ELECTRIC STREET RAILWAY. 607 whenever the public welfare may require. Neither the priority of one charter over the other, nor the prior location or construction of a railroad thereunder, affects this right. Under the constitution and laws of this state, the right of one railroad corporation to cross the track of another, in constructing and operating its road, is derived by grant of the franchise so to do from the state, and not by purchase or appropriation from the road first located and constructed. The latter has no vested exclusive right to such crossing for its use against the right of the public to a crossing. The court further held that the railroad company across whose track a right of way was condemned could not recover for an injury to its franchise as a railroad; and that detention of trains, loss of future business, or additional expenses incident to the future exercise of its corporate powers, could not be taken into the account in estimating consequential damages. Maxim sic utere tuo. In the It is contended, however, in behalf of the defendant in error, that, conceding their railway company and the telegraph association to be upon an equal footing on the streets and highways in the enjoyment of their respective franchises, the company is bound to conform to the rule, sic utere tuo ut alienum non lædas. view which we take of the relation to each other of the parties to the action, we deem it unnecessary to inquire whether there has been a want of conformity, and to what extent, if any, on the part of the railway company, to the requirements of the legal maxim. Nor do we think it necessary to determine how far an incorporated company making a lawful and careful use of its own property, or of a franchise granted to it by the proper municipal authorities, may be held liable for damages incidentally caused to another. From the undisputed facts in the case, as disclosed in the record and printed arguments of counsel, it is evident, as we have already seen, that the railway company acquired from the state, and from the city of Cincinnati, authority to erect and maintain poles and wires in the streets or highways, and to use electricity as a motive power for its cars. Clothed with such authority, we have, upon weighing the allegations in the original petition, and applying to them the well-settled principles govern ing the legal rights of the public in the highways, reached the conclusion that the facts set forth in the petition are not sufficient to constitute a cause of action. ion that there has been no invasion of the rights of the teleWe are of the opingraph association by the plaintiff in error, and that the telegraph association is not entitled to the relief prayed for in its petition. The judgment, therefore, of the superior court at general and special term must be reversed, and the original petition dismissed. Judgment accordingly. Electric Street Railways-Interference With Telephone System.-See Cumberland Tel. & Tel. Co. v. United Electric R. Co. (C. C.), 43 Am. & Eng. R. Cas. 194. As to interference by electric light wires with wires of telephone company see Nebraska Tel. Co. v. York Gas & Electric Light Co. (Neb.), 30 Am. & Eng. Corp. Cas. 547, note 561. DETROIT CITY R. Co. v. MILLS et al. (Michigan Supreme Court, May 8, 1891.) Electric Street Railway-Ultra Vires Corporate Act-Right of Individual to Bring Suit. Although a city may have no authority to permit a street railway company to operate its cars by electricity, the question cannot be raised collaterally in a controversy between an abutting lot owner and the street railway company as to its right to erect poles in the street. The want of such power is a question between the company and the state. Until the right has been determined by a direct proceeding brought by the state or the city the company may continue the use of electricity as a motive power. Power of City to Authorize Use of Electricity for Street Railways.—Where the legislature expressly confers upon cities the right to authorize the use of any motive power whatever upon their street railways, a city has the power to authorize a street railway company to use electricity as a motive power, although at the time of the legislative authorization the use of electricity for such a purpose had not been discovered. Danger in Use of Electricity-Injunction. The use of electricity as a motive power for propelling street railway cars has not been shown to be so dangerous as to justify the court in enjoining it. Use of Street for Street Railways-Additional Servitude. The use of city streets for street railways does not impose such new burden and servitude additional to what was implied by the dedication, as to place it beyond the power of the city authorities to authorize their construction without additional compensation to abutting lot owners; and it is immaterial whether such abutting owners or the city owned the fee in the streets. Poles in Street-Interference with Access.-The poles to support the wires necessary to the operation of a street railway by electricity are not such an interference with the access to the abutting property as constitutes an invasion of private rights; and it cannot be insisted that they are a detriment because in platting lots and selling them it may be necessary to take them into consideration. Exclusion of Other Vehicles from Street Occupied by Railway.-It seems that a street railway company cannot lawfully construct and operate its road in a street too narrow to admit the passage of its cars and other vehicles at the same time, nor in a street, although of sufficient width, if its condition be such that the operation of the railway will result in the practical exclusion of others from the street, nor unless its roadbed and track are built substantially with the level of the street so as to permit vehicles to pass without difficulty, nor, if an electric railway, unless the poles are so placed as not to interfere with the right of ingress and egress to abutting property. Title of Statute Embracing More than One Subject.-The Michigan Act of 1855 relating to "Train Railway Companies" was amended in 1861, 1867, and 1871, by acts authorizing and regulating the operation of such railroads for the carriage of passengers through the streets of cities under municipal regulation. The amendment of 1867 authorized the use of steam or any other power than animal power under the authority of the municipality. Held, that it cannot be said that the act is unconstitutional as embracing more than one subject which is not expressed in its title. Limiting Number of Witnesses-Discretion of Court. It is within the discretion of the court to limit the number of witnesses who may be called to testify to any particular fact. MCGRATH and MORSE, JJ., dissenting. APPEAL from Wayne County Circuit Court. William Look and F. H. Chipman, (Don M. Dickinson, of counsel,) for appellants. Brennan & Donnelly and Hoyt Post, for appellee. Case stated. GRANT, J.