and the Winnebago Traction Company agreed to furnish all rails for the laying of its double track across said bridge and to pay its proportionate share of the cost of the bridge planking and labor to lay the said planking, and laying and fastening said rails upon said bridge, together with ten per cent, additional as a just and reasonable profit to the city. This contract had been executed at least to the extent of furnishing and fastening rails and locating the tracks. At the time in question the Eastern Wisconsin Railway & Light Company had by ch. 266, Laws of 1905 (sec. 1863a, Stats.: Supp. 1906), the power and authority, when reasonably necessary, to take and acquire by condemnation or otherwise the right to run its ears over any bridge owned by any city of the second, third, and fourth classes . . . and the approaches thereto on the rails of any other street or electric railway which it might meet, join, intersect, or cross. At the time in question there existed a decision of this court, announced fourteen days prior to the adoption of the first resolution in question, holding that the Winnebago Traction Company by building a single track with turnouts or jmssing tracks had elected under its franchise ordinance to build a single-track railway, and had no right to convert its line thereafter, either wholly or partially, into a double-track road. Eastern Wis. R. & L. Co. v. Winnebago T. Co. 126 Wis. 179, 105 N. W. 571. At the time in question the Winnebago Traction Company was claiming more than it was entitled to, in that it was claiming the right to double track all of Main street as well as the right to maintain its turnout or passing track on Main-street bridge under the ordinance and contracts above mentioned. At the time in question the Winnebago Traction Company had not yet restored the cross-over or connecting-tracks between its main track and the passing track on the new bridge. At the time in question the Eastern Wisconsin Bail-way & Light Company had a single track constructed in South Main street up' as far as the approach to the bridge in question and parallel with the track of the Winnebago Traction Company, and was claiming the right to run over the bridge, and disputes existed and litigation was pending between the two corporations. We express no opinion with reference to the legality or propriety of the agreement to pay the city $35,000 contained in the ordinance of November 10, 1903, because that question is not necessarily before the court.

We may add here that we do not agree with the construction given by the learned circuit court in its twenty-fourth finding of fact to the proviso contained in sec. 2 of the ordinance of November 10, 1903, under which the Eastern Wisconsin Railway & Light Company claims its right to occupy the streets. It is there thought that this proviso was wholly in consequence of the claims of the Winnebago Traction Company, and that it granted to the other contending company the right to lay its tracks, provided the Traction Company had not the prior right to lay two tracks in said street. The proviso does not read that way. The significant words ■of the proviso are:

“In lieu of the laying of such tracks, wnere a single or ■double track has been heretofore laid or shall hereafter be lawfully laid by another company on any part of said street, the said Eastern Wisconsin Railway '<& Light Company is hereby authorized to' carry and operate its interurban cars ■over and along such tracks of any other company,”

subject to the existing rights of such other company. Tracks then existing, whether single or double tracks, are recognized as lawfully in the streets. Tracks thereafter laid must be lawfully laid. A turnout or passing track then existing is as much within this proviso as any other track, because whether we consider that a single-track pr a double-track road it had been theretofore laid.

While these conditions existed the common council of the ■city of Oshkosh on November 28, 1905, with a superabundance of preamble and protest which suggests the resolution ■of the play queen in Ilamlet or the sixth rule in Twiners Case, resolved that no diagonal switch or connecting trade running at an angle or otherwise be permitted to be laid or placed by either the Eastern Wisconsin Railway'& Light Company or the Winnebago Traction Company upon the new Main-street bridge or upon the approaches thereto until plans' •and specifications therefor were adopted. The Eastern Wisconsin Railway & Light Company was then making no claim to lay diagonal or connecting tracks on or near the bridge. The effect of this resolution was to prevent the Winnebago Traction Company from restoring the connections connecting its main line with the passing track on the bridge north or south of the bridge substantially as sucb connections existed prior to the construction of the new bridge and which. Were displaced temporarily in consequence of such construction. This resolution of November 28, 1905, purported to-revoke any permission or consent whether given or claimed to have been given by ordinance, resolution, motion adopted, or agreement with either of said railway companies which in> any wise conflicted with this order. This, of course, was nominally directed against both companies, but really aimed at the Winnebago Traction Company. The resolution further directed the city engineer to prepare plans and specifications for the location of tracks in Main street, and until said plans and specifications were made and filed neither the-Eastern Wisconsin Railway & Light Company nor the Winnebago Traction Company should be permitted to do any work in Main street or to put in place or move the tracks or-any of them. The city attorney was also directed to compel the location of the tracks in accordance with the said plan of' the city engineer. The city engineer- in due time produced his plan, which was adopted and ratified by the common council and filed with the city clerk, whereupon on December 19, 1905, by resolution No. 4,872, the common council, after a preamble reciting among other things that both the-Eastern Wisconsin Railway & Light Company and the Winnebago Traction Company claimed the right to construct doiible tracks, switches, or turnouts upon Main-street bridge and its approaches, and that suits were pending and others might be commenced in which the city of OshTcosh is or-might be made a party, and other recitals, instructed the city attorney to appear and represent the city in all litigation and to insist that all street railway tracks be constructed in said streets according to the resolution of the common council of' November 28, 1905, and according to the plans and specifications prepared thereunder by the city engineer. This resolution contained some argumentative matter, and also determined that no switch or turnout should be constructed by either the Winnebago Traction Company or the Eastern Wisconsin Railway '& Light Convpany npon Main-street bridge, because the same would be a continuing menace to public safety and convenience and dangerous to the people lawfully traveling upon said street with teams and vehicles. The resolution then required notice to the Winnebago Traction Company to move its tracks in Main street north of the bridge westwardly of the center of the street. In case it failed so to do, required the board of public works to move said tracks; and required the Eastern Wisconsin Railway <& Light Company to file with the city clerk an agreement upon its part to reimburse the city of Oshhosh and hold it harmless from all cost and expense of the relocation of said track.

