Detroit City Railway v. Mills

Grant, J.

The complainant was organized in May, 1863, under chapter 94, How. Stat. 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 3, 1889, the common council authorized the complainant to lay, construct, use, and operate a single street-railway track in, along, and through Mack street, *644 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 Street Railway, 83 Mich. 285. 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 interferred with the construction by cutting down the poles, and threatened 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 thus to 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 proceed *645 ings, 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 cross-bill 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 company.

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 original act was passed in 1855, under the title of “An act to provide for the construction of train railways.” 1 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 and owning 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 road-way, gates, toll-houses, 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 new 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 *646 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 alleged dual object consists in this, viz., that the original act provided for toll-roads 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 rib inconvenimti will be allowed to have great weight. Cooley, Const. Lim. (6th ed.) 81; Stuart v. Laird, 1 Cranch, 299; *647 Martin v. Hunter’s Lessee, 1 Wheat. 304, 351; Cohens v. Virginia, 6 Id. 264; Bank v. Halstead, 10 Id. 51; Westinghausen v. People, 44 Mich. 265; People v. Hammond, 13 Id. 256; Frey v. Michie, 68 Id. 323; People v. Goodwin, 22 Id. 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 becomes a part of it. The same-rule of construction will be applied 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 the carriage-of passengers is as germane to the object expressed in the-title- as is the carriage of freight. Either could be incorporated into the law by amendment without violating the constitutional provision. Counsel for the defendants are in error in interpreting the original act to be limited to the carrying of “ore, mineral, copper, and iron.” The corporations therein provided for had the right to, carry any and all binds of freight.

2. It is next insisted that the municipality of the city of Detroit does not possess the power to permit the complainant to operate its cars by electricity, and that, there *648 fore, the complainant is acting without authority of law. The precise claim is that chapter 94, How. Stat., does not authorize the use of this motive power by the companies to be organized under it, but limits them to the use of such powers as were known at the time of the passage of the act and the amendments thereto. Granting this position to be correct, it follows that the action of the complainant is ultra vires of the corporation. The obvious and conclusive answer to this claim is that it is a matter between the complainant and the State. The defendants are not in position to raise the question. The mere usurpation of corporate authority does not confer upon the individual the right to bring suit to restrain the unlawful exercise of authority, nor to raise it collaterally. If the State chooses to waive it, or by its silence permit the action, no others can complain, so long as the personal or property rights of the individual are not invaded or affected. It therefore follows that, unless these defendants are injured, they are not concerned in this question. Swartwout v. Railroad Co., 24 Mich. 393; Jones v. Habersham, 107 U. S. 174 (2 Sup. Ct. Rep. 336); Newell v. Railway Co., 35 Minn. 112 (27 N. W. Rep. 839); Railway Co. v. Orton, 32 Fed. Rep. 471; Bridge Co. v. Prange, 35 Mich. 400. Until the right has been determined in a direct proceeding brought by the State ■or the city, the complainant may continue the use of such power.

3. It is unnecessary to discuss the proposition that the right of the complainant to use electricity is not conferred by the original act of 1855. By the act of 1867 the right to use any other than animal power was expressly conferred, to be exercised under the authority and direction of the municipal authorities. By the act of 1871, section 1 was amended so as to provide for constructing, owning, and operating a train railway or road for the conveyance *649 of persons or property, to be operated by horse or other animal power, or by steam, or by pneumatic or any other motive power, or by any combination of them. How. Stat. §§ 3495, 3533. Upon the authority thus conferred the common council of the city of Detroit passed the ordinance above mentioned. In accepting the ordinance, the complainant accepted the provisions of the law as an amendment to its corporate powers. This would be true if its articles of association described its purpose to be the construction of a horse railroad, as it is stated to be in defendants’ brief. The language, however, of the articles is broader than this, for its purpose is declared to be the construction of a horse or city railroad, under the act of the Legislature above mentioned.

