Aston

On Motion for Rehearing.

The motion for rehearing raises and argues the question whether application of the issue of any stock or bonds issued by the railroad company, or the proceeds of any stock issued or bond sales made, may lawfully be used to pay the judgment affirmed by this court. As the question of a way of paying the judgment was not directly involved in the case, the point was not considered for decision, and we express no opinion on it now.

Counsel say that we have put a mistaken construction upon a portion of Mr. Huston’s evidence before the District Court. But if we accept it that Mr. Huston did not mean that it had been his opinion that the corporation had the implied power to make such a contract as was involved, it does not affect the material question presented for decision.

The motion is denied.

(after stating the facts as above). The question for decision is whether or not the contract sued upon in the first cause of action is made invalid and unenforceable by the Public Utilities Act of the state. It goes without saying that such a contract is in itself not against public policy. A railroad company might well be expected to employ an engineer to gather information and data and to embody the result of his investigations in a report to be used in enlisting capital for the carrying out of the enterprise. When the contract was made, the parties to it evidently believfed that it was not against the statute of the state. Mr. Huston, counsel for the corporation, testi *702 fied before the District Court that it was his opinion that the power to make such a contract was implied in the order of the commission of August 13, 1912.

It was not unreasonable to construe the order of August 13th prohibiting the creation of liability and payment of money “except for the commissions as aforesaid” until the sale of stock reached $750,000 as referring solely to prohibiting construction contracts. The purpose of employing Aston was evidently to gather data sufficient to enable the newly…