The Winnebago Traction Company is a street railway. Sec. 1862, Stats. (1898), providés that such railways shall be subject to such reasonable rules and regulations as the proper municipal authorities may by ordinance from time to time prescribe. Passing over without comment the fact that the regulations here attempted were not by ordinance, as required by statute, but by resolution, we quote from Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, at page 351 (85 N. W. 1036, 1042) :

■ “It is elementary that the power of the city council to enact ordinances is not unlimited. It may go, within the field delegated to it by the state legislature, to the boundaries of reason. Within such field its discretionary power is 'supreme, but it cannot legitimately go beyond. If it does, in so far its enactments are void. Whether in any given case where the facts are undisputed a city council has exceeded its power by the enactment of an unreasonable ordinance is purely a judicial question, to be considered substantially the same as that of whether the legislature has exceeded its constitutional authority, reasonable doubts being resolved in favor of municipal power.”

Municipal ordinances must not be unreasonably prejudicial to private rights and interests. , Hayes v. Appleton, 24 Wis. 542. In Le Feber v. West Allis, 119 Wis. 608, 97 N. W. 203, an ordinance for municipal lighting granted under a statutory delegation of power much broader than that given by sec. 1862, supra, was held void because unreasonable, and a large number of authorities are there cited. So ordinances must be impartial, fair, and general. 1 Dillon, Mun. Corp. (4th ed.) § 322. They must not be oppressive in their character. Id. § 321. And they must be reasonable and lawful. Id. §§ 319, 320.

The question in this case, therefore, is, assuming that the city of Oshkosh had power and authority to enact an ordinance in the interests of the public depriving the Winnebago Traction Company of its passing tract upon Main-street bridge, or, what is the same thing, prohibiting the connection of said passing track at its ends with the main track, was it a reasonable exercise of such power to enact such an ordinance at the time in question and under the circumstances then existing? It is argued that the common council has decided and the circuit court has found that any switch or turnout upon Main-street bridge with its diagonals or cross-over tracks on the approaches thereto is undesirable, a hindrance to other modes of travel in the street and over the bridge, and unsafe and dangerous to those using the same with teams and vehicles. It is true that such findings were made. But such findings, still leave the question open whether or not a reasonable exercise of the power of regulation should not have provided for the diagonals or cross-over tracks at a point in Main street farther north and south of the approaches to the bridge instead of prohibiting them altogether. Only two tracks are permitted upon the new bridge. Two tracks existed upon the old bridge. The new bridge is about ten feet wider than the old bridge. There is a clear space of eight feet and eleven inches from rail to rail between the tracks on the new bridge. Now, consider the result of the acts in question of the common council. One result was to abrogate tbe contract made by tbe city witb tbe Traction Company one year before tbe passage of these resolutions and to confiscate whatever property bad been contributed in pursuance of said contract or whatever payments, if any, bad been made therefor by the Traction Company. Another result was to deprive tbe Traction Company of its rights under tbe traffic contract witb tbe Eastern Wisconsin Railway & Light Company, such as they were. It is no answer to this to say that this traffic contract was of 'doubtful validity. Roth tbe city and tbe Eastern Wisconsin Railway & Light Company bad by ordinance of November 10, 1903, recognized tbe right of tbe Winnebago Traction Company to compensation. It is not within tbe authority of common councils to pronounce contracts void as against public policy. Under tbe wording of tbe proviso contained in sec. 2 of tbe ordinance of November 10, 1903, this bridge was a part of Main street; not for all purposes, but within tbe meaning of this proviso interpreting tbe same according to tbe existing situation and tbe relations of tbe parties affected thereby. Another result of tbe action of tbe city was to deprive tbe Winnebago Traction Company of its right to compensation in any condemnation proceeding instituted by tbe Eastern Wisconsin Railway & Light Company for tbe purpose of acquiring tbe right to cross this bridge. Tbe decision of this court in Eastern Wis. R. & L. Co. v. Winnebago T. Co. 126 Wis. 179, 105 N. W. 571, is far from affirming that tbe latter company has no right or property in its turnouts, switching and passing tracks.