The general railroad law enacted in 1855 provides for the use of the force and power of steam, of animals, or any mechanical power, or any combination of them. If some new motor (such as a storage battery, which counsel for the defendants in their brief say will no doubt be discovered in the immediate future) should be found to take the place of steam, and thereby dispense with the noise incident thereto, and the discomforts of dirt and smoke, would it be contended that railroad companies could not use it, under the provisions of this law, because it was not known at the time.the law was passed? These laws were enacted in times of rapid advancement in the mechanical arts. This advancement is nowhere more forcible shown than in the discovery and use of devices and motors to facilitate travel and transportation. It cannot, in my judgment, be held that the Legislature intended to limit these corporations to the use of things that were then known. This rule would be too rigid and technical to merit approval. The common law is more elastic and progressive. It adapts itself to meet the *650 needs of tHe people, and the advance of science and civilization.

As well might it be contended that when land is dedicated to or condemned for the public use for highways its use must be limited to the then known methods of travel and transportation. Engines now travel over nearly every public highway in the agricultural portion of the country, propelled by steam, drawing large machines, and stopping at nearly every farm to facilitate the work of the farmers; yet upon this innovation of the use of the highway this same principle was invoked as is now invoked to prevent it. Macomber v. Nichols, 34 Mich. 212. In this case the defendant was held liable in the circuit court for running such an engine along the highway. In his opinion, Chief Justice Cooley says:

“ Persons making use of horses, as the means of travel or traffic by the highways, have no rights therein superior to those who make use of the ways in other modes. It is true that locomotion upon the public roads has hitherto been chiefly by means of horses and similar animals, but persons using them have no prescriptive rights, and are entitled only to the same reasonable use of the ways which they must accord to all others. Improved methods of locomotion are perfectly admissible, if any shall be discovered, and they cannot be excluded from the existing public roads, provided their use is consistent with the present methods.”

Steam has been used as a motor in the public streets, and its use sustained. Moses v. Railroad Co., 21 Ill. 516. The court in that case say:

“ A street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation shall be used. * * * To say that a new mode of passage shall be banished from the streets, no matter how much the general good may require it, simply because the streets were not so used in the days of Blackstone would hardly comport with the advancement and *651 enlightenment of the present age.” See, also, Fulton v. Railway Co., 85 Ky. 640 (4 S. W. Rep. 332); Stanley v. City of Davenport, 54 Iowa, 463 (2 N. W. Rep. 1064).

The use of electricity causes no greater obstruction or hindrance, and imposes no greater burden, upon the streets than does the ordinary horse railway, except it be by placing posts along the streets, — a matter to be hereafter discussed. The electric car does not occupy as much space upon the street as does the car with the horses attached. It is not more noisy, is cleaner, is started and stopped quicker, moves faster, is more readily controlled^ and, by its more rapid carriage of passengers, relieves the street, to some extent, at least, of travel. These are matters of common observation. Its advantages over horsepower are apparent. But it is most severely attacked because it is dangerous, and evidence of accidents, caused by it in this and other states, was introduced by the defendants. Some of this evidence, it appears, was used in the courts of other states, w-here the use of this power was sustained. It has not, however, been shown in this suit to be so dangerous as to justify the court in enjoining its use. The electric railway is now in use in nearly all the large cities and many of the smaller ones of the country. I am not aware that any court has yet enjoined its use on the ground of danger. Steam annually causes the loss of many lives and great destruction of property; yet no one has ever sought for that reason to enjoin its use as a motive power in - transportation. This matter may be safely left where the Legislature has left it, to the municipal authorities, who presumably will not permit the use of those things which, cause unnecessary danger. The Legislature has expressly conferred upon the cities of this State the right to authorize the use of any motive power whatever upon their street railways. Under this power exists the right to authorize the use of *652 electricity. Williams v. Railway Co., 41 Fed. Rep. 556.

Defendants’ counsel cite as an authority Omaha Horse Ry. Co. v. Cable Tramway Co., 30 Fed. Rep. 324. The language then used by Judge Brewer must be considered in connection with the facts. The question there involved was not whether a horse-railway company might use any other motive power, but whether, being by its charter limited to the use of horse-power, it might restrain another company from using any other power. The com. plainant in that case was given the exclusive right to build, erect, and operate horse-railways within the city of Omaha, and five miles adjacent thereto. This was under a special charter from the legislature of the territory of Nebraska. The defendant was proceeding to construct a cable road, and the complainant sought to enjoin its construction and use on the ground that the defendant’s road was included in the term “horse railways.” In the opinion is this language:

“ Is it probable that it [the legislature] intended to foreclose the public in advance from all the benefits of possible inventions and discoveries in the matter of street-railway travel, and give them to this grantee? or did it not rather intend that its grantee should take that complete and single thing known as a * horse railway,’ with all of which it was familiar, and retain for the public all of the unknown possibilities of invention and discovery in reference to modes of street-railiuay travel9”

In the present case, under the authority of the Legislature, the people are reaping the benefit of just such inventions, the use of which is authorized by the broad and comprehensive language of the act, as was evidently intended.

