from either of its termini to such further and other point as they may determine, or for the purpose of constructing branches from its main line; and upon such vote the said company may make articles amendatory of their original articles, for the purpose of extending or changing the line of its road, or for constructing branches from its main line, as aforesaid." And then, after providing for the proper recording, etc., of such amendment, the section closes as follows:

"Such amendment, amendments, or alterations shall have the same force and effect as though said amendment or alteration had been included in, and made a part of, and embraced in, its original articles of association.

The evidence shows that on the 8th day of June, 1888, the petitioner availed itself of this statute by which its line of road might be extended from Scranton eastward to the line between the states of Colorado and Kansas, designating the Union depot as its western terminus, and also changing the name of the corporation to that of "The Colorado Eastern Railroad Company." These facts are set up in the amended petition on which the parties have gone to trial. The defendant makes two objections to this claim of the petitioner: First, that the said provision of the statute applies only to the instance of a corporation before it has built its road and established its termini; and, second, that this action was taken by the petitioner after the institution of this condemnation proceeding. Respecting the first objection, it must be conceded that there is nothing on the face of the section of the statute in question to indicate that such right of amendment was to be limited as contended by defendant. "To change its termini, or so as to extend the length of the line thereof from either of its termini to such further and other point as they may determine," would imply that the termini had been established, and the line of the road located. There is no limit on the face of the statute itself as to the time when this change may be made; but it may be done "at any meeting of two-thirds in value of its stockholders. Certainly, if it had been within the mind of the framer of the law to put such a limitation upon its operation, some apt expression indicative thereof would have been employed. It might be sufficient, on language so broad, to say that the statute must stand for a reason. But, if one is to be given to justify a broader construction than that contended for by the learned counsel for the defendant, a'most palpable one would present itself in the very history of the commercial life of the state of Colorado. Her mines of coal, silver, gold, and other precious metals are the chief sources of her wealth and prosperity. Without them, the state would fall far below her imposing attitude as

a member of the Federal Union. The development of these mines is a matter of paramount importance to the commonwealth. A mine is discovered in her mountains. The excitement incident to such an event draws to it swarms of miners, prospectors, and speculators. Villages spring up at these points as the magic creation of a night. A charter for a railroad is obtained to reach such a point, and afford a market for its products, and bring supplies for the sustenance of the people gathered around. These mines, not infrequently, are soon exhausted and shut down, and as suddenly as they were created the villages disappear. Other mines further on are discovered, and the history just given repeats itself. New towns are continually springing up in a new and rapidly growing state. Recognizing the general rule of law con. tended for by defendant, that a road once located, and a terminus once fixed, is an exhaustion of the power granted, the legislature must have intended by this very provision of the statute to remove this obstruction, and meet the very necessities of her peculiar condition.

Counsel for defendant seeks authority or reason for his construction of said statute by reference to section 115 of the same chapter; to understand which we must go back to section 110, which provides, inter alia, for a change of the name, the place of business, the increase or decrease of the capital stock, or a change of directors, or for consolidation of such corporation. Section 115 declares that

"Such change of name, place of business, increase or decrease of capital stock, increase or decrease of number of directors, managers, or trustees, or consolidation of one corporation with another or with others, shall not affect suits pending in which such corporation or corporations shall be parties; nor shall such change affect causes of action, nor the rights of persons, in any particular; nor shall suits brought against such corporation by its former name be abated."

The argument made on this is that, as this section provides that such change of name, place of business, increase or decrease of stock and directors, etc., shall not affect suits pending, nor causes of action, nor the rights of parties, etc., this inclusion indicates a purpose to exclude from its operation the change of termini or the line of road, and therefore it was not contemplated that any change of the latter character could take place in a "going concern." On this, I submit the following observations: The provision respecting the change of termini occurs in a subsequent section of the statute; and, it is but reasonable to say; doubtless the legislature assumed that the provision of section 115 would apply