The decision in In re Eastern Wis. R. & L. Co. 127 Wis. 641, 107 N. W. 496, is far from affirming that tbe traffic contract in question was wholly void, or that rights or ■claims of right under it could be utterly disregarded by tbe common council. That case merely bolds that such traffic contract is no bar to tbe exercise of tbe power of eminent domain by tbe Eastern Wisconsin Railway & Light Company. The city was interested to the extent of getting $35,000 from the Eastern Wisconsin Railway & Light Company and therefore not wholly impartial. The resolutions in question, although ostensibly aimed at both companies, were wholly in the interest of the Eastern Wisconsin Railway & Light Company as between the two- corporations. There was no- new or sudden increase of the population or traffic of the city of Oshkosh; no emergency calling for immediate action on the part of the city officials. The only condition shown to have been acute or pressing was the effort of the Eastern Wisconsin Railiuay '& Light Company to cross this bridge without compensation to the Winnebago Traction Company in disg-regará of the traffic agreement and in disregard of the provisions of its permit from the city, which required it to make terms with the Winnebago Traction Company, as we interpret that ordinance. This condition was created by the acts of the public officers of the city of Oshkosh and they should not be allowed to stand upon an emergency of their own creation. This effort on the part of the Eastern Wisconsin Railway & Light Company was also in disregard of the statute permitting it to obtain the right to run on the tracks of the other company across the bridge by condemnation. At the same time, as we have seen, the resolution of the city council would be quite disastrous to the Winnebago Traction Company, not only by depriving it of this passing track or turnout, but also by depriving it of the opportunity of ascertaining and maintaining such rights as it possessed against the Eastern Wisconsin Railway & Light Company. It is no answer to this to say that the city had power, by the enactment of reasonable regulations, to compel the removal of this turnout or passing track from the bridge whenever the public interest demanded such action. Conceding the power, still it must be exercised reasonably and impartially, and an unjust or oppressive or partial exercise of such power cannot be justified merely upon the plea that the city determined that the time had arrived when the pnblie interests demanded such action. Such determination is not conclusive because it goes to the reasonableness of the regulation in question. Such a regulation might be reasonable at one time or under one set of circumstances, and unreasonable at a time or under •circumstances when it made havoc, of private interests. It is a somewhat prevalent error that property devoted to public rise and subject to public regulation is thereby quite out of law, or, as Blackstone says, caput lupinum-. The use of such property is subject to regulation and subject to interference by the public authorities with the dominion of the owner to a far greater degree than private property because of its quasi-public character and because of the tendency to abuse or extortion in its use and management. Rut subject to this limitation the owner of such property has the same rights in his property as any other owner. He may insist upon his own price therefor, except as against the power of eminent domain. He may insist upon all the advantages of location and all the advantages of existing contracts so long as he does not run counter to reasonable and lawful regulations concerning the use of such property. So the Winnebago Traction Company had, as. against the Eastern Wisconsin Railway '& Light Company, the right to exact such compensation as it could obtain from the latter for using the east track in question in crossing Main-street bridge. And the latter company has the right to refuse it if it considers the same excessive, and by the law now existing -to resort to condemnation proceedings. But the city had no right to intervene in such an exigency and in effect annul and take away such rights of the Traction Company, even if the public interest did require that the passing track or turnout be removed from the bridge, because such exercise of its police power would be unreasonable under the circumstances above shown. Whether or not it was intended by the city to aid the Eastern Wisconsin Railway & Light Company at the expense of the Traction Company and so earn the $35,000 will make no difference if the natural and necessary result of the acts of the city was to aid the one company at the expense of the other. The city must have intended this natural and necessary result of its acts. A reasonable exercise of the power to regulate on the part of the city would at least require its postponement until after the Eastern Wisconsin Railway & Light Company had acquired by negotiation or by condemnation the right to use this track on the bridge. We do not feel called upon to impugn the good faith of the city officials, but we do challenge their judgment of what is, under the circumstances, a reasonable exercise of the power of regulation, and hold that the attempted regulations were void as partial and unreasonable.

It follows that the judgment of the circuit court must be reversed, the complaint of the city of Oshlcosh and that of the Eastern Wisconsin Railway <& Light Company should be dismissed for want of equity, and that the Winnebago Traction Company should have judgment declaring the resolution of the common council of November 28, 1905, No. 4,861, and that of December 19, 1905, No. 4,872, and the acts done pursuant thereunto, unreasonable and void; but that the requirement that only two tracks be permitted upon the new bridge stand, and that said city and said Eastern Wisconsin Railway & Light Company, and each of their officers, agents, and servants, be enjoined and restrained from interfering with the defendant in, or preventing the defendant from, connecting by cross-over tracks at or near the approaches to the bridge its passing track or turnout on Main-street bridge as at present located with its main track as referred to in the contract of December, 1904, until after the Eastern Wisconsin Railway '& Light Company has acquired by purchase or condemnation the right to use the east trade on said bridge. The Eastern Wisconsin Railway & Light Company should be enjoined and restrained from attempting to cross on said bridge before acquiring the right to do so by purchase or condemnation. We do not think that the Winnebago Traction Company is entitled to any other relief demanded, except that the Basteni Wisconsin Railway '& Light Company should be restrained from interfering or meddling ■with or running over or upon any other passing track of the Winnebago Traction Company until after it acquires the right to dq so by purchase or condemnation. The status quo ■ should be preserved, and the Winnebago Traction Company should not change the present location of its tracks in South Main street, nor should it be required to change such present location of any part of its tracks in Main street north of the bridge for the convenience or accommodation of the Eastern Wisconsin Railway '& Light Company without compensation by that company, the amount thereof to be arrived at by agreement or condemnation proceedings.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to enter'a decree in accordance with this opinion.

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Dissenting Opinion

The following opinion was filed May 8, 1908:

Bashroed, J.