4. This brings us to the important question, viz., does the use of the street for street railways impose such new burden and servitude, additional to what was implied by the dedication, that it is beyond the power of the city to *653 authorize their construction without additional compensation to abutting lot-owners? As already shown, no restrictions are placed upon the city in granting these franchises. The lot-owner sustains a threefold relation to the street:

1. As one of the general public.

2. As owner of the reversionary interest to the center of the street.

3. As owner of a lot, possessed of the right of ingress and egress to and from the street.

In the first relation he has the right, in common with every other member of the public, to the use of the street. The fact that vehicles pass along the street upon tracks level with the bed nf the street, and leaving sufficient room for him to pass on foot or with his vehicle, does not interfere with this right. The fact that he is compelled to turn aside, when meeting or passing a car upon the track, is an incident to the use of the street, but no infringement of any right- possessed by him. He is not thereby hindered, delayed, or obstructed in his passage. Free passage is all the law gives him.

In condemning land for the use of streets and highways, the owner receives as damages the full market value of his land. After it has been condemned or dedicated, there is no such thing as damage to his reversionaryinterest, caused by any use which is a public one. Whatever may have been the ancient adjudications limiting the rights of the public in the streets to passage and repassage, and whatever may now be the rule with regard to highways in the country, with the growth of population in our cities have come increased needs for heating, lighting, draining, sewerage, water, etc., and with these has come also a corresponding extension of the public rights in the streets. Immense sewers and water mains may be dug, aad the soil removed, culverts and drains *654 constructed, without compensating the abutting owners. It may now be considered the well-settled rule that the streets of a city may be used for any purpose which is a necessary public one, and the abutting owner will not be entitled to a new compensation, in the absence of a statute giving it. Ang. Highw. § 312; Town of Palatine v. Kreuger, 121 Ill. 74 (12 N. E. Rep. 76); Murray v. Commissioners, 12 Metc. 455; Pierce v. Drew, 136 Mass. 75; City of Boston v. Richardson, 13 Allen, 146.

So far, then, as these defendants are concerned, it is immaterial whether they or the city own the fee in the street. Their rights are the same in either case. So long as they are unobstructed in the use and enjoyment of their property, having convenient ingress and egress, and the use of the street is an authorized and proper public use, they have no legal cause for complaint. It is evident that street railways, when constructed so as not to interfere with the rights of others upon the street, form no obstruction to such use and enjoyment. They make no more noise than the omnibus or other heavy vehicles, are -not more dangerous, and no more interfere with access to the abutting lots. They constitute a modern and improved use only of the street as a public way. These improved methods become necessary in populous cities. The use is the same; the methods only diiferent. Without them, clerks and working men and women could not be provided with cheap and rapid transit from their working places to the suburbs of the city, where they may have cheap and comfortable homes. These views are in accord with the clear weight of authority. People v. Kerr, 27 N. Y. 188; Kellinger v. Railroad Co., 50 Id. 206; Mahady v. Railroad Co., 91 Id. 148; Pierce, R. R. 234; Elliott v. Railroad Co., 32 Conn. 579, Hinchman v. Railroad Co., 17 N. J. Eq. 75; Attorney General v. Railroad Co., 125 Mass. 515; Eichels v. Railway Co., 78 Ind. 261; *655 Hobart v. Railroad Co., 27 Wis. 194; Brown v. Duplessis, 14 La. Ann. 843; Railway Co. v. Railway Co., 31 Kan. 660 (3 Pac. Rep. 284); Smith v. Railroad Co., 87 Tenn. 626 (11 S. W. Rep. 709); Citizens’ Coach Co. v. Railroad Co., 33 N. J. Eq. 267; Briggs v. Railroad Co., 79 Me. 363; Taggart v. Railway Co. (R. I.), 19 Atl. Rep. 326; Cleme v. City of Cincinnati, 16 Wkly. Law Bul. 355; Cooley, Const. Lim. (6th ed.) 683; 2 Dill. Mun. Corp. § '772; Mills, Em. Dom. § 205. They are also in accord with reason and common sense. It is the view unanimously adopted by this Court in Grand Rapids & I. R. R. Co. v. Heisel, 38 Mich. 62 (decided in 1878). It is true that this question was not directly involved in that suit, but the extent of the use of streets was involved. The question appears to have been carefully examined by the Court, and the authorities are cited. While it may be termed “dictum,” still it comes to us' as the deliberate opinion of the learned Justices who then constituted the Court, and as such is entitled to great weight. That decision clearly voiced the practical construction which had theretofore been placed upon these laws by the people, and upon the faith of which many such roads had been built in many cities of the State, and vast sums of money invested.