-The complainant was organized in May, 1863, under chapter 94, How. St. It has from time to time extended its tracks, under the direction of the common council upon the streets of the city, until it now has many miles of road and large amounts of money invested. It has, during the 27 years of its existence been engaged in the business of carrying passengers to and from different parts of the city. January 23, 1889, the common council authorized the complainant to lay, construct, use, and operate a single street-railway track in, along, and through Mack street, from its conjunction with Gratiot avenue to the city limits. It fixed the rate of speed at not less than six nor more than ten miles per hour. It also provided that, whenever the complainant should deem it advisable, it might substitute in lieu of animal power such system of electric or other motive power, except steam, as should seem best in its judgment, for the purpose of properly and safely conducting its said business in said city of Detroit upon any or all of its said lines now in use and operated, or hereafter to be used and operated, by said company, and that such change'should be made under the supervision of the board of public works. This ordinance was duly accepted by the complainant. Complainant proceeded to construct its track upon Mack street, and concluded to use the system of electric motive power instead of horse power. This system is the same as the one involved in the case of Potter v. Saginaw Union St. R. Co., 83 Mich. 285, (decided at the present term.) The system and the construction of the road are there sufficiently described. Complainant was proceeding to erect its poles upon the side of the street fronting the premises of the defendants, the poles being placed 125 feet apart. The defendants interfered with the construction by cutting down the poles and threat46 A. & E. R. Cas.-39 ened to continue to do so. The complainant thereupon filed its bill of complaint to restrain this interference on the part of the defendants. The defendants answered, admitting their action, and claiming their legal right to thus prevent the construction of an electric street railway on the street. They allege that street railway cars, propelled by electricity, cannot lawfully be used on the street in the manner intended by complainant. They deny the power of the common council to permit the erection and maintenance of this electrical apparatus without the consent of abutting property owners, or without condemnation proceedings, and claim that the construction and use of this railway limits, impairs, and impedes the use and enjoyment of their property, and imposes an additional servitude upon the street. They also filed a crossbill praying for a perpetual injunction against the use of such railway. The case was heard upon pleadings and proofs, and decree entered in favor of the complainant, the railway com pany. ute-Title One subject. 1. The act under which complainant is organized is attacked as unconstitutional and void in that it embraces more than one object which is not expressed in its title. The Constitution original act was passed in 1855 under the title of ality of stat-Train Railway Companies." Its purpose is stated in section 1 as follows: "Any number of persons, not less than three, may be formed into a corporation for the purpose of constructing, owning, and operating a train railway or road, to be operated by horse or other animal power, by complying with the following requirements." The first twelve sections provided for the details of the organization, and for the obtaining of lands, by purchase or condemnation, for its roadway, gates, tollhouses, etc. The next two sections provided for the use of the road by any person, by paying certain tolls for every coal car, ore car, or other vehicle drawn over it. It is unnecessary to mention the provisions of the other sections of the original act. Nothing is said in the act about the carriage of passengers. This act was amended in 1861 by adding two sections providing for the organization of companies under the act to construct and operate railways in and through the streets of any town or city, upon obtaining consent of the municipal authorities, and under such regulations as they might from time to time prescribe. In 1867 three additional sections were added, and in 1871 two, providing additional regulations for the construction and operating of street railways in cities and along the public highways. The amendment of 1867 also provided for the operation of the cars by steam, or any power other than animal power, under the authority of the municipality. The 611 alleged dual object consists in this, viz., that the original act provided for tollroads for the carriage of freight, while the amendment provided for railways for the transportation of passengers. Street railways have existed under this act for nearly 30 years. Millions of money have been invested in them. They have been extensively used by the people. This complainant has, during its existence, been engaged exclusively in the carriage of passengers. It has become not only a convenience, but a necessity, to the people. In the many cases brought to this court involving the various provisions of the act, its constitutionality was never raised, and is now for the first time doubted. If its constitutionality were doubtful, courts might well be justified in upholding the practical construction which has thus been adopted by the people. The people have acted and invested upon the faith of its validity for the last 27 years, not only in the city of Detroit, but in many other cities of the state, and the state authorities have never questioned it. In construing the constitutionality of a statute, as well as in interpreting a provision of the constitution itself, the practical construction which the people have placed upon it during a series of years will be adopted by the courts, unless there is a clear infraction of some constitutional provision. In such cases the argument ab inconvenienti will be allowed to have great weight, Cooley, Const. Lim. 81; Stuart 2. Laird, 1 Cranch, (U. S.) 299; Martin v. Hunter's Lessee, 1 Wheat. (U. S.), 304. 351; Cohens v. Virginia, 6 Wheat.' (U.S.), 264: Bank 7. Halstead, 10 Wheat. 51; Westinghausen v. People, 44 Mich. 265; People v. Hammond, 13 Mich. 256; Frey 7. Michie, 68 Mich. 323, 20 Am. & Eng. Corp. Cas. 129; People v. Goodwin, 22 Mich. 500. But upon its merits we see no force in the position. The general purpose of the act is to provide for local railway transportation. Its title is "An act to provide for the construction of train railways." Whatever may be included under the title of an act when passed may also be included by subsequent amendment. The general railroad law is silent in its title as to what may be transported under it, yet no one ever thought to question its validity upon the ground that it provided for the carrying of both freight and passengers. If the provisions of the amendment are germane to the object expressed in the title, this is all that the constitution requires. In determining this question the law must be considered as a whole, as amended. The amendment is incorporated into the original act, and bepart of it. The same rule of construction will be plied to the amended act as to the original act. The word "train" as used in this law, is defined to be a "continuous or connected line of cars or carriages on a railroad. " Certainly comes ap |