(dissenting). The record in this case' is so voluminous that the preparation of an opinion involves great labor and careful study to avoid error and misstatements. The labor of preparing a dissenting opinion has been greatly lightened by the very able decision and findings of the trial court, which meet my full approval. While this court in the controlling opinion sustains the authority of the municipality to adopt the resolution here challenged, it condemns, the exercise of the power as unreasonable and partial under the facts, which are said to be undisputed. The trial court ha's found that the city of Oshkosh exercised the power which it unquestionably possessed in a lawful and reasonable manner for the regulation of its streets in the interests of the public, as well as for the advantage of the two rival companies. A restatement of the facts may aid in a correct understanding of the situation confronting the municipality, and may tend to vindicate the justice and reasonableness of its action. The city of Oshkosh will hereinafter be referred to as the “City,” the Winnebago Traction Company as the “Traction Company,” and the Eastern Wisconsin Railway '& Light Company as the “Interurban Company.” An attempt will be made to state the facts which are deemed to be material in their chronological order. The organization of the two railway companies and the rights claimed by them upon the streets in the city of Oshkosh are stated in the opinion.

In February, 1902, the Interurban Company entered into a contract with the Traction Company, which is referred to as the traffic agreement, whereby the tracks of the two companies were to be connected, and the Interurban Company was to run its cars in the city of Oshkosh over the tracks of the Traction Company upon the terms and conditions therein stated. It does not appear that the city had official knowledge of this traffic agreement, and it never gave its consent thereto in any manner. It stands admitted that the Traction Company had no authority to operate an interurban road upon its street-car tracks, or to authorize the use of its street-car line for that purpose by another company. The city was not a party to the traffic agreement, and its power over its streets was in no way affected thereby. The city, by an ordinance approved November 10, 1903, granted a franchise to the Interurban Company to maintain a single or double track for an electric interurban street railroad in the streets of Oshkosh therein mentioned, which included South Main street to the Fox river, over and along Main-street bridge, and on North Main street to High street. This was the most direct and feasible route for that company to enter the city, and was the only one ever selected, and was the most convenient in all respects for public travel. There was .a provision in the ordinance that not more than two tracks should be placed upon said streets, including those theretofore laid, or which any other company had a right to lay under any existing franchise; but in lieu of laying such tracks the Interurban Company was authorized to operate its cars over and along such tracks of any other company, “subject to the existing rights of such other company.” At this time the Traction Company claimed the right to maintain double tracks upon Main street and across the bridge. Prior to the adoption of this ordinance, neither the Traction Company nor the Interurban Company had any right to operate an interurban railway or to carry interurban cars over or upon any of the streets or bridges of the city of Oshlcosh.

The common council, by an ordinance passed in November, 1903, and which has since continued in force, prohibited the passing of cars upon any of the bridges in the city of Oshlcosh. This was before any controversy had arisen between the two companies as to their right to lay tracks upon Main-street bridge. At the time the franchise was granted to the Interurbaai 'Company the Traction Company had a single track in Main street, with a switch or turnout commencing upon the incline at the Main-street bridge on the south and ending upon the incline of the bridge approaching the north, but which had never been used as a passing place for cars. It was the contention of the Traction Company at that time that it had the right to maintain a double track on Main street and across the bridge, and this doubtless prompted the proviso in the franchise granted to the Interurban Company -with respect to using the tracks of any other company. After the franchise was granted to the _Interur-ban Company it located its line of railway upon South Main street to the bridge crossing Fox river, thence over the Main-street bridge, and north on Main street to High street, the 'terminus of the interurban road running between Oshlcosh and Neenah. The court has found that the route so selected was the most direct and feasible and the one most advantageous to the public, and that it is essential to the success1 of the interurban railway. The road has been constructed and operated as far north as Main street ever since May, 1906, the construction thereof having been made at large expense under the ordinance of November, 1903.

In 1904 the city determined to replace the Main-street bridge with an entirely new structure, and in December the old bridge was removed, together with all tracks thereon. The Traction Company was then insisting upon its right to maintain a double track on Main street and two- tracks across Main-street bridge as part of a double-track system. The interurban Company claimed the right to maintain one track across the bridge, and, as there could be but two tracks, a contest arose between them, which was determined by this court by a decision announced November 14, 1905, and reported in 126 Wis. 179, 105 N. W. 571. The court there held that the Traction Company did not have the right to maintain double tracks in Main street, but did not decide upon the right to a turnout or switch upon the bridge, as the so-called passing track was there denominated. At about the time the old bridge was removed a memorandum agreement was signed December, 15, 1904, by the Traction Company and by the mayor, clerk, and comptroller of the city, whereby the city was to lay the planking upon the bridge in process of construction and to lay and fasten upon said bridge the rails of the Traction Company, the latter “to furnish all rails for the laying of its double track across said bridge at its own cost and expense.” The Traction Company was to pay its proportionate share of the planking and of the laying of the rails, and ten per cent, in addition thereto. It is to be here noted that it does not appear that the contract contains any provision or suggestion that the tracks are to be usfed as turnout or passing tracks. It will be remembered that the ordinance of 1903 was tben in forcé, probibiting the use of passing tracks upon any of tbe bridges in the city. Part of the rails had been furnished by the Traction Company and laid upon a portion of the new bridge when the decision of this court was announced November 14, 1905, holding that the Traction Company had no right to maintain double tracks upon Main street.

