The cause being at issue was tried and from the evidence received the court made findings of fact substantially as here stated, and based thereon deduced the conclusion of law that, since ordinance No. 3 was never published in a newspaper or posted as required, the substituted charter was not legally enacted, and as it never had life, vitality could not be infused into it by subsequent amendments, neither of which was effective, and thereupon gave a decree as herein before stated.

No escape from the conclusion so reached seems possible, however much it may be desired to uphold the proceedings of the common council and to sustain the vote of the electors. Section 3224, L. O. L., which was incorporated in and thus became a part of the original charter, prescribed the manner and afforded the measure of the power that could have been exercised in the enactment of ordinances. Until that section was legally abrogated in the manner specified by an exercise of the initiative power, it was impossible to inaugurate an amendment of the charter except by a strict compliance with the mode pointed out. In Thielke v. Albee, 76 Or. 449 (150 Pac. 854), it was ruled that under Article IV, Section 1a, of the Constitution reserving to the voters of every municipality the initiative and referendum powers as to all municipal legislation, and Article XI, Section 2, thereof, granting to the voters of every city power to enact a municipal charter subject to the Constitution and criminal laws, a common council of a city could not initiate an ordinance and submit it to a vote of the people as an initiative measure without first enacting it. The decision in that case is controlling herein. As ordinance No. 3 was never legally passed before it was declared to be in effect by reason of the failure to give the required notice, the

substituted charter was never duly adopted, no valid amendment thereto was made, and the taxes attempted to be levied pursuant thereto are void.

It follows that the decree must be affirmed, and it is so ordered. AFFIRMED. REHEARING DENIED.

MR. CHIEF JUSTICE MCBRIDE, MR. JUSTICE BEAN and Mr. JUSTICE MCCAMANT Concur.

Denied March 27, 1917.

ON PETITION FOR REHEARING.

(162 Pac. 1060.)

Petition for rehearing denied.

Mr. H. T. Botts and Mr. E. J. Claussen, for the petition.

Mr. Webster Holmes and Mr. T. H. Goyne, contra.

Department 2. MR. JUSTICE MCCAMANT delivered the opinion of the court.

Plaintiff contends in a petition for a rehearing that in the former opinion we have overlooked Section 3239, L. O. L. This section provides for the approval of ordinances by the mayor and declares that "thereupon, unless otherwise provided, such ordinance shall become a law and be of force and effect." This section and Section 3224, quoted in the former opinion, are both parts of the act of 1893. On familiar principles of construction they are to be read together and when they are so read it cannot be held that Section 3239 nullifies the mandatory provisions of Section 3224. In express terms Section 3224 requires the ordinance to be pub

lished or posted "before it becomes a law." If we were to declare ordinance No. 3 effective without such publication or posting, we would legislate judicially.

It is provided by Section 3482, L. O. L., that "amendments to any city charter may be proposed and submitted to the people by the city council, with or without an initiative petition," but in the instant case the city council failed to do so because of the invalidity of ordinance No. 3. Reliance is placed on a resolution adopted by the council directing the posting of notices of the election which ordinance No. 3 had undertaken to provide for. This resolution did not submit the proposed charter to the voters and therefore did not constitute a compliance with Section 3482, L. O. L.

It is finally contended that the taxes on which plaintiff relies can be supported under the power of taxation granted by the enabling act of 1893. The pleadings in this case admit that the taxes in question were levied under the authority of the amended charter. The attempt to amend having proved abortive, it follows that the taxes were levied without authority and are void.

The former opinion is adhered to and the petition for rehearing is denied.

AFFIRMED. REHEARING DENIED.

MR. CHIEF JUSTICE MCBRIDE, MR. JUSTICE MOORE and MR. JUSTICE BEAN Concur.

Argued February 13, modified March 6, rehearing denied March 27,

1917.

OREGON-WASHINGTON R. & N. CO. v. SPOKANE P. & S. RY. CO.*

(163 Pac. 600; 163 Pac. 989.)

Railroads Terminals Authority to Extend-Powers Conferred by Charter.

1. A railroad company chartered to construct a line of railroad from one city to another is empowered to extend its lines to convenient points within these cities. The definite location by such a railroad of its terminals does not exhaust its charter powers; it may extend its terminals from time to time to keep pace with the industrial expansion of the city.