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equally to the amendment provided for in section 127, as no reason occurs to my mind for any distinction in the matter of pleading and suits respecting these provisions. "The intention of a legislative act may often be gathered from a view of the whole and every part of the statute, taken and compared together. When the true intention is accurately ascertained, it will always prevail over the literal sense of the terms. And when it is doubtful whether a certain thing falls within the terms used in an act it is proper to resort to other statutes to ascertain the intention of the legislature in the enactment of the general statute. A thing within the intention of the legislature in framing a statute is sometimes as much within the statute as if it were within the letter." In re Bomino's Estate, 83 Mo 441. Said section 127, authorizing such alteration or amendment, being in the statute at the time of the grant of petitioner's charter, this provision was as much a part of the grant as if it had been incorporated expressly in it. Therefore, in so far as third parties are concerned, or those dealing with the corporation, or with whom the corporation might come to deal, they would be subject to the rights and privileges conferred by this statute. Amendments are allowed by the courts with great liberality where no material rights of the other party are affected or changed, and where no great prejudice could likely ensue. The only possible effect of allowing this objection would be, if the petitioner's right to proceed depended upon this amendment, to turn it out of court, and to compel it to begin de novo. Nothing thereby would be gained by the defendant except delay; and it does seem to me that the very spirit of the law should compel the court, in such instance to let the cause proceed. Under the view, however, I have expressed of the petitioner's right under its charter as it existed at the date it instituted this proceeding, it was not necessary for it to invoke the amendment of June 8, 1888, to enable it to reach the Union depot.

Other matters might with propriety be discussed, arising on the evidence and the argument of counsel; but, as they are not determinate in their character, and this opinion has already been greatly extended, further discussion is forborne. It results that the issues on hearing are found for the petitioner, and judgment will be entered accordingly.

Location of Terminus of Railroad within City. The case of McCartney v. Chicago & E. R. Co., 112 Ill. 611, 29 Am. & Eng. R. Cas. 326, is exactly in point with the principal case. It is there held that the words "to" and "from a place or city as contained in a charter authorizing the construction of a railroad should be construed to mean to or from a point within the place to or from which the road is authorized to be constructed. Ac

"

cordingly, authority to construct and operate a railroad from the city of Chicago to any point in the town of Evanston was held to authorize the location and operation of the road from any point within the city of Chicago. It was also held in this case that where a railroad company is authorized to build a railroad from a city to another place the fact that it is also empowered to contract with a horse railroad company for the joint or separate operation of either or both companies' roads as may be agreed upon, will not operate as a limitation upon the railway company in respect to its entrance into the city. And see to same effect Chicago & N. W. R. Co. v. Chicago & E. R. Co., 112 Ill. 589, 25 Am. & Eng. R. Cas. 158.

It

Western Pennsylvania R. Co's Appeal, 99 Pa. St. 155, 4 Am. & Eng. R. Cas. 191, is also pertinent. In that case it appeared that a railroad company authorized by its charter to construct a railroad from an incorporated city to another point, accepted an ordinance passed by the councils of such city granting it a right of way up to a certain point therein. then built its track up to that point and established its freight and passenger depots. There was no other act upon its part indicating an intention to fix its terminus at that point. The supreme court of Pennsylvania held that the power reposed in the company to locate and establish a terminus had not been exhausted and that it might with the consent of the city Councils subsequently extend its line to a point beyond that where its depots were situated. And see note to this case, 4 Ám. & Eng. R. Cas. 200. And see generally as to the location of the terminus of a railroad, Chicago, etc., R. Co. v. Dunbar (Ill.), 5 Am. & Eng. R. Cas. 253; Simms v. Brooklyn St. R. Co. (Ohio), 4 Id. 132; South Chicago R. Co. v. Dix (Ill.), 17 Id. 157; Murphy v. Kingston, etc., R. Co. (Ont.), 25 Id. 178; Piedmont, etc., R. Co. v. Speelman (Md.), 30 Id. 316.

Eminent Domain-Condemnation of Property of Another Railroad Company-Necessity. See Mobile & G. R. Co. v. Alabama Midland R. Co. (Ala.), 39 Am. & Eng. R. Cas. 6, note 16.