The common council thereupon adopted the resolution, approved November 28, 1905, which gave rise to this litigation, and which this court holds to be unreasonable and void. The preamble refers to the decision of this court with respect to the rights of the Traction Company to lay an additional track upon the streets of the city, the claim of the Interurban Company that it has a right under its franchise to lay its track upon South Main street, and that such tracks had been there laid to the east of the tracks of the Traction Company, and its purpose to extend its track north on Main street, across the bridge, to High street; to the safety and convenience of public travel, which required the removal of the tracks of the Traction Company on Main street north of the bridge from the center to the west side thereof, and that the tracks of the Traction Company be placed on the east side of said street; to the public safety, which demanded that the railway tracks on Main-street bridge and the approaches thereto should run as near as practicable to a straight line parallel thereto, and that no connection with said track be made by diagonal switch upon said bridge or approaches; and to the power of the city to regulate the use and occupation’of its streets and bridges. Thereupon it was resolved that no diagonal switch or connecting track running at an angle or otherwise be permitted to be placed either by the Interurban Company or the Traction Company upon the bridge or its approaches until plans and specifications therefor had been adopted, and directing the city engineer to prepare such plans .and specifications. It further directed the city attorney to take such action as to him should seem proper to prevent either of said companies from so laying its tracks upon the bridge or its approaches. This suit is the result of the adoption of the resolution.

The undisputed evidence demonstrates that the Traction Company was at this time asserting its right under its franchise to lay a switch or turnout track upon the bridge and its approaches, and that the Interurban Company was asserting its right under its franchise to lay its track upon the bridge and its approaches, and that the city asserted its authority to control the occupation of its own streets and to regulate the laying of the tracks upon the bridge and the approaches for the use and convenience of both companies and for the accommodation and protection of public travel. The power of the city to adopt the resolution cannot be questioned. The situation, it seems to me, required that this power 'should be promptly exercised, and that the action taken was just and reasonable and such as the circumstances demanded.

The city, in the franchise ordinance, under which the Traction Company here asserts its claim to the additional track upon the bridge, expressly reserves to itself the power to control at all times the improvement and repair of the streets to the sanie extent as if no grant of the right to use them had been given. The statute also provides that a street railway ■shall be subject-to such reasonable rules and regulations as the proper municipal authorities may from time to time prescribe. Sec. 1862, Stats. (1898). The grant to the Traction Company was not an exclusive franchise to occupy Main street or the bridge for railway purposes, and it cannot be construed as limiting the power of the city to permit another company to lay its tracks thereon, and if necessary to require the Traction Company to remove its tracks to one side, provided it be furnished a suitable and convenient location. This court holds that the regulations prescribed by the city, which are here challenged, are within the power possessed by the municipality, if reasonably exercised, but determines, contrary to the finding of the trial court, that the resolution adopted by the common council is void as partial and unreasonable. The reasons assigned for the last conclusion seem to me ■wholly untenable.

The court condemns the proposed regulations because of the supposed effect they may have upon the relations existing between the two railway companies. It is said in the opinion:

“One result was to abrogate the contract made by the city with the Traction Company one year before the passage of these resolutions, and to confiscate whatever property had been contributed in pursuance of said contract, or whatever payments, if any, had been made therefor by the Traction Company.”

The undisputed evidence showed that no such result can follow. After the adoption of the resolution of November 28, 1905, here in question, the attorneys for the Traction Company addressed a communication to the common council, dated December 16, 1905, containing a stipulation for the speedy completion of the bridge, which was accepted on behalf of the city. In order to hasten the completion of the Main-street bridge and give the public the immediate benefit of its use, the Traction Company proposed that the city should lay the rails on the east side of the bridge in the manner specified. The rails were to be^so laid that neither company could make use of the track until the right thereto should be determined by the court. The Traction Company was to furnish the rails and to be reimbursed on the conditions stated. The east track was to remain in the possession of the city until title thereto should be adjudicated. If it should be determined that the Traction Company was not entitled to maintain and operate said east track, it agreed to convey the rails so laid to the city, or to whomsoever it should direct, upon the payment to the Traction Company of the actual cost of the rails, with five per cent, added. This stipulation continues in force and fully protects the rights of .the Traction Company to the property which it had contributed and the money which it had expended in connection with the track on the east side of the bridge. The track on the west side remained in its possession. The stipulation so readily entered into shows beyond question that it was not the purpose of the city, in adopting the resolution of Uovember 28th, to appropriate to itself the rails and other material furnished by the Traction Company toward the construction of the bridge, or that either party contemplated any such result.

In this connection it may be well to' state that on December 14, 1905, the common council adopted what is known as the “Randall plan” for laying the tracks of both companies on Main street, which obviated the necessity of any switch or turnout track for the use of either company upon the bridge or its approaches. This plan contemplated an interchange of tracks between the two companies, giving the west track to the Traction Company and the east track to the Interurban Company, the Traction Company to come in from the south on the east track and go out on the west track, and the Interurban Company to come in from the south on the east track and go out on the west track. There was provided a double cross-over track near High street, north of the bridge, so as to fully accommodate the running of the cars of both companies. There was, therefore, no confiscation of the property of the Traction Company under the contract of December 15, 1904, as provision had been made for reimbursement under the agreement above mentioned.

