(dissenting). Defendant Lansing & Jackson Railway Company is a Michigan corporation organized under the street railway law—
“To construct, purchase, lease, own, maintain, use and operate street railways in, through, upon and along private rights of way, streets, roads, alleys and highways in cities and villages, and extending through and from cities and villages into adjoining townships and in, through, upon and along private rights of way, streets, roads, alleys and highways in townships in the State of Michigan and especially the cities of Lansing and Jackson and the townships, villages and cities between said cities.”
Defendant Michigan United Railways Company is organized under the same law for the same purposes. The territory over which its operations may extend is larger and is claimed by lease or otherwise to be operating the last-named defendant. Defendant Lansing Southern Railroad Company is a Michigan corporation organized under the general railroad law of the State for the purpose of constructing, operating, and maintaining a railroad 2.36 miles in length. Defendant Northern Construction Company is also a Michigan corporation organized under Act No. 232, Pub. Acts 1903 “to construct and equip street railways and interurban railways.” Defendant Lansing & Jackson Railway Company, in pursuance of its purpose to construct and operate a street railway between Lansing and Jackson, obtained its private right of way through townships between said cities and is constructed for practically the entire distance outside the *16limits of the complainant city of Mason. Extended negotiations between the city authorities and the officers and agents of this defendant, relative to granting it a permit to enter its limits and construct its street railway across its territory, resulted in a refusal on the part of the street railway company to accept the terms and conditions offered by complainant.
These defendant corporations are all organized, owned, and operated in the same interests, each being officered by the same persons or by officers and agents of the others, except perhaps the Michigan United Railways. The active agent of defendant Lansing & Jackson Railway Company, at the time it was seeking this franchise, stated to the mayor of the city of Mason that if a franchise was not granted they would get through without one. Defendant Lansing Southern Railroad was then organized. It is practically all within the corporate limits of Mason and passes through upon the line the street railway company desired. Its north and south termini coincide with the termini of the two sections of defendant Lansing & Jackson Railway Company at or about the northern and southern limits of complainant corporation, and it is laid out to be connected with them and within the city to supply the link in this street railway as it passes through, thus completing the street railway line of the defendant last named from Lansing to Jackson. The purpose of this defendant is to have the street car passengers of the Lansing & Jackson Railway Company carried over its line in the cars without change into and through complainant city, making but one stop at a place provided therefor. It is admitted that the building of a street railway through this city was abandoned because they were not willing to submit to the terms imposed by complainant, and they now propose to get through by building a railroad under the general railroad law and operate it for this purpose, as they claim they are legally entitled to do. Proceeding upon this theory, after organizing under the general railroad law, the defendant Lansing *17Southern Railroad Company secured its right of way through the city of Mason, and the construction company was proceeding to construct its road thereon through the city, crossing 11 streets, without consent or permission of the municipal authorities.
The bill of complaint was then filed, and defendants' were enjoined. It is the contention on the part of complainant : That the organization of the Lansing Southern j Railroad Company is a subterfuge, not a good-faith proceeding; that the use of the general railroad laws is a fraudulent use; that the sole purpose of such organization is to carry on a street railway business within complainant’s corporate limits, and avoid the regulations and restrictions imposed upon street railways by law, when in truth and in fact it is a part of the Lansing & Jackson Railway Company; and that the organization for such purpose is a fraud upon the statute. Complainant also contends that, the purpose of this defendant being to carry on a street railway business, such purpose is not within its corporate power.
It cannot be claimed that the municipality was not strictly within its rights in imposing such terms as it saw fit as a condition to granting a franchise to the Lansing & Jackson Railway Company. This court has so held, and has said that a municipality may absolutely refuse the use of its streets to a street railway. These decisions have never been questioned. City of Monroe v. Railway, 143 Mich., at page 320 (106 N. W. 704), and cases cited. The demands of the municipality, whether considered reasonable or unreasonable by the street railway company, cannot be used as an argument excusing or warranting an unlawful attempt to get through said city by the street railway company.
In considering the statutes under which general railroads and street railways may be organized, the legislative intent is clear that the street railway act was intended for street railways only. Can we say of the general railroad law that there is either an express or an im *18plied intent that corporations were to organize under it for the purposes of conducting a street railway business ? Street railways are of modern growth, and, except as operated by animal power, were unknown at the time the general railroad law was enacted. This general railroad law, by reason of the business in which corporations organized under it were intended to engage, and the manner in which said business by its terms was to be conducted, is not adaptable to street railway business, which, from its very nature, must be subject to the restrictions and under the control of the municipality in which such business is to be carried on. Such use of a general railroad cannot be said to have been within the fair intendment of the statute. This court has distinguished between street railways and general railroads in several cases, and such distinction has been drawn from, their purposes and uses rather than from the statutes under which they had been incorporated. Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); Township of Ecorse v. Railway, 153 Mich. 393 (117 N. W. 89), and cases cited.
