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be. It is said that he is a client of Mr. Delone, and will be influenced by him; but that is an undue assumption. It is also objected that the claims represented by Mr. Delone, by which the election was carried, were improperly solicited, as before stated. But enough to elect were in Mr. Delone's hands before the proceedings in bankruptcy were instituted. The only other thing is the charge of conspiracy between Mr. Delone and Mr. Hopkins and that the trustee is chosen to represent them. But that he will lend himself to anything which will favor one side more than another is hardly likely, particularly after this warning; and, if he should, the court is open to redress it.
The objections are therefore overruled, and the action of the referee approving the election is confirmed.
MINNEAPOLIS ST. RY. CO. V. CITY OF MINNEAPOLIS.
(Circuit Court, D. Minnesota, Fourth Division.
August 24, 1907.)
1. INJUNCTION-POWERS OF COURT-RESTRAINING PUBLICATION OF ORDINANCE.
The general rule that a court of equity will not restrain the enforce ment of an ordinance or other legislative act until it has been fully completed so far as legislative action can go does not apply to an ordinance which has been finally passed by a city council and approved by the mayor, and nothing remains to be done to render it immediately effective except its publication, which is merely a ministerial act, and in such a case upon a proper showing made the court has power to enjoin the publication.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 27, Injunction, $ 154.] 2. STREET RAILROADS-STATUTE GOVERNING INCORPORATION-MINNESOTA STAT
Gen. St. Minn. 1866, c. 34, relates to the formation of corporations. Title 1 provides generally for corporations which are or may be authorized to exercise the power of eminent domain, and specifies certain public service corporations, such as those formed for the construction of railways, canals, and works of like character. Title 2 provides for all other corporations for pecuniary profit, all those specified therein being for the conducting of purely private enterprises. Held that, while street railroad companies are not specifically mentioned under either title, the nature of their business is such as to render them quasi public corporations, which might properly be authorized to exercise the power of eminent domain and to bring them within the generic term "railways,” and that a street railroad company organized under said chapter came within the provisions of and derived its powers from title 1, having the right as therein provided to fix the term of its corporate existence at fifty years.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads,
$ 22.] 8. SAME CONTRACT WITH CITY-EFFECT OF CHANGE OF MOTIVE POWER.
A city ordinance granting a franchise to a street railroad company and accepted by the company reserved the right to the city council after five years to fix just and reasonable fares provided they should not be reduced below five cents per passenger on any continuous line. It provided for the use of animal or pneumatic power on the company's lines, but permitted it to connect with other lines using power "similar to that authorized to be used on street railways by the city council,” subject to the restriction that it should not allow locomotives or ordinary railroad cars to be run over its tracks unless with the consent of the council. Held, that the fact that after a number of years the company changed its motive
power to electricity, with the consent of the council, did not terminate the contract made by the ordinance so as to give the city the right to
reduce fares below five cents in violation of its provisions. 4. SAME-EFFECT OF SUBSEQUENT CONTRACTS.
A provision in a contract between a city and a street railroad company that the city should not reduce fares below five cents was not abrogated by a subsequent contract providing that "in the construction, mainte nance and operation" of its lines the company should be subject to all
present or future ordinances of the city. In Equity. M. D. Munn, N. M. Thygeson, and M. B. Koon, for complainant. Frank Healy and Lancaster & McGee, for defendant.
LOCHREN, District Judge (orally). This is certainly a very important case, involving, as it does, the rights of this corporation which has constructed, operated and managed all the street railways in this city for so long, and affecting also the public interests, the rights of the people who are the patrons of this road, and from necessity have to pay for the accommodations which they receive from the road.
