ment.78 And a general clause inserted after a specific precise clause of authority to use city streets, confers no additional authority.79

§ 241. Construction of Special Words and Clauses in Grants of Franchises or Privileges to Street Railway, Railroad and Electric Light, etc., Companies.-The words "other street railways" in a statute concerning franchises and the designation of routes for "any elevated, underground or other street railway on, over or under any street" extends to surface street railways.80 The word "track" does not operate to limit the right to lay one track only where the words "track or tracks" are used in other parts of the same ordinance.81 The term "plant" in a charter of an electric light, heat and power company includes poles and wires.82 "Railroad," in its ordinary acceptation and enlarged sense, includes all structures which are necessary and essential to its operation.83 "Other appliances," in an ordinance authorizing the construction of a street railroad, will cover any existing or improved devices or appliances of a like kind with those mentioned and necessary or proper for the purpose of running, moving or turning cars, but will not include a mere transfer-house erected on the street surface for shelter and to facilitate transfers.84 In the construction for land grant acts in aid to railroads, "granted lands” are those falling within the limits specially designated, the title to which attaches as of the date of the act of Congress, when the lands are located by an approved or accepted survey of the line of the road filed in the Land Department: but "indemnity lands" are lands selected in lieu of parcels lost by previous disposition or reservation for other purposes, the

78 State, City Water Co., v. Kearney, 49 Neb. 325, 68 N. W. 533, aff'g 49 Neb. 337, 70 N. W. 255.

79 Chicago, D. & V. R. Co. v. Chicago, 121 Ill. 176, 11 N. E. 907.

80 Ruckert v. Grand Ave. Ry. Co., 163 Mo. 260, 63 S. W. 814.

81 Workman v. Southern Pac. R. Co., 129 Cal. 536, 62 Pac. 185.

82 Brown v. Gerald, 100 Me. 351, 70 L. R. A. 472, 61 Atl. 785.

83 United States v. Denver & Rio Grand R. Co., 150 U. S. 1, 37 L. ed. 975, 14 Sup. Ct. 11.

84 Hamilton & L. E. T. Co. v. Hamilton, 1 Ohio N. P. 366.

title to which accrues only from the time of their selection.85 Where a statute provides that a railroad company shall "for its government be entitled to all the powers and privileges, and be subject to all the restrictions and liabilities imposed" upon another railroad company, the words "for its government" are held to imply for its regulation and control.86 If a statute authorizes the construction of a telegraph line along "any railroad" in such a manner as not to incommode the public use thereof, such railroad right of way may be acquired by the telegraph company by condemnation.87 But the right to condemn a railroad right of way is not conferred by a statute authorizing the construction and maintenance of telegraph lines "along and parallel" to railroads, and which provides for contracts for said right of way and for the mode of compensation in case of disagreement.88 "Public use," in an eminent domain statute, includes the use of land for the purpose of a telegraph line.80 Electric railways may be permitted to maintain their lines in highways under a statute authorizing a like permission to be granted by cities to "horse and steam railroads." 90 A franchise subject to the paramount control of the streets by a city, is only granted by a statute authorizing corporations to transact "any business in which electricity over or through wires may be applied to any useful purpose;' so that the municipality may refuse a permit to lay under

85 Barney v. Winona & St. Peter Rd. Co., 117 U. S. 228, 29 L. ed. 858, 6 Sup. Ct. 654, explaining Winona & St. Peter Rd. Co. v. Barney, 113 U. S. 618, 5 Sup. Ct. 606, 28 L. ed. 1109.

86 Tennessee v. Whitworth, 117 U. S. 139, 6 Sup. Ct. 649, 29 L. ed. 833.

87 St. Louis & C. R. Co. v. Postal Teleg. Co., 173 Ill. 508, 51 N. E. 382, distinguishing Postal Teleg. Cable Co. v. Norfolk & Western R. Co., 88 Va. 920, 14 S. E. 803.