We are cited by defendants’ counsel to Taylor v. Bay City Street Ry. Co., 80 Mich. 77. The distinction between that case • and the present one is too clear to require comment. The former was decided upon the express terms of the charter of Bay City. The charter of the city of Detroit contains no such provisions. The question here involved was not there even discussed.

5. It is also insisted that the poles interfere with access to the abutting property, and therefore constitute an invasion of private rights. It cannot be seriously claimed, under the evidence in this case, that these poles inter *656 fere with the. present occupancy of the land; this is virtually conceded; but defendants insist that, in platting lots and selling them, it will, be necessary to take them into consideration. This is a contingency which may never happen, and therefore no damage may ever result. Should it ever happen, the common council have ample power to require and compel these poles to be so placed as to create no such interference. Failing in this, the defendants have an ample remedy in the courts. Such contingencies are too remote to form any basis for an injunction or for damages.

It has frequently been held that telegraph and telephone poles are not necessarily erected to facilitate the use of the streets, and consequently that they create an additional servitude. But the authorities are by no means uniform. To the contrary are Julia Bldg. Ass’n v. Bell Tel. Co., 88 Mo. 258; Pierce v. Drew, 136 Mass. 75. These decisions are based upon the doctrine that the whole beneficial use of the land has been taken and appropriated to the public, and that one of the original uses of a highway was the transmission of intelligence. One of the first cases to make this distinction was Taggart v. Railway Co., supra (decided in January, 1890). Referring to this case, Judge Dillon says:

“The distinction * * * is so fine as to be almost impalpable, and it suggests serious doubts whether both conclusions are sound and reconcilable. The general subject awaits further development and settlement.” 2 Mun. Oorp. (éth ed.) p. 893, note.

The learned author does not state which he believes to be the correct principle. -Since then the question as to whether the erection of poles, for electric street railways constitutes an additional servitude has been several times before the courts, and thus far they have been held to be ancillary to a proper use of the street, and to create *657 no such additional servitude. Louisville, etc., Manfg. Co. v. Railway Co. (Ky.); Halsey v. Railway Co. (N. J.), 20 Atl. Rep. 859; Pelton v. Railroad Co., 22 Wkly. Law Bul. 67; Lockhart v. Railway Co. (Penn.), 21 Atl. Rep. 26.

These poles usec\ by the complainant are *a necessary part of its system. When they d.o not interfere with the owner’s access to and the use of his land, we see no reason why they should be held to constitute an additional servitude. Certainly they constitute no injury to his reversionary interest. To constitute an additional servitude, therefore, they must be an injury to the present use and enjoyment of his land. But they do not obstruct his light or his vision, as do the structures of an elevated railroad. Neither they nor the cars they assist in moving cause the noise, steam, smoke, and dirt which are produced by steam-cars. They do not interfere with his going and coming at his pleasure when placed as they can and must be, so as to give him free access. Wherein, then, is he injured? If it be said that they are unsightly, and therefore offend his taste, it can well be replied that they are no more so than the lamp-post or the electric toAver. It is as necessary that rapid transit be furnished to a crowded city as it is that light should be furnished to its streets. Public convenience and necessity must control in all such cases.

