§ 168. Construction of special words and clauses-Electric railways. The terms of a charter of a street railway company, limiting its use of electricity to a mode excluding overhead wires, control a general statute authorizing cities to permit the use of "any improved motive power, except steam," so that permission of the municipal authorities to use overhead wires cannot be granted.62 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." 63 The words "it may be lawful” and "it shall be lawful," in an ordinance relating to laying street railway tracks, are to be construed as permissive words, and it lies upon those who contend that they are otherwise to show in the circumstances something creating the obligatory construction claimed.64 The right to use an overhead trolley system is conferred by a statute authorizing the use of any power other than by locomotive.65 By "a continuous route," in an electric street railway charter, is not meant a circuitous

tions on said line, destined for stations on any lateral or other telegraph line connecting with the said Marietta and Cincinnati line at points where the said party of the second part may have stations; or such messages as may be received from any lateral or telegraph line connecting with said Marietta and Cincinnati line at points where the said party of the second part may have stations, destined for any of the stations of said party of the second part on their said line, or any lateral or other line connecting with said Marietta and Cincinnati line, at points where said party of the second part may have stations. For all messages that may be received by the party of the first part at their stations to be retelegraphed at stations of the party of the second part to stations on any lateral or other line connecting as aforesaid, and for all messages

that may be received at any of their stations by said party of the second part from stations on lateral or other lines connecting as aforesaid, destined for, and that may be re-telegraphed by the party of the second part to points on said line where the party of the second part have no stations, the party of the second part shall be entitled to their proportion of the charge for such messages corresponding to the distance such messages may pass upon their line.”

62 Farrell v. Winchester Ave. Ry. Co., 61 Conn. 127, 3 Am. Elec. Cas. 85, 23 Atl. 757; Conn. Gen. Stat., § 3595.

63 Buckner v. Hart, 52 Fed 835, affd. 54 Fed. 925; Acts La., 1882, No. 20, P. 14.

64 Koch v. North Avenue Ry. Co., 75 Md. 222, 23 Atl. 463, 4 Am. Elec. Cas. 155.

65 Gillett v. Chester & Media Ry.

route.66

The word "may," in a statute authorizing municipal consent for use of streets for an electric railway, imposes a duty, said statute being intended as a delegation of power, important to be exercised for the public welfare.67 A statute providing that telegraph companies may place their lines in "public roads, streets and highways" does not include railroads,68 The term "railroad corporation" in a statute, requiring the erection and maintenance of fences alongside the tracks, includes an interurban electric street railway.69 An eminent domain statute may include electric street railroads within the words "steam and horse railroads," even though electricity was unknown when the statute was passed.70 And an electric railway, incorporated under the general incorporation acts to build horse and dummy railways may organize a street railway company to be operated by electricity or by any motive power other than steam, and may appropriate private property to that purpose, as a distinction is recognized in legislation between railways intended to be operated upon city streets for local accommodation and steam railways as generally understood. Existing as well as future conditions are comprehended in an ordinance requiring maintenance of guard wires by an electric company "whenever it shall become necessary to cross telephone lines." 72

§ 169. Construction of special words and clauses Electric light, etc., companies.- Electric light is included within the

Co., 2 Penn. Dist. Rep. 450, 4 Am. Elec. Cas. 160; Act Penn., May 14, 1889.

66 Central Penn. Teleph. & S. Co. v. Wilkesbarre & W. S. Ry. Co., 11 Penn. Co. Ct. Rep. 417, 4 Am. Elec. Cas. 264.

67 State, Kennelly v. Jersey City (N. J. Sup. Ct., 1894), 5 Am. Elec. Cas. 146; N. J. Act, March 11, 1893 (Pub. L. N. J., 1893, p. 241).