. This court, it seems to me, has given too much importance to the contract entered into between the city and the Traction Company on December 15, 1904. It does not seem to have been expressly authorized by the common council, nor does it in form or in fact grant a franchise to the Traction Company or enlarge the terms of any franchise theretofore granted. The Traction Company was then asserting a legal right to construct a double-track railway system upon Main street across tbe bridge. Tbe city could not determine tbe legal question involved, and it did not attempt to. It was engaged in tbe construction of tbe now bridge, and deemed it advisable to lay tbe track as part of tbe bridge, permitting tbe Traction Company to furnish tbe rails and to pay part of the cost. Tbe Traction Company agreed “to furnish all rails for tbe laying of its double track across said bridge,” and not ■for a switch, turnout, or passing track. Tbe situation was changed by tbe decision of this court, a year later, that tbe Traction Company bad no right to maintain a double track in Main street and across tbe bridge, and tbe city then bad tbe right to take such action with respect to tbe matter as it ■deemed for tbe public interest, making proper compensation for any property that might have been furnished for its use •on tbe bridge. The ordinance adopted in November, 1903, prohibited cars from passing on this bridge; hence tbe city by tbe contract of December, 1904, could not have intended tbe ■construction of a passing track by tbe Traction Company upon tbe bridge or its approaches. It is apparent that a contract providing for tbe cost of laying the rails on the new bridge in no way contemplated or recognized any claim by the Traction Company to operate a switch or turnout or passing track upon the bridge, to be connected at each end thereof with the single-track system for the purpose of allowing cars to pass on tbe bridge while going in different directions. Tbe right to maintain the additional track for such purpose was not asserted by the Traction Company until its right to maintain a double track bad been denied by this court, and tbe ■claim was then promptly repudiated by tbe city, which refused to construct a passing track upon the bridge under tbe •contract relating to tbe construction of double tracks upon the bridge. It did construct one track upon the west side of the bridge-for the use of the Traction Company, and constructed the east track on the bridge under tbe subsequent agreement above referred to, and then made provision for its use by both companies, which furnished them proper facilities and the traveling public the necessary accommodations. The adoption of the resolution of November, 1905, did not, therefore, deprive the Traction Company of any property or of any property right which was not subject to compensation by the city or by the Interurban Company, and which, if denied, might not be enforced by proper legal proceedings.

With respect to the adoption of the resolution of December, 1905, it is said in the opinion: “Another result was to deprive-the Traction Company of its rights under the traffic contract with the Eastern Wisconsin Railway & Light Company, such as they were.” The city had never been informed officially of the existence of any such contract, it was not a party to- it,, and it never recognized it in any manner as having any controlling power over its own action in the regulation of its streets. It is said in the opinion: “Both the city and the Eastern Wisconsin Railway & Light Company had by ordinance of November 10, 1903, recognized the right of the-Winnebago Traction Company to compensation.” It is respectfully submitted that the ordinance, as passed by the-common council and as accepted by the company, contains no such recognition on the part of the city. That ordinance-grants a franchise to the Interurban Company to lay single or double tracks and operate its road upon the streets of the-city therein named for a strictly interurban business, the company to hold the city harmless from any damages of whatever-kind or nature resulting to property owners by reason of the construction or operation of its railway. The proviso has already been referred to which prohibits the laying of more-than two tracks upon the streets, including those theretofore laid, or which any other company has a right to lay under existing franchises, and authorizes the company to operate its cars over the tracks of any other company, “subject to the-existing rights of such other company.” The Interurban. Company could not operate its cars over the tracks of the Traction Company without the permission of the city, nor could the Traction Company operate cars over its own tracks without such permission. The city could not grant to the Interurhan Company the right to use the tracks of the other company without the consent of the latter, and the clause quoted was doubtless inserted as a matter of precaution, and to ingraft -what the court would supply in case of any controversy upon the subject. The language can be nothing more than the recognition of a. legal condition — the statement of a conclusion of law with respect to the rights of the parties. The Traction Company was not a party to this grant, and its rights were in no way affected thereby; hence the proviso' cannot be fairly construed as a recognition of any right to compensation which would limit the power of the city to control its own streets in the interest of the public. The reasonableness of the resolution cannot be tested by simply referring to the permissive grant of this franchise, whether it recognizes the right to compensation or not, or by affirming that the regulation was in fact detrimental to one and beneficial to the other company. The power of the city cannot be thus limited- or the reasonableness of the act thus siunmarily determined. Moreover, if the traffic agreement is valid, it may be enforced in any proper proceeding brought for that purpose. The trial court has found that the Interurhan Company is solvent, and it has given a sufficient bond to insure its part of the agreement. The action of the city has not and could not prevent the enforcement of any legal rights which one company then had or now has against the other under any existing contract. It seems to- me dangerous to hold that the municipality can be restricted in the exercise of its police powers and in the control of its own streets by an independent agreement entered into- by third parties without its knowledge or consent.

The court states as a further result of the adoption of the resolution that the Traction Company was deprived of its right to compensation in any condemnation proceeding instituted by the Interurban Company for the purpose of acquiring the right to cross the bridge. No such consequence could follow the action of the city unless the Traction Company has acquired a vested right to occupy the east side of the bridge with its turnout track. But the court concedes that the city has the power to adopt the resolution in question, and hence it may order the removal of the track whenever necessary for public convenience and safety. Such removal might be ordered at any time, .and might now be held reasonable by this court but for the fact that the Interurban Company thereby derived some benefit. What compensation would the Traction Company be entitled to- recover for the loss of a turnout track held by such uncertain tenure ? Moreover, the Interurban' Company may never commence condemnation proceedings; if so, nothing more than nominal damages might be awarded. Can the reasonableness of municipal regulation of the streets be made to depend upon circumstances so remote and speculative when important public interests are involved ? The resolution does- not take away any vested right of the Traction Company and has not deprived it of the use of the east track upon the bridge, which has been placed there at the expense of the city for the accommodation of both railways. As already shown, the Randall plan adopted by the city furnishes adequate facilities-for the use by both companies of the tracks upon the bridge in connection with their tracks upon both sides thereof, and the public is provided with better accommodations and with adequate protection from dangerous obstructions.