[As to meaning of "locate" or "located" as applied to railroad, see note in Ann. Cas. 1912C, 1309.]

Railroads Common User Clause in Ordinance-Construction-Eminent Domain-Condemnation of Limited Easement.

2. The common user clause contained in the ordinance of a municipal corporation authorizing the bridging of a navigable river should receive a liberal construction. Such common user is available to a railroad company which desires the user only for the purpose of switching freight cars into an industrial district remote from its terminals. A proceeding fixing the compensation to be paid for such user is analogous to a condemnation proceeding, inasmuch as the rights of the junior company are conditioned on the payment of adequate compensation. As a limited easement may be condemned, under the law of eminent domain, so a railroad company may avail itself of the common user clause to secure a limited use of the bridge. Railroads-Use of Bridge Owned by Other Railroad-Railroad Commission-Presumptions.

3. The presumptions are in favor of an award by the Railroad Commission sitting as a board of arbitration to determine what compensation a railroad which built a bridge is entitled to for the common use of such bridge by another road under a common user clause of the city authorizing the building of the bridge.

Trial-Consent to Consideration of Testimony.

4.

Where defendant saw fit to go into a certain subject in the trial court, it must be held to have given its consent to the consideration by the court of the testimony adduced on that subject.

Arbitration and Award-Setting Aside-Mistake by Arbitrators.

5. Award of arbitrators should be set aside whenever it appears on the face of the award or otherwise by testimony properly received in suit to set the award aside and does not express their real judg

*On annulling award of arbiters, see note in 47 L. R. A. (N. S.) 445. REPORTER.

ment, particularly where the award involves compensation for a continuing right, in which case a mistake, otherwise not remediable, may well become a gross mistake vitiating the award.

Railroads-Use of Bridge Owned by Other Railroad--Award of Railroad Commissioners Suit to Set Aside-Evidence.

6. In suit to set aside an award of the Railroad Commission sitting as arbitrators to determine the compensation of a railroad which built a bridge for its use by another road, evidence held to sustain finding that the award so entirely disregarded, mistook and misapplied the evidence introduced at the hearing before the commissioners as to deprive plaintiff road of its rights in the bridge, and of its rights in the ordinance of a city authorizing its building and containing a common user clause and in the resolution and order of the Secretary of War authorizing the bridge.

Arbitration and Award-Suit to Set Aside-Resubmission.

7. In suit to set aside an award of arbitrators, in the absence of agreement by the parties, the court is not authorized to resubmit a question to the board of arbitrators.

Railroads-Use of Bridge Owned by Other Railroad-Award of Railroad Commissioners Suit to Set Aside-Determination of Question Arbitrated.

8. In suit to set aside an award of the Railroad Commission sitting as arbitrators to determine the compensation to which a railroad which built a bridge was entitled for its use by another road, where the answer of such other road asked general equitable relief, the court, having set aside the award as inadequate, should proceed to determine the reasonable compensation to be awarded.

Railroads Charge for Common Use of Bridge Under Ordinance by Junior Company.

9. A railroad company seeking a limited use of a bridge built by another carrier, pursuant to a port ordinance providing for common user, should be charged with a substantial part of the annual interest charge on the capital invested therein. Such junior company should also pay such part of the annual charges for operating, maintenance, taxes and depreciation as the traffic of the junior company bears to the entire traffic on the bridge.

Arbitration and Award—Suit to Set Aside-Decree-Stipulations.

10. Where the parties to a suit to set aside an award of arbitrators agreed before the arbitrators on stipulations modifying the commonlaw rules of liability in the matter which the arbitration concerned, such stipulations, incorporated in the award, should be made part of the decree setting it aside and correcting its errors.

Railroads-Charge for Use of Bridge-Modification of Decree.

11. A decree fixing the compensation to be paid by a junior company for the use of the senior company's bridge, built under an ordinance providing for common user, should give leave to the senior company to apply for a modification of the compensation in case a third company now using the bridge should cease to use it. The junior company should have the same right to apply for a modification in case one or more additional companies should secure the right to use the bridge.

83 Or.-34