Argument for Plaintiff in Error.

demurrer and dismissing said petition is here assigned by the relator as error.

Mr. Wade H. Ellis, attorney general; Mr. Smith W. Bennett; Mr. O. E. Harrison; Mr. Morison R. Waite and Messrs. Dempsey & Fridman, attorneys for plaintiff in error, cited and commented upon the following authorities:

Railroad act of 1852 (50 O. L., 2741); Railroad Co. v. Sullivant et al., 5 Ohio St., 276; In re Pittsburg Transfer Railway Co., 1 Pa. Co. Ct. Rep., 411; People v. Cheeseman, 7 Colo., 376; Lewis on Eminent Domain, 231; Hatch v. Railroad Co., 18 Ohio St., 92; Hickok v. Hine, 23 Ohio St., 523; Railroad Co. v. Dayton, 23 Ohio St., 518; Stanley v. Davenport, 54 Ia., 468; Railroad Co. v. Blind Institute, 43 Ill., 303; S. & C. Statutes, 378, art. 29; Eichles v. Railroad Co., 78 Ind., 261; Railway Co. v. Memphis, 10 Wall., 38-51; Davis v. Mayor, 14 N. Y., 506; Coleman v. Railway, 38 N. Y., 201; People v. Kerr, 27 N. Y., 188; In re Niagara Falls Ry. Co., etc., 108 N. Y., 375; Railroad Co. v. Brainard, 9 N. Y., 100; People v. District Court, 11 Colo., 147; In re R. H. & L. Railroad Co., 110 N. Y., 119; Sholl v. Coal Co., 118 Ill., 427; Stack v. St. Louis, 85 Ill., 377; Edgewood Railroad Company's Appeal, 79 Pa. St., 257; Electric Co. v. Simon, 20 Ore., 60; 10 L. R. A., 251; Kyle v. Railway Co., 4 L. R. A., 275; Railway Co. v. Iron Works, 31 W. Va., 710; Smith v. McDowell, 148 Ill., 51; LeClercq v. Gallipolis, 7 Ohio (pt. 1), 218; Stevenson v. Mayor, 20 Fed. Rep., 586; State v. Berdetta, 73 Ind., 185; St. Paul v. Railway Co., 63 Minn., 330; Smith v. City of Leavenworth, 58 Kan., 81; Mikesell v. Durkee, 34 Kan., 509; 27 Am. & Eng. Ency. Law, 518; Minnesota v. Union Depot Co., 42

Argument for Defendant in Error.

Minn., 142; Union Depot Co. v. Morton, 83 Mich., 265; Coosaw Mining Co. v. South Carolina, 144 U. S., 550; McCandless' Appeal, 70 Pa. St., 210; Freight Co. v. Mayor, 4 Cold., 423; Angell & Ames on Corporations (10 ed.), 810; In re N. Y. & H. R. R. Co. v. Kip, 46 N. Y., 546; Mills Eminent Domain, 46; Railroad Co. v. Met. Gas L. Co., 63 N. Y., 326; Wood Railway Laws, 643; Rorer on Railroads, 298; Cooley Constitutional Limitations (4 ed.), 660; Bloodgood v. Railroad Co., 18 Wend., 59; Currier v. Railroad Co., 11 Ohio St., 228; Coal Co. v. Wigton, 19 Ohio St., 560; 69 O. L., 163; 3 Sayler, 2751; State v. Liffring, 61 Ohio St., 39; Baldwin on American Railway Law; Act of April 10, 1861 (58 O. L., 66); Act of April 12, 1876 (73 O L., 229); Act of Feb. 11, 1848 (S. & C., 271); Act of May 1, 1852; Act of March 8, 1865; Act of April 29, 1872 (69 0. L., 203); 23 N. J. Eq.; 29 N. J. Eq.; secs. 3237, 3270, 3271, 3324, 3341, 3366, 3437, 3538, 3445-1, 3446, 3447, 3472 and 4475, Rev. Stat.

Mr. Ellis G. Kinkead; Mr. Byron M. Clen Dening and Messrs. Galvin & Galvin, attorneys for defendant in error, cited and commented upon the following authorities:

Commissioners v. Railroad Co., 29 N. J. Eq., 566; Railway Co. et al. v. Railroad Co., 32 N. J. Eq., 755; Railroad Co. v. State, 53 N. J. Law, 217; Ferry Co. v. Railroad Co., 107 Ill., 450; Railroad Co. v. Railroad Co., 41 Fed. Rep., 293; Railroad Co. v. Railroad Co., 109 Ga., 827; Ligare v. Railroad Co., 166 Ill., 249; Railroad Co. v. Railroad Co., 112 Ill., 589; Moses v. Railroad Co., 21 Ill., 516; Bridge Co. v. Railroad Co., 6 Paige (N. Y.), 554; Railroad Co. v. City of Brownsville, 45 Tex., 88; McCartney v. Rail