It is claimed on the part of the complainant that it is a corporation formed under title 1 of chapter 34 of the General Statutes of the state for 1866; its articles having been executed on the 23d day of June, 1873, and fixing the date of the commencement of its existence as of July 1st of that year, and of its continuance as 50 years from that time. It claims to have been such a corporation as might have been organized, and that it was organized, under that title, and that it still continues, as that term of 50 years has not expired. It also claims that some two years later, on July 9, 1875, by an ordinance passed by the city of Minneapolis allowing this corporation to practically maintain and operate a street railway upon the streets and avenues of the city, and providing, among other things, that the street car company might charge fares to the extent of five cents for each passenger, and that the city council after five years might regulate the rates of fare, but should not reduce the fare below five cents, that the city is under a valid contract obligation not to reduce the rate of fares below five cents. It is perhaps unnecessary to discuss what the effect of that reserved power in the city council was. It is certain that it is prohibited by that contract in its power to lower fares below the sum of five cents during the life of that contract. The case is submitted on bill and answer, and, there being no contest in respect to any matters of fact, it is admitted that the complainant company went on under that ordinance and constructed a system of street railway in this city, the motive power being animal power at that time, that being one of the kinds of power that was mentioned in the ordinance to which I have referred, and that it has gone on from that time to this operating the system of railway upon the streets of the city which have been designated for that purpose from time to time by the city council, and that in 1889 and 1890, by consent of the council, and in accordance with ordinances passed by the council, and accepted by the company, it was first agreed to establish upon certain designated streets of the city cable lines to be operated under a change in the charter, respecting motive power, and that these afterwards were changed to electric lines, there being prior to that an ordinance providing for the occupation of one street for experiments as to the efficiency of electricity as a motive power; that following this ordinance, and especially the ordinance of September 19, 1890, the whole system has been changed so far as the motive power is concerned to the use of electricity as a motive power, but complainant claims that there has been no change in the provision of the ordinance I am speaking of, of 1875, the contract provision in that ordinance, with respect to fares from that time to the present, and it is complained that on the 9th of February of the present year the city council passed an ordinance reducing the amount of fare which the complainant was entitled to collect from passengers by providing that it should issue 6 tickets for 25 cents, each of those tickets representing a full fare, and that the effect of this ordinance is to impair the obligation of the contract entered into between the complainant and the defendant on the 9th of July, 1875, by the ordinance that I have referred to, and that one probable, immediate result would be the danger of annoyances to the servants of the company, the conductors and others on street cars, by reason of citizens claiming under this last ordinance the right to have these tickets, 6 for 25 cents, which, if refused by the conductors, would lead to disputes and altercations, and tend to the prejudice of the business, and at any rate to the disturbance of the company in carrying on its business, and that the company would also be liable to numerous actions which might be brought-not only such actions as might be brought by the city, but suits brought by all passengers upon the railway system who were refused this reduction of fare. Therefore a court of equity should step in and relieve the complainant froin this danger, and to that end it would be entitled to have the city, and city officials, enjoined from attempting to enforce this ordinance on the ground that it would impair the obligation of said contract.
The first objection made by the defendant is that this action is premature, and that there is no such ordinance as the alleged ordinance of February 9, 1907, in force, and therefore the complainant is in no danger from that ordinance, because it has not been published as required by the city charter to be published before it can be in force; that it is still in the same condition that it would be if it was not fully enacted by the city council—that is, that it remains an uncompleted act—and that courts will not ordinarily attempt by injunction to tie the hands of legislative bodies, or those that are invested with legislative powers while they have not completed the legislative act which is complained of. I think that that position is true as a general rule. There may be exceptions to it, but I think they are very few and not to be extended. It is fair to presume that while a matter is still in the hands of the Legislature or the city council, or anybody having the power of legislation, the presumption the courts ought to entertain is that before it leaves their hands, before it is completed, right and justice will be done, and that it would be improper to attempt to harass such body by any injunction, and such writ would not ordinarily be issued under those circumstances. Therefore the question is whether, under the facts in this case, this is a completed ordinance and one which menaces the complainant in the complainant's present situation, although it has not been published.
