Superior Court of Cincinnati.

Naturally, in accordance with reason and the principles of law governing parties and rights similarly conditioned, this sharing of the right to use and occupy the streets and the tracks thereon for the operation of cars, must be subject to the terms and conditions governing the use of the right in the original possessor.

This would seem to be true even if no limiting words were introduced into the statute respecting the terms of the contract in this respect, because, on principle, a mere right given to a tenant to contract with a sublessee for a joint use must by implication be confined to such right of use as the primary lessee possesses.

It seems plain, therefore, that the words of Lan. R. L. 5543 (R. S. 3443-11), "upon the same terms and conditions applicable to other street railroads," mean that the right to be shared is that, and that alone, which is possessed by the municipal company; and that the use acquired by the interurban company is to be governed by the terms and conditions governing a like use by the municipal company.

We are strengthened in this view by an admission of one of the counsel for the municipal companies.

"The words, 'same terms and conditions," says the brief before us,-"must therefore relate to means of transit and rates of fare as those matters exist over the line of railway selected and described by the traffic agreement."

In the oral argument, other counsel while admitting that a lease or purchase would subject the interurban company to the obligations resting upon the municipal company, contended that a traffic agreement was quite a different thing and had no such legal effect. The reasoning upon which it was attempted to support this theory was not clear; and, as the two propositions are inconsistent, we must understand the later expression as an abandonment of the former position. Its significance will be considered later.

There seems to be some confusion, however, in the use of the expression "traffic agreement." The agreement is thus termed in the petition and in argument; but, while the petition does not set forth its details, enough appears to show that under it the interurban company is using certain tracks of the municipal company for the operation of its cars to and from its own independent terminal depot in the city. A grant of such use is in the nature of a subleasing of the tracks; and it seems a misnomer to call such an arrangement a "traffic agreement," because the latter implies, as an essential condition, an interchange of commodities or passengers between the roads from one to the other. And it is this latter sort of arrangement which seems to be covered by the latter part of Lan. R. L. 5543 (R. S. 3443-11), which provides, in effect, that when the municipal road receives the cars,

Cincinnati v. Railway.

freight, packages or passengers, of the contracting interurban road, for transportation, it shall do so upon the same terms and conditions as they carry for the general public.

The mere name which the parties give to their contract can in nowise alter its legal character or effect, which is determined by the actual facts. In this case the admitted fact is that the interurban company is operating its own cars and carrying passengers over the tracks of the municipal company,-which is a character of use indicating, in effect, a leasing.

It is claimed by the city solicitor that Lan. R. L. 5547 (R. S. 2505-c), passed only four days later than the act already considered, also has application to the present controversy.

This provides, in substance, that a railway company, organized to build or operate an electric railway from one municipality or point to another in this state, shall be authorized to make an arrangement or agreement with a municipal street railway whereby the passenger cars of the interurban company may be operated over the tracks of the municipal company for such compensation as may be agreed upon, "upon the same conditions and for the same length of time,

as those of the municipal company are operated, and be "subject to all the obligations imposed upon the municipal street cars;" that, insofar as the interurban cars use only the tracks of the municipal street railway, "it shall not be necessary to obtain any additional grant or franchise other than that obtained by said agreement or arrangement;" and, provides that the "fare charged in the municipality shall not be greater than that fixed in the franchise held or owned by" the municipal street railway.

The defendants contend that this statute has no application, because it is primarily designed for so-called commercial railroads-a contention based, largely, it would seem, upon the absence of any qualifying word before "railway" in the opening sentence; and upon a passing dictum of Summers, J., (now of the Supreme Court) in State v. Traction Co. 10 Circ. Dec. 212 (18 R. 490, 497) in which he intimates, while disclaiming any purpose to construe the scope of the law, that it may refer to commercial railways only.

We do not deem it necessary here to determine this point, because the fact that these sections were under consideration by the legislature at the same time, suggests-as Judge Summers also intimates -that they are not in conflict. But, if we accept the cited dictum of Judge Summers, and if the construction we have indicated for Lan. R. L. 5543 (R. S. 3443-11) be the true one, then, certainly, they do not conflict, because the legislature was providing for contracts authoriz ing a municipal street railway to share its possession of streets, with two

15 Dec. Vol. 16

Superior Court of Cincinnati.

classes of intermunicipal railways, differing only in name, but organized for substantially the same kind of traffic, namely; that between municipalities.

This fact, therefore, of itself sheds light upon the intent and meaning of the legislature in the earlier act, for we cannot suppose any material difference was intended, because there were manifest reasons for granting the same but not different privileges. Mere differences in terminology are naturally to be expected where laws are drafted by different individuals.

It should be noted, however, that, for aught that appears in the present case, the defendant interurban company may be of the class specified in Lan. R. L. 5547 (R. S. 2505c), rather than in Lan. R. L. 5543 (R. S. 3443-11); for it is a fact of common knowledge that very many of our interurban railways distinctly avoid occupying the highways outside of the municipalities, but build upon private rights of way acquired by purchase, in order to operate at higher speeds and avoid the liability of accidents incident to highway occupancy.

There are but few expressions upon the purpose and scope of the law in question that appear in print, and these do not throw direct light upon the question under consideration. In State v. Traction Co. 64 Ohio St. 272, 281 [60 N. E. Rep. 291], Judge Shauck refers to the general definition of street railways as immaterial

"In view of recent legislation in which the term is applied to roads constructed upon highways, interurban as well as urban, the only requirement being that in construction and operation they shall be consistent with the former and ordinary use of such highways,

"it is well known that in response to a general demand for increased traffic facilities between cities and the regions surrounding them that the act of May 14, 1894 (94 O. L. 285), which is now included in Secs. [Lan. 5540 to 5545] 3443-8 to 3443-13 Rev. Stat., was enacted.