Authority of Small Railroad Companies Promoted Partially as Private Enterprises to Exercise Power of Eminent Domain. The decision of the principal case upon this point is well supported, for it is clear that where land is taken for its use by a railroad company having prima facie the right to exercise the power of eminent domain, the question whether the use is public or private depends upon the right of the public to use the road and to require the corporation as a common carrier to transport freight or passengers over the same, and not upon the amount of business done by the company. Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461, 40 Am. & Eng. R. Cas. 449; De Camp v. Hibernia U. R. Co., 48 N. J. L. 48; Phillips 7. Watson, 63 Iowa, 33: Clarke v. Blackmar, 47 N. Y. 156; Contra Costa Coal Mines R. Co. v. Moss, 23 Cal. 324, Lewis, Em. Dom., 166. Nor does the question whether the use is public or not depend on the number of persons who may have occasion to use the railway; if all persons have the right to use it, it is a public use though the number who require the use may be small, Chicago, B. & N. R. Co. v. Porter (Miss.), 43 Am. & Eng. R Cas. 170. And So far as the public is concerned, when what railroad corporations need is for "public use" they have the right to invoke the exercise of eminent domain; but in so far as that which concerns them is to their private interests, their profits and gains are concerned, they stand as individuals or merely as private corporations in which the public has no concern, and for such private purposes cannot call into exercise the power of eminent domain. Pittsburgh W. & K. R. Co. v. Benwood Iron Works, 31 W. Va. 710, 36 Am. & Eng. R. Cas. 531, note 551.

But a railroad which does not connect with a highway, which can only be reached by passing over state or private lands, which can have no habitations along or freight traffic over the road, whose sole business is to con

vey sightseers along the Niagara River, cannot exercise the power of eminent domain since there is no public use. In re Niagara Falls & W. R. Co., 108 N. Y. 375, 33 Am. & Eng. R. Cas. 99, note 104. And when a railway corporation for a period of five years fails to construct the railroad named in its charter, but condemns private property and constructs a railroad wholly unsuited to the wants of the public and for the benefit only of coal mines owned and operated by the principal corporators and stockholders of such railroad company, it is a misuse of its corporate powers, franchises, and privileges. State v. Hazelton & L. R. Co., 40 Ohio St. 504, 14 Am. & Eng. R. Cas. 51.

Public Use Resisting Condemnation-Waiver of Rights. Where a railroad company sought to condemn certain lands the landowner resisted the proceedings on the ground that the proposed road was not a public use. The lower court decided that the use was public and the landowner did not appeal from its decision, but consented to the selection of commissioners and the litigation of questions of value. Subsequently, the court of ap peals decided in a similar proceeding that the railway in question was a mere private enterprise and not of public use; held, that the landowner had not waived her rights so as to be precluded from afterwards moving to set aside the entire proceedings. In re Niagara Falls & W. R. Co., New York Court of Appeals, May 9, 1890.

CHEROKEE NATION

ย.

SOUTHERN KANSAS R. Co.

(135 U. S. 640.)

Indian Lands-Grant of Right of Way by Congress. Under its authority to regulate commerce among the several states and with the Indian tribes, congress has power to grant to a railway company a right of way through the Indian Territory. Grant to Southern Kansas R. Co. by Act of July 4, 1884, is valid.

The Cherokee Nation is not a Sovereign State, which alone can exercise the power of eminent domain within its limits, but is a dependent political community subject to the permanent authority of the United States.

Eminent Domain-Power of the United States to Exercise.-The United States may exercise the right of eminent domain anywhere within its limits for purposes necessary to the execution of the powers granted to the general government. Indian lands like the lands of private persons everywhere within the United States are subject to this authority, and it is not necessary that an Act of Congress exercising this power should express in words the purpose for which it was passed so as to show that its objects are such as admit of the exercise of this right.

Regulation of Commerce-Instrumentality Employed by Congress. In the execution of its constitutional power to regulate commerce, Congress may employ, as a fit instrumentality, a railway corporation created by one of the

states.

Construction of Railway in Indian Territory-Bill by Indian Nation to Enjoin Petition for Damages-Procedure.-The Cherokee Nation filed a bill in the Circuit Court seeking to enjoin the Southern Kansas R. Co. from constructing its railway through the lands of that nation. The bill also prayed that, if the injunction should be refused, it might be treated as an