88 Postal Teleg. Cable Co. v. Norfolk & Western R. Co., 88 Va. 920,

14 N. E. 803, 4 Am. Elec. Cas. 225. See s. c. 87 Va. 349.

89 New Orleans, Mobile & T. R. Co. v. Southern & Atl. Teleg. Co., 53 Atl. 211, 1 Am. Elec. Cas. 190.

As to construction of words "taking" and "taken" under act entitled: "An act to provide for the expropriation of lands for railroads and other works of public utility," see Amet v. Texas & Pacific Ry. Co., 117 La. 454, 41 So. 721.

90 Buckner v. Hart, 52 Fed. 835, aff'd 54 Fed. 925. See Blair v. City of Chicago, 201 U. S. 400, 26 Sup. Ct. 427, 50 L. ed. 801.

92

ground conduits.91 An ordinance which imposes a charge upon telephone poles as a "consideration for the privilege" of using the streets, is not a tax either on property or as a license. In the Chicago street railway cases the principle was applied that corporate privileges can only be held to be granted as against public rights, when conferred in plain and explicit terms, and an ambiguous phrase, "during the life hereof," in the statute there under consideration, was held not to operate to extend existing contracts for the term of ninety-nine years or to limit the right of the city to make future contracts with the companies covering shorter periods.93

§ 242. Construction as to Conflicting Railroad Grants Undivided Moiety. The settled rule of construction is that where by the same act, or by acts of the same date, grants of land are made to two separate companies, in so far as the limits of their grants conflict by crossing or lapping, each company takes an equal undivided moiety of the lands within the conflict, and neither acquires all by priority or location or construction.94

§ 243. Matters Incorporated by Reference.-Requirements contained in another statute or document may be incorporated in a charter by generic or specific reference and, if clearly identified, the charter has the same effect as if it itself contained the restrictive words, and the question of the constitutionality of the statute referred to is immaterial.95 A code provision which is not a part of the public law of the State at the time a charter or franchise is granted does not enter into and constitute a part of the contract of the State with such corporation.96 94 Southern Pac. R. Co. v. United States, 183 U. S. 519, 46 L. ed. 307, 22 Sup. Ct. 154.

Edison Elect. Illum. Co. of B. v. Hooper, 85 Md. 110, 36 Atl. 113, 6 Am. Elec. Cas. 8.

"New Orleans v. Great Southern Teleph. & Teleg. Co., 40 La. Ann. 41, 3 So. 533, 8 Am. St. Rep. 502, 2 Am. Elec. Cas. 122.

"Blair v. Chicago (1905), 201 U. S. 400, 50 L. ed. 801, 26 Sup. Ct. 427.

95 Interstate Consolidated Street Ry. Co. v. Commonwealth of Massachusetts, 207 U. S. 79, aff'g 187 Mass. 436.

"Central Rd. & Banking Co. v. State of Georgia, 54 Ga. 401.

But a city ordinance becomes a part of a charter of a corporation where it is subject to such ordinance under the statute of incorporation.97 And a reference to a plat will operate to embody it in a grant of a right to a railroad to construct its line in a certain street according to such plat.98 So an ordinance will be construed in accordance with a plat filed, where such plat is referred to as the basis of construction of a switch from a street railway track to a warehouse under a grant of a franchise thereof.99 If the time for the construction of a certain railroad is extended, a reference in the statute to its act of incorporation as of a certain date or year, though stated incorrectly, will refer to its original charter where there is but one act in that year which relates to such corporation.1

§ 244. Title of Statute. The title is no part of a statute,2 and it cannot be used to control, extend or restrain the positive provisions or plain and express words in the body of the act or the obvious meaning of the statute itself, for where the intent is plain nothing is left to construction. In cases, however, of doubt and ambiguity resort may be had to the title as an aid to construction.3

" Philadelphia v. Ridge Ave. Pass. R. Co., 143 Pa. 444, 48 Phila. Leg. Int. 414, 28 W. N. C. 388, 22 Atl. 695.