In Hamilton v. Railway, 8 Dec. 174 (5 N. P. 557), it was held that Lan. R. L. 5545 (R. S. 3443-11) presents merely an alternative mode of entering the city. "This" (section), said the court, "may in some sense enlarge the rights of a road built wholly without a municipal corporation, but it would not prevent a road under a proper charter from building into the city."

In Opinion of Attorney-general, 39 Bull. 113, 115, it is held that interurban companies entering a municipality by virtue of the section under consideration, "at once become subject to the statutory regulations and municipal control of the street railroads proper.'

99

It is contended that the city has no right to sue because it is not a party to the so-called traffic agreement; but we do not understand that the suit of the city is based directly upon the traffic agreement. The city entered into contract relations with the street railway com

Cincinnati v. Railway.

pany whereby it granted to it and its assigns certain privileges of operating street cars in its streets upon certain conditions. It is conceded that the traction company, lessee, stands in the shoes of the street railway company. The legislature, meantime, granted authority to the traction company to take a partner or sublessee, under its contract with the city, with whom it is authorized to share its rights and obligations pro tanto. The traction company and interurban company by virtue of this authority and with full knowledge of the conditions, entered into the arrangement whereby the interurban company became, in effect, a second party with the traction company to the franchise contract under which alone the privilege to use the streets was obtained. This suit, therefore, is based not upon the traffic contract, but upon the voluntary assumption of rights and the corresponding obligations under the franchise contract, by the interurban company, as one of the contractual assigns of an integral part of the original franchise

The law under which the traction company assumed to grant, and the interurban companies assumed to accept and exercise the privileges held by the traction company, and by which alone such transfer of rights is authorized, is part of the agreement whether so expressed in the terms of the latter or not. Weil v. State, 46 Ohio St. 450 [21 N. E. Rep. 643]; Moody v. Insurance Co. 52 Ohio St. 12, 23 [38 N. E. Rep. 1011; 26 L. R. A. 313; 49 Am. St. Rep. 699]. The law was its sole source and inspiration and it could have no validity otherwise. The acceptance of these privileges was also the acceptance of the obligations attaching to them; and the contract itself was, therefore, in effect, a contract made for the benefit of a third party, namely: the public in its municipal capacity, which granted the easement or franchise which is being used.

The case therefore, as it seems to us, falls directly under the language of Lan. R. L. 3280 (R. S. 1777), authorizing the city solicitor to sue in the name of the corporation, and "whenever an obligation or contract made on behalf of the corporation granting a right or easement, or creating a public duty, is being evaded or violated, apply for the forfeiture or the specific performance of the same as the nature of the case may require," or for an injunction as provided earlier in the section.

We have adverted to the admission of counsel for defendants, that the contract in question subjected the interurban company to the same conditions as to rates of fare to be charged as were obligatory upon the traction company. This is a virtual admission that the transaction, in effect, brought the interurban company into relations of privity with the city in respect of the franchise contract which established such obligation.

But the fare, charged under the franchise granted by the Rogers law resolution, was defined as a condition of the grant under which the municipal street railway and its assigns were obligated to transport a passenger paying a specified cash sum, not only upon the route upon

Superior Court of Cincinnati.

which he was then going, but a further distance on a connecting route, continuing in the same general direction, upon his demanding such right. His continued journey, upon demand, is the consideration for the cash fare paid. To cut off half the ride, is, in effect, to double the fare as much so as if a railway company, having contracted to carry a passenger from one terminal to the other, of a given route, were to collect the entire fare upon the first half and then demand a second fare for the latter half of the route.

It is idle, as it seems to us, to claim that the ride upon a transfer, under the franchise in question, is a mere "privilege" intended for municipal passengers only, which constitutes no part of the consideration for the fare, and which may be omitted without violating the terms of the contract when transporting a passenger who may come into the city from extra-urban territory.

That the contention is not sound is shown, moreover, by the admitted fact that the interurban cars operating over the municipal tracks, do also a purely municipal business, although this is claimed to be incidental to the main purpose of transporting interurban pas

sengers.

But it is also admitted that these municipal passengers are denied. transfers; and it is manifest, therefore, that the proposed principle of classification is a one-sided doctrine that does not work in favor of the public, but only against it. It does not break the force of this obvious deduction to say that the use of interurban cars by the municipal public is "voluntary." This can only mean that the municipal public use the interurban cars within the corporation, knowing that transfers are refused-which begs the question. It is obvious that the theory of separate public rights, in respect of transportation over municipal tracks, is too shadowy for practical enforcement.

We find no warrant in the legislation providing for interurban and extra-urban railroads, for the theory of classification of municipal and interurban passengers on any such basis as would discriminate in favor of one and against the other, as contended in argument, with respect to rights of transportation on municipal street railroads. On the contrary, as the rights in question emanate from the same source, to wit, the state, representing the people in their sovereign capacity, we must suppose an intention to grant the same rights to all.

Such, in effect, we find and construe to be the meaning of the specific language of the statute under consideration, namely: an expression of legislative intent that interurban passengers brought into the city over municipal trackways controlled by municipal street railways, shall not be discriminated against, but shall have exactly the same rights of transportation within the city as residents.