The consideration controlling the decision of the court is •the supposed injury inflicted upon the Traction Company and the possible advantage derived by the Interurban Company by the adoption of the resolution in question. It is said in the opinion:

“Rut tlie city Rad no right to intervene in such, an ex igency and in effect annul and take away such, rights of the Traction Company, even if the public interest did: require that the passing track or turnout be removed from the bridge, because such exercise of its police power would be unreasonable under the circumstances above shown.”

The situation might, as I think it did in this case, demand the immediate exercise by the municipality of its control over the street and bridge. Nevertheless it must postpone action until rival companies asserting adverse claims to occupy the locality with their tracks have settled their differences amicably or in the courts; otherwise its action is subject to con.demnation as unreasonable and partial; The reasonableness of the regulation is made to depend upon the effect it may have upon the disputed rights of third parties as between themselves, and not upon the safety and convenience of the public. Every police regulation necessarily affects persons subject thereto, abridging the rights of some, possibly enlarging the privileges of others; but the reasonableness of the exercise of the power cannot be determined upon any such indirect consequences. The exercise of such power in the public interests cannot, as a matter of law,-be denounced as unreasonable because it naturally and necessarily affects existing conditions, and operates to the injury of one and to the advantage of another person. This court does not impugn the good faith of the city authorities in adopting the resolution, but it assumes to challenge their judgment in the attempted exercise of the power of regulation. The judgment of a legislative body, based upon a knowledge of existing conditions which no judicial tribunal can be presumed to possess, has not generally been considered the subject of review by the courts.

“The honest judgment of the municipal authorities as to what is promotive of the public welfare must ordinarily control, although not in accord with the views of the com-t.” Le Feber v. West Allis, 119 Wis. 608, 613, 91 N. W. 203.

Tilly v. Mitchell & L. Co. 121 Wis. 1, 98 N. W. 969, has, it seems to me, controlling weight in the determination of the question here under consideration. While the court there holds that the reasonableness of a municipal regulation may be judicially reviewed, it points out that such review involves the question of power to pass the act, and not an inquiry into its expediency, justice, or propriety. It is there said:

“The claim is and was that the ordinance of vacation was passed solely for the private benefit of the defendant corporation, and that the public good in no way demanded it, and hence that it was illegal and void. So the question really is whether in this action the validity of the ordinance can be challenged on the ground that the council acted from a wrong’ motive. Corruption is not claimed, fraud is not claimed, and want of power is not claimed; but the simple claim is that the members of the council, in exercising their legislative powers, acted from improper motives and subordinated the public interest to the private interests of the defendant corporation. The general principle that legislative acts, within the power of the legislative body to pass, are not subject to revision or control by the courts on the ground of inexpediency, injustice, or impropriety, is well settled, and has nowhere been stated with greater vigor than by this court. ... In, both of the cases quoted from, acts of the legislature were under considerationbut the same general principle has been frequently recognized as applicable” to the acts of the common council which are legislative in their character, as is the ordinance under consideration.”

And further:

“The sole claim is that the council have vacated a part of a street for a private use when it was needed by the public. This means that the motives of the councilmen were wrong and their judgment unsound. We think the courts will not entertain an inquiry into the truth of these charges. The ordinance was within their power to pass. On its face it purports; to be passed for a purely public purpose. Such a' purpose is entirely possible, notwithstanding a private benefit may at the same time inure to the defendant. Even though the council may have been wrong in its judgment, or ■may Rave mistaken a private interest for a public one, our conclusion is that tlie courts cannot arrest the operation of the ordinance for those reasons.”

The result of the decision of the court is to deprive the city .of OsliJcosh of the authority delegated to it by the legislature to regulate and control the use of its streets in the interests of the public, and to confer that power in a limited though in a Very important degree upon the Traction Company, to be exercised by it for its own private interest and advantage. Tho municipality should determine upon what terms and conditions an interurban company should occupy its streets for interurban traffic; but this right which is to be exercised for tlie public benefit is taken away by the grant of a franchise, which is not in terms exclusive, to a street railway company, which has thereby acquired the right to maintain a turnout track upon the bridge at the main entrance of the city, and impose such terms as it deems fit for its private advantage as a condition for the admission of interurban traffic. The claim so asserted on behalf of the appellant ought not to receive the ■solemn sanction of this court.

I respectfully but emphatically dissent from the doctrine that the power of the municipality to control its own streets in the interest of the public can be subverted by an independent .agreement between third parties entered into without its knowledge or consent, or by the grant of a franchise to a street railway company which is not in terms exclusive as to a particular location therein specified, or by a contract entered into on its behalf with such company, unless authorized by the common council and approved in the manner prescribed by law for the adoption of a franchise ordinance.

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Rehearing

The following opinion was filed May 8, 1908:

TiMiurr,- J.