Opinion of the Court.

road Co., 112 Ill., 611; Railway Co. v. Depot Co., 125 Mo., 82; 28 S. W. Rep., 483; Mason v. Railroad Co., 35 Barb. (N. Y.), 373; Railroad v. Adams, 40 Tenn., 596; Pittsburg Transfer Railroad Co., 1 Pa. Co. Ct. Rep., 411; In re Rapid Transit Co., 103 N. Y., 251; Railroad Co. v. Sullivant, 5 Ohio St., 276; People v. Cheeseman, 7 Colo., 376; 27 Am. & Eng. Ency. Law, 518; Collier v. Railway Co., 83 S. W. Rep., 155; Mills on Eminent Domain, sec. 11; Stewart v. Railway Co. (Minn.), 68 N. W. Rep., 208; 33 L. R. A., 427; Bouvier's Law Dictionary; Callender v. Railroad Co., 11 Ohio St., 516; Act of 1872 (69 O. L., 163); State v. Liffring, 61 Ohio, 39; Act of Feb. 11, 1848; secs. 23, 3237, 3270, 3271 and 3446, Rev. Stat.

CREW, J. In the petition filed by relator in this case in the circuit court of Franklin county, it is alleged that the defendant, The Union Terminal Railroad Company, is a corporation formed under the laws of the state of Ohio and doing business in such state, with its principal office and place of business located in the city of Cincinnati, Hamilton county, Ohio. That in its application made to and filed with the secretary of state of the state of Ohio for its articles of incorporation, said corporation by its incorporators represented to the secretary of state that it was formed:

"For the purpose of constructing or acquiring, maintaining, operating and owning a single or double track railroad, with all the necessary branches, side tracks, turnouts, depots, round houses, machine shops, water tanks, telegraph lines and other necessary appliances within the corporate limits of the city of Cincinnati, Hamilton county, Ohio, for the transportation of freight, passenger and express

Opinion of the Court.

cars, and as a common carrier of freights of all kinds by means of the transfer of cars between all the various lines of railroads, now or hereafter entering and doing business in the city of Cincinnati; also for the purpose of receiving from, delivering to, and forwarding over, said various lines of railroads shipments of freight for the public in general, and to provide the yards and depots necessary for the storage, accommodation, and transfer of freight, express and passenger traffic, to, from and between all said railroads; the said railroad shall be constructed and operated between the points, to-wit, commencing in the western part of the said city of Cincinnati, at or near the intersection of Jeptha and Budd streets, if said streets were extended to meet, and extending in an easterly and northerly direction throughout such streets, highways, and private lands, in the central portion of said city of Cincinnati, as may be the most eligible and suitable for a proper and convenient connection between the various railroads now or hereafter entering and doing business in the said city of Cincinnati, having reference to grades, the public use of streets, and the location of the shippers patronizing said railroads and this corporation, to a point in the eastern part of said city of Cincinnati, at or near the intersection of Court street and Eggleston avenue."

That the secretary of state thereupon, on the first day of July, 1904, issued to the said defendant a certificate of articles of incorporation and therein recited the purposes above set forth as those for which the said defendant corporation was formed; and the same was duly recorded in the office of the secretary of state, as by the statutes of Ohio required. It is further averred that said Terminal Com

Opinion of the Court.

pany by virtue of the powers conferred upon it by its said articles of incorporation claims to have and possess, and is about to exercise, the rights, privileges and powers conferred upon railroad companies created and organized under the laws of Ohio. In the answer of the Union Terminal Railroad Company these several averments are expressly admitted, so that the sole issue presented by the pleadings in this case, and the only question now before this court for determination is, Is the defendant company, organized for purposes as shown and stated in its articles of incorporation, a railroad company, and as such entitled to have and exercise all the rights, privileges and powers conferred upon railroad companies by Part Second, Title II, Chapter 2, of the Revised Statutes of Ohio? Considering the purpose of the incorporation of said Company, as set forth in its articles of incorporation, it must, we think, be conceded, that the answer to this question must be found in the construction proper to be given to the language of section 3270, Revised Statutes, which section is a part of the aforesaid Title II and Chapter 2, and reads as follows: "A railroad company now existing or hereafter created may maintain and operate, or construct, maintain and operate a railroad, with a single or double track, with such side tracks, turnouts, offices, depots, round houses, machine shops, water tanks, telegraph lines, and other necessary appliances as it deems necessary, between the points named in the articles of incorporation, commencing at or within, and extending to or into any city, village, town, or place named as a terminus of its road." It is the contention of counsel on behalf of relator in this case, that because of the provisions of this section no corporation formed