and stations by donations of lands and moneys to some of its directors or stockholders or agents, cites Bestor v. Mathew, 69 Ill. 138, where it appeared that in 1849 the Legislature of Illinois incorporated a company to build a railroad from a point on the Mississippi River to Peoria, and later its charter was amended so as to authorize the extension of it from Peoria eastward to the State line. Later the company made a contract with a construction company which undertook the construction and equipment of the road. While engaged upon the work, the members of the firm, together with the president of the railroad company and one of its directors and one of its directors and its construction agent entered into a contract with the defendants by which the latter, being the owner of 160 acres of land, agreed, in consideration that the road then being constructe should cross the Illinois Central railroad where their land was situated, the land would be laid out into town lots and sold, and after the proceeds to a certain amount had been received, which were to be retained by defendants, a conveyance of an undivided half of the residue would be made to the other parties. The greater part of the consideration for this agreement was the location of the road. The road was accordingly built and the land sold, and later plaintiff filed a bill against the defendant for an accounting and conveyance of the undivided half of the lots unsold. The court held the contract void as against public policy and dismissed the suit, and the decree in this respect was affirmed by the Supreme Court of the State. The Court, in passing, quoting approvingly from that case, said: "Now if this was the best line for crossing the Illinois Central considered with reference to the interest of the stockholders and of the public, then it was the duty of the officers of the company to establish it there; and if they intended to do so because it was the proper line, but professed to be hesitating between this and another line in order to secure to themselves the contract under consideration, as is somewhat indicated by the evidence, then they were practicing a species of fraud upon the defendants, and using a false pretext in order to acquire defendants' property without consideration." To be sure Bestor v. Mathew was a case in which the officers of the corporation, contrary to the interests of the stockholders, deflected the line of road for their own private gain. This is not such a case as that, but the comment of the court in that case is equally applicable to this case. In this case we say that if this railroad company, acting through its agents and servants, as charged in the answer and admitted on demurrer, professed to be hesitating between extending its line to Oklahoma City or Guthrie, and misrepresented its intentions in order to secure to itself the bonus notes under consideration, when in truth and in fact, unknown to the note givers, it had already contracted to extend its line to Guthrie, and it was its intention to go there, it was practicing a species of fraud upon the defendants and using false representations and false pretence in order to acquire defendant's property without consideration, and will not be permitted to recover in this court. It is unnecessary to discuss the remaining questions arising on the pleadings in this case except to say that inasmuch as the Supreme Court of the Territory of Oklahoma laid down the rule in Guss v. Federal Trust Co., 91 Pac. (Okla.)1045 that a note of the character involved in this case is not void as against public policy and cites in support thereof N. B. Pipes v. Choctaw Northern Townsite & Imp. Co., 16 Okla. 436; 85 Pac. 995; and McGuffin v. Coyle & Guss, 16 Okla. 643; 85 Pac, 945; 86 Pac. 962, we do not feel at liberty at this time to disturb the rule and agree with the court in further holding that defendant not being privy to the contract set forth in the pleadings between the Guthrie Club and defendant in error is not bound thereby and can claim no benefit of any of its favorable provisions. It follows that the judgment of the lower court is reversed and it is so ordered. All the Justices concur except Kane, Justice, who concurs in the result only. JOHN O. MITCHELL, et al. VS. No. 912. TULSA WATER, LIGHT, HEAT & POWER CO. Error from Western District of the Indian Territory. W. R. Lawrence, Trial Judge. Reversed. Ordinances-Where the language of an ordinance granting to a waterworks company a franchise is ambiguous and reasonably susceptible of two constructions, the construction that is more favorable to the public should be adopted. 2. The Act of congress of May 19, 1902, chap. 816, 32 Stat. 200, authorizing cities and towns in the Indian Territory, having a population of 2,000 or over, to issue bonds and borrow money for the construction of water works, is not in conflict with and does not repeal Mansf. Dig. Ark. ch. 29, $775, authorizing municipal corporations to make contracts for water supply. 3. An ordinance which grants to a waterworks company the exclusive right to construct, maintain, and operate waterworks in or near a certain city for the purpose of supplying the streets, lanes, alleys, squares, and public places of said city and for extinguishing fires therein, and for such purposes grants to the waterworks company the use of all the streets, lanes, alleys, squares and public places of the city, or so much thereof as may be necessary in the construction and operation of its waterworks, does not grant to the waterworks company the exclusive right to use the streets, lanes, alleys, squares, and public places of the city in constructing and operating a waterworks system for the purpose of supplying the inhabitants of the city and for domestic and industrial purposes. 4. The granting by a city to a waterworks company of the exclusive right to use its streets, lanes, alleys, squares and public places, to construct and operate a waterworks for supplying the streets, lanes, alleys, squares and public places with water, and for extinguishing fires therein, precludes the city from using its streets, lanes, alleys, squares, and public places for constructing and maintaining a system of waterworks for such purposes, and from granting to other persons, firms, or corporations such right, but does not preclude the city from itself constructing and maintaining a system of waterworks, and in doing so from using the streets, lanes, alleys, squares, and public places of the city, for the purpose of supplying its inhabitants and for domestic and industrial purposes. MISSOURI, KANSAS & OKLAHOMA VS. JOEL FERGUSON, Defendant in Error. (Supreme Court of the State of Oklahoma.) Error from District Court of Logan County. Reversed. 1. A railroad company may let to an independent contractor the contract to do such work as is not in itself necessarily or intrinsically dangerous to person or property, without incurring any liability for the negligence of the contractor's employes. 2. In a suit against a railroad company for negligently injuring an animal, where the proof shows it to have been injuried by becoming entangled in a wire fence in the course of construction along defendant's right of way, it was error for the court to exclude evidence offerred on behalf of defendant showing that the fence at the time was being constructed by an independent contractor. (Syllabus by the Court.) John E. DuMars. Calhoun & Houston, for plaintiff in error; Dale & Bierer, for defendant in error. THE STATE OF OKLAHOMA, ex rel. VS. H.A. KENNER, T. O. SAPPINGTON, AND No. 263. J. T. HINDS, Board of County Commissioners, W. B. Tharrington, County Clerk of Washita County, Oklahoma, and A. O. Campbell, Defendants. (Supreme Court of the State of Oklahoma.) Original Proceeding for Writ of Injunction. Dismissed. The Supreme Court is essentially a Court of Appeals, and is without original jurisdiction to issue writs of injunction in cases where the relief prayed for is purely injunctional. (Syllabus by the Court.) Massingale & Duff, Attys for defendants, The Board of County Commissioners, and County Clerk of Washita County, Oklahoma. Shartel, Keaton & Wells, Attys for defendant, A. O. Campbell. Opinion of ths Court by KANE, J.: This is an original proceeding in the Supreme court commenced by the State of Oklahoma, ex rel, Rutherford Brett, County Attorney of Washita County, Oklahoma, against H. A. Kenner, T. G. Sap |