6. We have thus far discussed the questions involved upon the assumption that sufficient room Avas left to permit the free passage of teams and vehicles when the cars were upon the track. It is claimed by the defendants that this space is not sufficient for that purpose. If this be so, it is evidently owing to the condition of the street, which is neither graveled nor paved, and to the nature of the soil, Avhich in wet times is very muddy and difficult to travel. Such Avas its condition at the time this *658 controversy arose, and it so continued during all the time to which the testimony was directed. The complainant's track is in the center of the street. Its grade was established by the city engineer, and presumably the grade of the street, ‘ when established, will b§ the same as the grade of the railway. The poles are about 21 feet 7 inches from the center of the road, are placed between the ditch and the sidewalk, and average 10 feet 4 inches from the fence line. The track is 4 feet 8 inches wide, and the cars are the same width as the ordinary horse cars. The distance from the rail to the pole is about 19 feet. This space is ample for the passage of teams and vehicles, if the street were properly graded. The evidence upon this branch of the case is entirely unsatisfactory, and insufficient to enable us properly to determine the question. It is apparent, both from the opinion of the learned circuit judge and the exhaustive briefs of counsel, that this was a matter of minor consideration in the court below, the main desire being to settle the other important questions involved. The roadbed and track were first constructed, and no steps were taken to enjoin the complainant when engaged in that work, and no objection appears to have then been made. No trouble arose until the complainant commenced to erect its poles, which were at first claimed to have been erected outside the street limits upon the defendants' lands, but which are clearly within such limits.

Under this record we can only announce some general principles, leaving the defendants without prejudice to pursue such remedy as they may have when they can establish a violation of their legal rights.

1. The complainant 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 so *659 construct it as to interfere with'the rights of the general public in the street. Grand Rapids St. Ry. Co. v. West Side St. Ry. Co., 48 Mich. 433.

2. Nor in a street, though of sufficient width, if its condition be such that the operation of the railway will result in the practical exclusion of others from the use of the street. A railway so constructed and operated would be a public nuisance, and the courts would abate it.

3. The complainant’s road-bed" and track must be built substantially with the level of the street, so as to permit vehicles to cross without difficulty.

4. The poles must be so placed as not to interfere with the right of ingress and egress to abutting property.

It is insisted that the court was in error in excluding testimony as to the dangers and actual perils witnessed by persons from the use of the new method of transit, for the reason that this testimony had a bearing upon the interference with the customary use of the street. This question arose three times upon the hearing. On the first two occasions the testimony ruled out referred entirely to the tendency of these cars to frighten horses. The court made its third ruling at the close of the testimony of one Mrs. Eascher, who had testified to the decrease of travel upon the street, to the frightening of horses, and the decrease in rents. The court then announced that eight or ten witnesses had testified to the condition of the road, and no more testimony would be allowed on that point. Defendants’ counsel announced that they had a large number of witnesses to the same effect, and asked permission to call two or three more. The court said that five or six witnesses to any particular fact was sufficient, and that it was clearly within its discretion to limit the number of witnesses: that as to the points already covered defendants would not be permitted to call more witnesses, but as to any new facts they might call more. The circuit judge was clearly *660 right in this exercise of his discretion. Beyond this exercise of discretion the court, upon the hearing in equity cases, can exclude only such testimony as is scandalous and impertinent.

The decree of the court below is affirmed, with the costs of both courts.

Long, J., concurred with Grant, J. Champlin, C. J.

I am not prepared to say that the construction of a street-railroad track in a street is of itself no additional burden or servitude upon the street. I think it is, but to what extent depends upon all the facts and circumstances under which it is imposed. If the circumstances are such that in a narrow street, or in the mode of construction, it becomes a nuisance to the property-owners or the public, as pointed out by my Brother Grant, I think the additional servitude would be quite apparent. If in any case it is such an invasion of private rights as to cause damage to the owner of the fee of the soil or abutting proprietors, I think they have a legal remedy to recover such damage in a suit at law. And so with regard, to the setting of poles to aid the propulsion of cars by electricity. I do not think, ordinarily, it is such a taking of private property as requires condemnation and 'compensation before the poles can be set, but, I think, if the owner suffers damage on account of the erection of poles, he should seek his remedy at law for such damage.

I concur in the result reached by my Brother Grant for the reasons—

1. That the complainant was proceeding under color of legal authority to construct its railroad.

2. I think the defendants have a complete legal remedy for all injuries complained of in their cross-bill.

Act No. 148, Laws of 1855.