There is an important distinction created by statute between street railway and general railroad corporations. No authority is given to a street railway company to enter a municipality and construct and operate its road in, upon, along (or across) its streets or highways without permission of the proper authorities. The word ‘ ‘ across ” is not in the statute, but a street railway is not permitted to operate at all within corporate limits without such permission. Specific authority is given to a company organized under the general railroad law to construct its road across any street or highway. "By amendments to the street railway law, the right was given to extend such railways, having obtained proper consent, into the streets and highways of a township adjacent to a city or village, and later to construct through any township with the consent and upon the terms required by the township authorities. By Act No. *19133, Pub. Acts 1905, power was given street railways to exercise the right of eminent domain by proceedings the same as under the general railroad laws; but in none of these amendments is there any repeal of the required permission of city, village, or township authorities.
One distinction between street railways and general railroads recognized by the courts was that the former relieved the congested traffic upon the streets, and was therefore not an additional servitude. The urban and interurban street railways are merely the extension of street railways beyond city and village limits and have been permitted upon the streets and highways of townships for the same reason. Granting power to these roads to build upon private rights of way does not take them out of their classification as street railways and out of municipal control. Whether they own parts or the whole of their rights of way, they must be classified by the business they are engaged in, and the law under which they should be organized is the street railway law. There is no other law providing for the organization of street railway companies. Street railways always have been, and of necessity always must be, subject to control and regulation by municipal authority. Operated upon its own right of way through a city, a street railway presents dangers to the public as necessary to be guarded against as when in the open street. To hold that the statute permitting such roads to own and occupy private rights of way, by implication, repealed the provisions of law requiring municipal control over street railways, is unwarranted and unsupported by authority. If such is to be the holding of this court it will be the first time that such a construction has been placed upon an amended statute. The rule which we have heretofore followed has been that repeals by implication are not favored, and are only allowed when the implication is a necessary one. The evolution in urban and suburban transportation, and the power used, is recognized, and must be taken into consideration; but such *20improvements, instead of operating to put aside the reasonable control of its agencies provided by law, and necessary for the safety of the citizen, should operate to add to the care and control of the authorities by reason of added dangers.
The defendants did not contend for the construction last above stated, but they merely suggested it. Such construction practically worked out would reach results extremely complicated. A street railway crossing a city might be constructed partly on its right of way and partly in the streets. For several blocks the city could impose regulations, then for a distance no control, and so alternating for greater or lesser distances. The grant of the right of eminent domain was not extended to street railways to relieve them from supervision and control, but doubtless to secure such roads which were at that time building on private rights of way immunity from being obstructed by objecting owners. See Grand Rapids, etc., R. Co. v. Stevens, 148 Mich. 646 (107 N. W. 436).
The conclusion is that municipal control over street railways continues under the street railway law, and was not repealed by the amendment of 1905, and that whether a street railway within corporate limits is operated “ in and upon the lines of streets and ways ” or upon its private right of way through the municipality, crossing streets and ways, it may be there only under such conditions as may be imposed by the municipality. This evidently was the practical construction put upon this amendment by defendants who proceeded to organize defendant Lansing Southern Railroad Company under the general railroad law, and cross the city practically on the line where it was desired to run the street railway. It is not denied thát this was the reason for organizing this defendant company, or that the purpose is to make it the link through complainant city of the street railway line of the Lansing & Jackson Railway Company. The purpose is to lease this line to be used to carry on a street railway business. There is no claim made that the Lansing Southern Railroad Com*21pany intends to equip its road, less than 2£ miles long, for the purpose of carrying on a general railroad business. Defendants declare that to use this road as herein stated their intention is to use it, is a proper and legitimate use.