98 Murray Hill Land Co. v. Milwaukee Light, Heat & Traction Co., 110 Wis. 555, 86 N. W. 199.

99 Dulaney v. United Rys. & Electric Co., 104 Md. 423, 65 Atl. 45.

1 Lowell v. Washington County Rd. Co., 90 Me. 80, 37 Atl. 869, 9 Am. & Eng. R. Cas. (N. S.) 115.

2 Patterson v. Bark Eudora, 190 U. S. 169, 47 L. ed. 1002, 23 Sup. Ct. 821.

3 United States: Cornell v. Coyne, 192 U. S. 418, 24 Sup.. Ct. 383, 48 L. ed. 504; Patterson v. Bark Eudora, 190 U. S. 169, 47 L. ed. 1002, 23 Sup. Ct. 821; Hadden v. Collector,

5 Wall. (72 U. S.) 107, 18 L. ed. 518; Postmaster General v. Early, 12 Wheat. (25 U. S.) 136, 6 L. ed. 577; United States v. Union Pacific R. Co., 37 Fed. 551, 2 Denver Leg. N. 83.

Illinois: South Park Commissioners v. First Nat. Bank, 177 Ill. 234, 52 N. E. 365, 31 Chic. Leg. N. 166.

Indiana: Rushville v. Rushville National Gas Co., 132 Ind. 575, 15 L. R. A. 321, 28 N. E. 853.

Michigan: Stevens v. Lake George & M. R. Co., 82 Mich. 426, 46 N. W. 730.

Missouri: State, Judah, v. Fost (Mo., 1908), 109 S. W. 737 (title is valuable aid in determining scope, etc., of statute).

§ 245. Same Subject Continued-Constitutional Requirements. The object of a constitutional provision that no law shall embrace more than one subject, which shall be ex

New Jersey: See O'Hara v. National Biscuit Co., 69 N. J. L. 198, 54 Atl. 241.

New York: Rosin v. Lidgerwood Mfg. Co., 86 N. Y. Supp. 49, 89 App. Div. 245.

Oklahoma: Choctaw, O. & G. R. Co. v. Alexander, 7 Okla. 579, 52 Pac. 944, aff'd 7 Okla. 591, 54 Pac. 421.

Pennsylvania: Commonwealth, Cambria County, v. Lloyd, 178 Pa. 308, 35 Atl. 816.

provide that 'every act or resolution, having the force of law, shall relate to but one subject, and that shall be expressed in the title.' Meyer v. Car Co., 102 U. S. 1, 11, 12, 26 L. ed. 59. So, in Beard v. Rowan, 9 Pet. (34 U. S.) 301, 317, 9 L. ed. 135. 'The preamble in the act may be resorted to, to aid in the construction of the enacting clause, when any ambiguity exists.' The ambiguity here referred to is not simply that arising from the meaning of particular words, but such as may arise, in respect to the general scope and meaning of a statute, when all its provisions are examined." Coosaw Mining Co. v. South Carolina, 144 U. S. 550, 563, 36 L. ed. 537, 12 Sup. Ct. 689, per Harlan, J. (a case of construction of a grant conferring an exclusive mining right, franchise or privilege for a period of years).

"While express provisions in the body of an act cannot be controlled or restrained by the title or preamble, the latter may be referred to when ascertaining the meaning of a statute which is susceptible of different constructions. In United States v. Fisher, 2 Cranch (6 U. S.), 358, 386, 2 L. ed. 304, Chief Justice Marshall said: 'neither party contends that the title of an act can control plain words in the body of the statute; and neither denies that, taken with other parts, it may assist in removing ambiguities. Where the intent is plain, nothing is left to construction. When the mind labors to discover the design of the legislature it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration.' "Act to incorporate"-Status of United States v. Palmer, 3 Wheat. foreign railroad corporation. It is (16 U. S.) 610, 631, 4 L. ed. 471. held that the Louisville and NashThis rule is especially applicable in ville Railroad Company is a corpoStates whose constitutions, * * *ration of Kentucky, and not of

"Title of an act, especially in congressional legislation, furnishes little aid in the construction of it, because the body of the act in so many cases, has no reference to the matter specified in the title." United States v. Union Pacific Rd. Co., 91 U. S. 72, 82, 23 L. ed. 224, per Davis, J. (in considering the "act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the government the use of the same for postal, military and other purposes").