68 New York City & N. R. Co. v. Central Un. Teleg. Co., 21 Hun (N. Y.), 261, 1 Am. Elec. Cas. 315.

69 Riggs v. St. Francois County Ry. Co. (Mo. App. 1906), 96 S. W.

707. See Evans v. Utica & M. Valley R. Co., 89 N. Y. Supp. 1089, 44 Misc. 345.

70 Ogden City Ry. Co. v. Ogden City, 7 Utah, 207, 26 Pac. 288, 3 Am. Elec. Cas. 321; Utah Comp. Laws, § 3841.

71 Blair v. City of Chicago, 201 U. S. 400, 483, 473, 26 Sup. Ct. 427, 50 L. Ed. 801, rev'g 132 Fed. 848, and citing Harvey v. Aurora & Geneva Ry. Co., 174 Ill. 295, 299; North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207.

72 State, Wisconsin Teleph. Co. v. Janesville St. Ry. Co., 87 Wis. 72,

words "gas or other light," in a statutory charter, so that a city with requisite power may contract with such a chartered company to furnish electric lights.73 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 underground conduits.74 An electric light company is not within the provisions of an ordinance exempting from taxation the "machinery and apparatus of all manufacturing industries" for five years.75 The word "shall," in a statute providing that the local authorities "shall make a written designation of locations and kinds of poles and wires," is not mandatory as to electric light companies, and such designation may be refused where a later statute extends the former statutory provisions to electric light companies, "so far as applicable.” 76 Where an electric corporation derives its permission to use the streets from the decrees of a Probate Court and not by ordinance supplemented by a popular vote, as provided by statute, such corporation cannot be said to have "gone into operation." Nor is the right granted to carry on the business of electric illumination under char ters, one of which provides: "For the purpose of manufac turing, buying and selling and dealing in telegraph and electrical supplies, appliances and apparatus, and all things incident thereto; also the making of models and experimental work, and general light manufacturing and all things incident thereto," and the other, "for the purpose of manufacturing, operating, selling or renting dynamos, motors and other elec trical appliances for furnishing lights and power and for other

41 Am. St. Rep. 23, 4 Am. Elec. Cas. 289, 57 N. W. 970.

73 Newport v. Newport Light Co., 89 Ky. 254; appealed, 151 U. S. 527, 14 Sup. Ct. 429, 38 L. Ed. 259, but no jurisdictional question was involved.

74. Edison Elec. Illum. Co. of B. v. Hooper, 85 Md. 110, 36 Atl. 113, 6 Am. Elec. Cas. 8, Md. Acts, 1890, chap. 233.

75 Frederick Electric L. & P. Co. v. Mayor, etc., Frederick City, 84 Md. 599, 6 Am. Elec. Cas. 644; Md. Act 1882, art. 11, § 266, Pub. Loc. Laws.

76 Suburban Light & Power Co. v. Board of Aldermen of Boston, 153 Mass. 200, 3 Am. Elec. Cas. 80, 26 N. E. 447, § 3; Pub. Stat. Mass., chap. 109; chap. 221, Mass. Acts 1883; chap. 398, Mass. Acts 1889.

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purposes. Electric lighting is not embraced within the Pennsylvania statute of 1874 providing for "companies for the manufacture of gas or the supply of light or heat to the public by any other means," so as to grant an exclusive privilege.78

§ 170. Construction" Property "-Taxation.- The constitutional requirement that taxation upon property shall be in proportion to its value does not include every species of taxation. The word " property is sometimes employed in the Revenue Law in its comprehensive sense, and as synonymous with subjects, and will be so construed when required by the context or when the manifest purpose of the law will be otherwise defeated.79

§ 170a.

Construction Taxation "Franchise.' Where a law makes provision for a constitutional method of taxation the legislative intention should be given effect by a fair and reasonable construction, so that property protected by the State shall be compelled to contribute ratably its share of public revenue, and so avoid discrimination in taxation between property owners.80 In Nebraska the word "franchise" is a general term, as used in the new revenue law, and includes all privileges and rights granted to or exercised by a person, joint-stock company, association, co-partnership, or corporation engaged in the express, telegraph or telephone business in that State.81

77 Brush Elec. Light Co. v. Jones Bros. Elec. Co., and Brush Elec. L. Co. v. Queen City Elec. L. Co. (C. P., Ohio 1890), 23 Week. L. Bull, 329, 3 Am. Elec. Cas. 516. Other cases, however, hold that such companies are manufacturing companies. See chap. on Taxation, and index to this volume.