Under the circumstances herein related, the general railroad law was resorted to, and defendant Lansing Southern Railroad Company was organized. The project was conceived by the same agent of the street railway company who threatened to go through the city without permission. He outlined the plan, agreed to and did pay all expenses, including 5 per cent, of stock subscriptions required by law, agreed that subscribers would lose nothing, and thus secured their signatures. The record clearly shows that this was a subterfuge, a dishonest organization, and a fraud upon the statute. There can be little room for differences of opinion upon this proposition, after a careful study of this record. Defendants in this manner sought to accomplish by indirection that which they could not do directly. Courts cannot permit undertakings like this to succeed, and upon this ground complainant should have been granted relief.
The other contention of complainant that it is not within the corporate power of defendant to engage in the street railway business must also be considered. It is the first time the question has been squarely before this court. From what has already been said in this opinion, the position that will be taken upon this question may be readily inferred. Were it not for the fact that it is urged that the business this defendant proposes to engage in is a general railroad business which could be done by it if disconnected from the street railway, and therefore that the intent and purposes of the other defendants and the organizers of this road are immaterial, it would be unnecessary to consider further the nature of the business this defendant is to engage in. The question is not what such a company under certain circumstances might do, and it is not urged that it might operate and maintain a street rail*22road. It is urged, as already stated, that this is a general railroad business within the general railroad law. What it proposes to do, as stated in this opinion, is gathered from the admissions of defendants and the undisputed evidence. The position taken by defendant that it is not to be operated as a street railway is not tenable. On account of the physical facts it cannot be maintained. It is to be set in as an integral part of a continuous line of street railway from Lansing to Jackson, operated by one street railway corporation, which can only perform those acts within the corporate powers of a street railroad. Defendant company’s road will be so situated that it cannot receive any other than street railway business. It seeks to avoid this inevitable conclusion by asserting that within complainant corporation but one stop will be made where passengers may enter and leave the cars. This does not meet the situation, nor fix the classification of this business. Nor is any such proposition of any binding effect upon this defendant. It will occupy its own right of way, and, if it may lawfully engage in this business, it may determine for itself and its convenience that a stop should be made at each street crossing. If the municipality may not regulate and control this traffic, who can interfere with this defendant from carrying out such a program ?
The length of this railroad, or that it is wholly within corporate limits, is not determinative of this question, nor that other roads organized under this law have within cities engaged in business. In every such case the business has admittedly been a general railroad business, or a business incident thereto, and in no instance has the question here raised been discussed or the corporate power of such roads been questioned. We are referred to no case similar to the case at bar, nor have we been able to find any. Whatever indications have been incidentally made in any opinions of this court are against the proposition that it is within the corporate powers of general railroads to maintain and operate street railways.
*23This case is one of very great importance, and the results of a decision in favor of defendants’ contention would be far reaching. The wisdom of the legislature in providing separate statutes for two classes of roads cannot be questioned, and the legislative intent to continue such separation is apparent. Over one class the municipality is given plenary powers to regulate and control. The other class is for the most part under general control of State authorities. These relations to the municipality and the State have become well known, and the operation of these laws has in general been satisfactory. It would be neither just nor wise for the courts by construction to change the well-settled policy of the State. If general railroads may engage in street railway business, how may courts distinguish which class of roads imposes an additional servitude, when within streets and highways? Certainly no municipal control could be imposed upon general railroads.
The conclusion is that it is not within the corporate power of a general railroad to engage in street railway business or lease or permit its road to be used for such purpose. The bill of complaint is drawn upon the.theory that a court of equity would restrain the commission of the acts charged as unlawful and unauthorized, and threatening a continuing trespass. A court in equity without doubt has jurisdiction to determine the rights of the parties in this case. No collateral attack is made upon the corporate organization. The question involved upon this branch of the case is a question of corporate power. That such question may be tried in a collateral proceeding has been held by this court. Orr v. Lacey, 2 Doug. (Mich.) 230; Joy v. Plank Road Co., 11 Mich. 155; Grand Rapids Bridge Co. v. Prange, 35 Mich. 400 ( 24 Am. Rep. 585); Day v. Buggy-Co., 57 Mich. 146 (23 N. W. 628, 58 Am. Rep. 352); Detroit City Ry. v. Mills, 85 Mich., at page 648 (48 N. W. 1007 ), and cases cited. Where property rights of individuals are invaded by the ultra vires acts of corporations, equity will interfere by *24injunction. Case last cited, supra; 29 Am. & Eng. Enc. Law (2d Ed.), p. 80, citing Delaware, etc., Canal Co. v. Railroad Co., 16 N. J. Eq. 321.
The decree of the court below should be reversed, and a decree entered granting a perpetual injunction as prayed.
Blair, C. J., concurred with McAlvay, J.