etc., must be recorded in office of secretary of state under sec. 1839.

HON. JOHN S. DONALD,

Secretary of State.

January 7, 1915.

In your letter of January 2nd you enclose a certified copy of the resignation of William H. Leupp, trustee, under a refunding and extension mortgage sent to you by the Milwaukee Electric Railway & Light Company, which resignation is dated July 25, 1912. You ask to be advised whether under sec. 1839 you are authorized to record these copies of resignation or whether you should require the originals from which to make your record.

Sec., 1839 provides as follows:

"Every conveyance or lease, deed of trust, mortgage or satisfaction thereof made by any railroad corporation of any franchises, real estate, fixtures or other real property, in pursuance of law, shall be executed and acknowledged in the manner in which conveyances of real estate by corporations are required to be by these statutes to entitle the same to be recorded, and shall be recorded in the office of the secretary of state, who shall indorse thereon his certificate thereof, specifying the day, hour and minute of its reception and the volume and page where recorded, which shall be evidence of such facts. Every such record of any such instrument shall, from the time of reception, have the same effect as to any property in this state described therein as the record of any similar instrument in the office of a register of deeds may have by law as to property in his county, and shall be notice of the rights and interest of the grantee, lessee or mortgagee by such instrument to the same extent as if it were recorded in each and all of the several counties in which any property therein described may be situated."

There is no authority given here to record any certified copies of documents mentioned in said section 1839, and I believe the original should be presented to your department for record. Had the legislature intended that a certified copy could be recorded instead of the original, it would have been an easy matter to have said so.

You are, therefore, advised that the certified copy should be returned and the original recorded by you instead.

Corporations Public Utilities—Articles of incorporation of street railway company may combine only those purposes authorized by statute.

Secs. 1862 and 1863 construed.

HON. JOHN S. DONALD,

Secretary of State.

January 7, 1915.

Under a recent date you submitted to this department the proposed articles of incorporation of the Central Wisconsin Railway & Utilities Company for examination and for an opinion as to whether the combination of purposes therein provided for is permissible under the laws of this state.

Said articles of incorporation state that the undersigned have associated together for the purpose of forming a corporation under chapter 86 of the Wisconsin statutes of 1898 and the acts amendatory and supplementary thereto, and the business and purposes of the corporation are stated to be as follows:

"(1) Building, maintaining, and using street railways with rails of wood or iron in any city, village, or town, or to extend from any point in one city, village, or town to, into, or through any other city, village, or town, and for running cars propelled by animals or other power for the carriage. of either passengers or freight.

"(2) Constructing, operating, maintaining, and extending of a public utility for the purpose of manufacturing, selling, furnishing and delivering to the public electricity, gas and water, for heat, light, power and such other purposes as may hereafter be required.

"(3) Developing, constructing, operating, maintaining and extending Water Power, including dams, buildings, machinery and all necessary appurtenances.'

Sec. 1862, statutes, contains the following:

"Corporations for constructing, maintaining and operat

ing street railways may be formed under chapter 86 and shall have powers and be governed accordingly.'

Sec. 1863, statutes, provides that:

"Corporations may be formed and governed in like manner as is provided in section 1862 for the purpose of building, maintaining and using railways with rails of wood or iron in any city, village or town, or to extend from any point in one city, village or town to, into or through any other city, village or town, and for running cars propelled by animals or other power for the carriage of either passengers or freight;" etc.

Sec. 1862 above quoted provides for the incorporation of street railway companies and section 1863 above quoted for the incorporation of what are commonly termed interurban railway companies; that these are separate and distinct corporations, the incorporation thereof being separately provided for in our statutes and each possessing peculiar powers is held in Milwaukee L. H. & T. Co. vs. Milwaukee Northern R. Co., 132 Wis. 313, at pages 328 and 329 of the opinion.

These articles evidently intend to provide for the operation of both a street and interurban railway. May a single corporation be formed for this dual purpose?

Did I feel at liberty to consider this as an original question' I should unhesitatingly rule in the negative. I find, however, by reference to numerous articles of incorporation on file in the office of the secretary of state, that it has been quite customary for those organizing street railway companies to also incorporate therein the purposes recited in section 1863 relating to interurban railway corporations.

As typical of this type of articles of incorporation I may refer to those of the Milwaukee L. H. & T. Company, the purposes of said corporation being stated in an amendment to the original articles filed with the secretary of state under date of June 24, 1902, as follows:

"Purposes-Purchasing or otherwise acquiring, constructing, equipping, leasing, maintaining and operating, by electricity or other power, street railways for the transportation of passengers, mail, express, merchandise and other freight, in the city and county of Milwaukee, and elsewhere in said state; and of purchasing or otherwise acquiring, taking, holding and operating real and personal property, rights, privileges, ordinances and franchises, and any enterprises suitable for, or in furtherance of the business or purposes of the corporation; and for the purpose of acquiring the real and personal property, rights, privileges, ordinances and franchises of any individual or individuals, or of any street railway companies, and electric power, light, or heat companies, gas light companies, water companies and heating companies, foreign or domestic, now or hereafter existing, or of leasing the same or acquiring and holding the shares, bonds or other securities of such street railway or electric power, light or heat companies, gas light companies, water companies and heating companies, or interests therein; and of extending its railways to any points within any town adjoining said municipal corporation; and of building, maintaining and using street railways in any village or town or to extend from any point in one village or town to, into or through any other village or town; and of manufacturing, generating, storing, using, selling and leasing electricity, gas and water, for power, light or heat or consumption or other purpose."

Concerning these articles of incorporation, the supreme court in Milwaukee L. H. & T. Co. vs. Milwaukee Northern R. Company, supra, at page 334, although apparently assuming that the company was a street railway company, (and such, I think, it is generally and popularly understood to be) said:

"The petitioner's articles state that its business, among other things, is to construct and operate street railways in the city of Milwaukee and elsewhere in the state, and to extend its lines into or through any village or town of the state. This seems to constitute a sufficient compliance with the requirement that the articles state the business of the corporation, and we, therefore, hold that the petitioner has power to extend its lines and for that purpose to condemn the property in question."

The property sought to be condemned was not "within any town adjoining the municipality from which it derived

its franchise," and as a street railway company it had no power to extend its lines into that town, much less to condemn land therefor. In order to extend its lines into the town in question and to condemn land therefor, it was necessary to invoke powers conferred upon interurban railway companies, which the supreme court seemingly held it possessed.

True, the question of whether one company might be organized for the dual purpose of operating both a street and interurban railway was not discussed in that case, but the power so to do seems to me plainly to have been assumed by the court.

It thus appears that for many years corporations have been formed for this dual purpose. The statutory provisions, in a sense, have received a practical construction, large investments have been made, and securities to the extent of millions of dollars have been issued against the property of such companies, now held by the investing public, a great proportion of which are in the hands of innocent purchasers in every sense of the word. Should the question be hereafter raised I feel that it would be resolved in favor of the validity of such organizations, if for no other reason, by force of the sentiment expressed in the Milwaukee L. H. & T. Co. case, supra, at page 333, in the following words:

"We do not think, however, that the law has been so construed, and we should hesitate to give a narrow construction to a statute which is not absolutely clear in its terms at the risk of imperiling extensive interests which have grown up under a liberal or broad construction unchallenged for years and honestly entertained. Nor do we see any necessary evils or dangers resulting from the broader construction."

In view of the foregoing consideration it is my opinion that you should not refuse to file the articles of incorporation because they provide for the operation of both a street and interurban railway company.