78 Scranton Elec. L. & H. Co. v. Scranton Illum. H. & P. Co., 122 Penn. St. 154, 9 Am. St. Rep. 79, 3 Am. Elec. Cas. 499, 15 Atl. 446, Penn. Act 1874, § 34.

79 Western Un. Teleg. Co. v. State Board of Assessment, 80 Ala. 273, 1 Am. Elec. Cas. 844, per Clopton, J., partly revd., 132 U. S. 472, 33 L. Ed. 409, 10 Sup. Ct. 161, 3 Am. Elec. Cas. 1, Ala. Acts 1884-5, p. 10; Const. Ala. 1865 and 1868.

80 State v. Western Union Teleg. Co., 96 Minn. 13, 104 N. W. 568.

81 Western Union Teleg. Co. v. City of Omaha (Neb. 1905), 103 N. W. 84; Cobbey's 'Ann. Stat. 1903, § 10, 477; § 78 of new Revenue Law.

§ 171. Construction of special words and clauses - Penalty statutes. The words "party aggrieved," in a party aggrieved," in a penalty statute, relative to sending telegraphic despatches, extends only to the sender of the message.82 The words "discrimination" and "partiality" in a penalty statute covering the transmission of messages are not to be construed as intending to imply willfulness and wrongdoing on the part of the company as grounds for the penalty, because the failure to deliver a despatch in the order of time in which it is received may occur from carelessness or willfulness and the consequences to the sender are exactly the same, and this is true where with respect to the penalty it is apparent that the legislature did not intend to make a distinction between intentional and negligent defaults.83 The word "transmit" includes delivery under a penalty statute, as to receiving and transmitting, etc., telegrams.84 Where a statute prohibits the disclosure of the contents of any message, and enacts that "all despatches which may be filed at any office in this State for transmission to any point, shall be so transmitted without being made public," the word "filed" might be "construed to mean only such messages as the company chose to accept and file for transmission. In its strict sense it would not include even messages received and sent at once before filing. * * * It is more reasonable to hold that it signifies all messages which may be left for transmission, imposing a duty commensurate with the privileges granted.85

82 Western Un. Teleg. Co. V. Brown, 108 Ind. 538, 2 Am. Elec. Cas. 508, 8 N. E. 171, Acts Ind., 1885, p. 151; Hadley v. Western Un. Teleg. Co., 115 Ind. 191, 15 N. E. 845, 21 Am. & Eng. Corp. Cas. 72, 2 Am. Elec. Cas. 542. Contra, Wadsworth v. Western Un. Teleg. Co., 86 Tenn. 695, 2 Am. Elec. Cas. 736; Tenn. Code, M. & V., § 1541, "party aggrieved; " Code T. & S., §§ 1321-1323; disapproved, 44 Fed. 555. See Western Un. Teleg. Co. v. Allen, 66 Miss. 549, 2 Am. Elec. Cas. 625, 6 So. 461. This case is contra, but the statute uses

the words "The person injured," Act Miss., March 18, 1886 (Acts Miss., 1886, p. 91).

83 Western Union Teleg. Co. v. Braxtan, 165 Ind. 165, 74 N. E. 985, Laws 1885, p. 151, c. 48; Act April 8, 1885.

84 Brashears V. Western Un. Teleg. Co., 45 Mo. App. 433, 3 Am. Elec. Cas. 701, 706; Western Union Teleg. Co. v. Braxtan, 165 Ind. 165, 74 N. E. 985; Laws 1885, p. 151, c. 48; Act April 8, 1885. See chapters IX and XXXII herein on Penalty Statute.

85 State, Trenton & N. B. Turnp.