Respondents move for a rehearing, finding error and obscurity in tlie former opinion, wbicb to tbe appellant appears “clear, comprehensive, and decisive.” So do our interests affect our judgments. ISTo new question affecting the merits is presented Try the motion; but .the earnestness, ability, and industry of respondents’ counsel deserve some attention beyond the mere formal denial of the motion. Perhaps counsel have not made sufficient allowance for the brevity, essential in judicial opinions, which constrains us to condense into about a dozen pages that which they have presented to us in 865 pages of briefs. It is said we should not have dismissed the complaint or complaints of the respondents. The complaint of the railway company was dismissed for want of equity principally upon the following grounds: (1) After finding in favor of the appellant upon the invalidity of the resolutions and regulations and declaring appellant’s ownership of the passing track on the bridge, there was neither finding nor proof left sufficient to- show that the appellant, otherwise than by merely making claims, interfered or attempted to interfere with the building in other portions of the street of the roadway of this respondent. This constituted a failure of indispensable proof, because the bill is in no sense quia timet. (2) We are unwilling at present, and without further argument and authority, to affirm that the interurban railway can purchase from the city for a cash consideration the consent of the city, or the passage of an ordinance authorizing the laying of its tracks in the streets. The former opinion, reported in 126 Wis. 179, 105 N. W. 571, and adhered to, was given upon the showing there made that the appellant was wrongfully interfering with and obstructing-the construction of respondent’s railway, and we believed this conduct could not be justified by reason of any irregularities- or imperfections, if any there- are, in the ordinance mentioned.. The complaint of the city was dismissed for want of equity, because we consider the complaint as ancillary to the complaint of the Interurban Company, because we reject the view that the city was impartially trying to- protect itself against both corporations, and because the gravamen of that complaint is to enforce conformity to resolutions and regulations held ■unreasonable and void, and because there is, aside from such resolutions and regulations, nothing in the findings or proof to sustain an injunction such as prayed for by the city. The usual consequences of such dismissal will follow.

The status quo means, of course, the conditions existing at the time of the commencement of this action, modified or altered only by adjudications or proceedings in this action. The declaration that the status quo should be maintained has particular reference to forbidding any further attempted intervention by the city by way of resolution or ordinance pending the determination of this controversy, forbids changing back to their former position in .the middle of the streets the tracks of the Traction Company, does not continue in existence or prevent the termination of the so-called modus vi-vendi agreement, nor prevent the Traction Company from connecting its passing track at the north and south ends thereof with its main track by cross-over connections, nor prevent the Traction .Company from disconnecting' the passing track in question from the tracks of the Interurban Company at the north and south ends of the passing track, nor prevent the Traction Company from forbidding and preventing the Eastern Wisconsin Railway & Light Company from using the track of the Traction Company without compensation to be fixed by agreement or condemnation. These rights will be preserved to the Traction Company by the decree. We do not determine whether or not the Traction Company is entitled to compensation for the cost or disadvantage of removing its tracks under the removal heretofore made, because that question is not before us. With reference to this recovery it cannot be had in this cause, and the Traction Company may proceed as it shall be advised. We express no opinion. As we understand the situation, the tracks have been removed from the middle of the street either by the city' authorities or pursuant to an order of the city authorities, it matters not which. This is a fact accomplished. It therefore remains accomplished. We understand that the Eastern Wisconsin Railway & Light Company cannot reach its tracks north of the bridge without passing* over the bridge on the track of the Winnebago Traction Company, and the decree herein will continue this restraint until the former acquires the right to reach those tracks in the manner pointed out.

■' The pleadings of the respondents in this case showed sec. 2 of the ordinance of November 10, 1903, as quoted in the opinion heretofore written. The case as printed failed to show any amendment allowed; but, as shown by the written record, an amendment was duly allowed to these pleadings, showing that that section of the ordinance was amended by ■striking out the concluding words, “by purchase, lease, or ■other contract arrangement with such company, or any other ■company now owning or using an existing track or tracks along any of said streets,” and inserting in lieu thereof, “subject to the existing rights of such other company.” We do not think this amendment materially changed the legal effect of the ordinance as a recognition on the part of the city and on the part of the Eastern Wisconsin Railway & Light Com* pany that other tracks had been theretofore laid by the Traction Company, and that the Eastern Wisconsin Railway ,c£. Light Company took, and that the city gave, the franchise or permit subject to and with notice of the rights of the Traction Company. When we consider that the traffic agreement between these corporations existed at the time that sec. 2 of the ordinance as it originally existed was enacted, and that the cars of the Eastern Wisconsin Railway & Light Company were then being carried over the tracks of the Traction Company openly and notoriously, and that this amendment was made at the instance of the Eastern Wisconsin Railway ¡&. Light Company, there seems to be no escape from the conclusion that the latter w*as then planning to1 repudiate its traf-fie contract, or else that tire words “subject to tbe existing rights of such other company” meant subject to the existing right of the Traction Company to charge a compensation to the respondent for the use of its track. It is proper to note the fact of this amendment for its bearing on possible future litigation, but it in no wise tends to change the conclusion that this court has formerly arrived at.

We think this covers all the points upon which counsel for the respondents found the first opinion ambiguous or obscure. With reference to the motion for rehearing on the merits, we have given the matter careful consideration and we have found nothing to shake our confidence in the correctness of the opinion heretofore announced.

By the Qourt. — The motion for rehearing is denied, with $25 costs.