It seems to me to be completed. It has gone through all the steps which the council would take in the passage and enactment of an ordinance. Of course, it is not necessary that I should attempt to rehearse what those would be from the introduction of the proposed ordinance in the body by some of its members, passing through the different readings and references to committees and reports and amendments, and everything of that kind, until its final passage on a vote of
yeas and nays; but it appears to me, in fact, that this ordinance has passed through all those steps, and that it is an ordinance passel by the council, transmitted to the mayor, and which has received his signature, he having the right, and it being his duty, to sign it if he approves of it, and if he does not approve of it to return it to the council that passed it with his objections, when there would remain legislative action to be taken; that is, the vote by which it was passed would be reconsidered and the objections made by the mayor would receive consideration from the council, and they could act upon it as to them seemed right and proper, with the right, of course, to reject the ordinance at that stage, or, if they deemed it should be passed, to pass it over the veto of the mayor, if it received the requisite number of votes for that purpose. It had passed through that stage. There was nothing further in the way of performance of any legislative function, it seems to me, to be done in respect to that ordinance. It is a completed ordinance. If it is constitutional, it is then a valid ordinance, although the operation of it is suspended until the publication, which would give notice to every person of the fact that such an ordinance was passed and is in existence. It seems to me this does not differ at all from what would be the case if an ordinance was passed, as acts of the Legislature are frequently passed, to take effect at a subsequent time. They are complete as far as legislative action can go at the time of the passage. There is no legislative action to be taken between that time and the time they go into effect; and there is no legislative action in this case, it seems to me, between the time when this ordinance was signed and approved by the mayor, the last legislative action in connection with it, and the time when it shall be, if it ever happens, published. That is merely a ministerial act, the publication of it, which I think, according to the provisions of the city charter, and the general law in relation to villages and cities, would devolve upon the clerk perhaps to pass the proper copy of it to the printer, and the printer to print it. The action of the clerk would not be legislative. The action of the printer would not. It would not be legislative at all, and it is not interfering, therefore, with legislative functions to grant an injunction at the present time and to enjoin the publication of it, because that is an act which puts it in force and puts the complainant in danger of it, which would be liable to bring upon the complainant the strenuous demands of persons who would become passengers upon the street cars for conformity with the ordinance, and liable to bring about disturbance if those demands were not complied with, and liable to bring, also, some kind of suits on the part of the city for the purpose of compelling the complainant to comply with it. And therefore I hold that this suit is not prematurely brought, and that it is proper to restrain the publication of the ordinance, it having passed the legislative state. I do not know of any such case. None has been cited upon the argument, although the argument has been unusually full and able. There has no case been cited that I remember of that involved the question at all. I do not know of any case, except, perhaps, a suit that was commenced in the state of North Dakota in the federal court by the Northern Pacific Railway Company against the Board of Railway and Warehouse Commissioners, if that is the proper title to that body in that state, I am not sure, but it has the same functions as that board has in this state of fixing rates, and by the act constituting that board and empowering it to act it is required, when it fixes rates, to publish them in a certain paper, and they are to go into effect, if my recollection serves me, at a certain time after such publication has been completed. In that case the action was commenced by the Northern Pacific Railway Company against the Board of Railway and Warehouse Commissioners, if that is the proper title, and also against the publisher of the newspapers, and perhaps other state officials, to restrain them from attempting to put the order of that commission into force and from publishing the order, and a restraining order was issued in the order to show cause why a temporary injunction should not be granted. My information is that that matter was settled and did not go really any further, so there was no adjudication in the case as to whether that was proper practice or not; but it was the practice then adopted. I think there was an arrangement made by which the Railroad and Warehouse Commission made some changes in the rates so that the railroad company agreed to them and the litigation did not go on.
This brings me to consider the principal questions in the case. It is contended on the part of the complainant, as I have said, that it is a corporation of the character mentioned, and that its duration is for 50 years; that it was organized under title 1, c. 34, of the General Statutes of 1866. This question is important whether it was organized under title 1 or some other title of chapter 34 of the General Statutes, because, if it was organized under title 1, then it still continues under the organization that was formed by its articles, and still continues such corporation at this time, as title 1 allows corporations formed under that title to be formed for the period of 50 years. It requires the articles of incorporation to state the date of commencement and the time of the continuance of the corporation, and in its articles the complainant in this case did state the time of its commencement to be the 1st of July, 1873, and the date of its continuance to be 50 years. It is claimed on the part of the defendant that it was not organized under title 1, and could not be, that it was a street railway, and that there was no provision that such a corporation might be formed under that title for that purpose, the purpose of establishing and conducting and operating a street railway; but that it was a corporation which might be organized under title 2 of chapter 34, and that, in determining whether it was under one title or the other, the recitals in the articles of incorporation would not be conclusive, but that it should be determined by what was stated in the articles as to the objects of the