railroad from Fairville, N. B., to Vanceboro, on the boundary of the State of Maine. In that year they entered into an agreement with the plaintiffs, a company incorporated in the State of New York, giving the latter the exclusive right to erect and maintain upon the land of the railroad, lines of telegraph which should be the exclusive property of the plaintiffs. The E. & N. A. Ry. Co. agreed to transport gratis employees of the plaintiffs, and materials used by the plaintiffs in erecting and maintaining their lines, and not to transport the employees and materials of any other telegraph company at less than the usual rates. The plaintiffs were to maintain one wire for the use of the railroad, and to furnish telegraphic facilities and supplies at a number of stations on the road. The plaintiffs constructed lines of telegraph, and connected them with their system in the State of Maine. In 1878 the E. & N. A. Ry. Co.'s road was sold under a decree of the Supreme Court in equity to the St. J. & M. Ry. Co., by whom it was run until 1883, when it was leased to the N. B. Ry. Co. for 999 years. Both of these companies had notice of the agreement and acted upon it. In 1888 the C. P. Ry. Co. obtained running powers from the N. B. Ry. Co. over the line, and permission to construct a line of telegraph along the railroad. To prevent the construction of the line of telegraph, as being in breach of the agreement of the E. & N. A. Ry. Co. with them, the plaintiffs obtained an exparte injunction order, which it was sought to dissolve. Held (1) that the agreement of the E. & N. A. Ry. Co. with the plaintiffs was not void as an agreement in restraint of trade, or as creating a monopoly, and being contrary to public policy; (2) That the agreement in respect to the transportation of employees was not invalid, as being within 51 Vict., chap. 29 (D), § 240, providing that no railroad company shall give or make any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic in any respect whatever; (3) That the plaintiffs, though incorporated in the State of New York, could validly contract with the E. & N. A. Ry. Co. and enforce the agreement by a suit brought in Canada; (4) that the N. B. Ry. Co., having leased the road, with notice of the agreement, and having acquiesced in it, were bound by it.80 § 194a. Railway and telegraph company-Permanent contract-Exclusive contract- Injunction-Specific performance. -A contract, with its modifications, the circumstances attending its origin, the purposes had in view, and the conduct of the parties throughout a long period of time during which these purposes have evidently been accomplished may be such as to make it sufficiently appear, that there was no intention, on the part of the contracting parties, to limit its duration or confer upon either party the right of revocation without the other's consent. If a contract is not revocable at the will of either party, or otherwise limited as to its duration, by its express terms or by the inherent nature of the contract itself, with reference to its subject-matter or its parties, it is presumably intended to be permanent and perpetual in the obligation it imposes. If the parties intend that the life of a contract should depend upon the mere will of either party without the other's consent such a limitation ought to be expressed. This rule was applied in a federal case where there was a bill for specific performance; for an injunction restraining a railroad company from violating the provisions of a certain contract; and for general relief. The contract was one between a railroad and telegraph company and provided: that the former was to furnish and set poles with cross-arms; that the latter was to furnish wire, insulators, instruments, patents and everything except the poles and cross-arms and to complete said line with one wire and put the line in operation at designated places and at other stations which the railroad company should designate and furnish instruments for, and to send free of charge during business hours all messages pertaining strictly to the business of the railroad including the ordinary family communications of its officers and agents and giving preference to emergency messages or those pertaining to accidents. The railroad company was to pay, after the line was constructed and in working order, a certain sum per mile of wire and to pass or convey free of charge over its road all men and materials 80 Western Un. Teleg. Co. v. New Brunswick Ry. Co. (1888), New Brunswick Eq. Cas. 338, affd., 17 used and employed in building and operating the telegraph line; it was also to have the right to put upon the poles and cross-arms a wire and work the same for the exclusive business of the railroad company and the ordinary family communications of its officers or agents at or from points where the telegraph company had or should have an office. The telegraph company also had a right to string another wire for its own use. Provision was also made for use of wires of either company when that of the other was down and out of order, and for repairs and renewal of wires. The railroad company was not to allow any other telegraph company or individual to build or operate a line of telegraph on or along its railroad or any part thereof. For a period of years the line was operated in conformity with the terms of the agreement and by mutual agreement the telegraph company increased the number of its wires and there were modifications by parol as to expense of construction and repairs. It was also declared that the contractual relations involved mutual covenants which were mutual considerations; and although some of them were executory in their character many of the most important stipulations had been executed by the complainant; and that the essential nature of the service was such as to indicate that permanency in contractual relation was intended by the contract under which these parties have lived for nearly half a century." It was further said that it was "not necessary, however, in the view here taken of this case to discuss the question whether a technical easement, appurtenant or in gross, has been, in effect granted by the railway company to the complainant, by the provisions of the contract of 1856, nor is it important that we should call the interest of complainant, founded on its contract with the predecessor of defendant, a license executed" although the agreement was declared by the court to be non-revocable if the complainant had a right to claim an easement in the land, or if it was considered a mere license. It was further held that the contractual relation between the parties did not embrace the elements of a partnership and that the contention could not be sustained that the relationship came within the rule applicable to partnership contracts containing no time limit and so was revocable at the will of either party, and the court was of the opinion: "That the relations created 66 between the parties by the agreement in question, were not merely personal, as in the case of partnership, agency, master and servant, and the like, but that rights in property and the user thereof, rights in the nature of an easement were conferred upon the appellant, and that no right in the appellee to revoke or determine the same, in the absence of express stipulation to that effect, is to be inferred from the silence of the contract in that respect, or from its terms, purpose or inherent nature.” Another contention was that the contract could not be specifically enforced because the clause in the contract which excluded other telegraph companies was intended to create a monopoly and was therefore illegal and void. But it was held that the clause was valid when made and although it was rendered invalid by the Act of Congress of 1866 yet it did not follow that the invalidity of this clause, which did not constitute the main consideration of the contract, struck also with invalidity the other provisions of the contract made ten years prior to the passage of the statute. The court said: "It is perfectly well settled, that where one provision in a contract, which does not constitute its main or essential feature or purpose, is void for illegality or otherwise, but is clearly separable and severable from the other parts which are relied upon, such other parts are not affected by the invalid provision, and may be enforced as if no such provision had been incorporated in the contract." In addition, upon this point the clause had never been enforced or sought to be enforced, no other telegraph company was a party to the suit. The Act of Congress of July 24, 1866, was therefore declared to have no bearing. It was further held that it was not a reason for refusing specific performance that the contract obligations were continuing; where the specific performance sought was the observance of a contract, under which both parties had lived for nearly half a century, and the` non-interference with complainant's rights, and specific performance was not the main relief sought and the injunctive process of the court would afford the efficient remedy and all that was required was that the status quo should be observed and complainant not be interfered with, injunctive relief being the principal, if not the only, relief required.81 $1 Western Union Teleg. Co. V. Pennsylvania Co., 129 Fed. 849, 64 C. C. A. 285, revg. 125, Fed. 67, cited in Western Union Teleg. Co. v. § 194b. Municipal grants-Invalid ordinances. Where a city has no legislative power to authorize the use of its streets for the erection of telephone poles and wires and cannot grant to any person or corporation the use of the streets and alleys. of a city or town for any other purpose than that for which they were dedicated, and subsequently the State constitution prohibits the use of such streets, alleys or public grounds of a city or town, without the prior consent of the proper legislative authorities, such consent is a prerequisite and if it is not obtained it has no right to occupy such streets and alleys, unless a right so to do existed by virtue of a charter antecedently granted and work had in good faith been begun thereunder. Nor was it the purpose of the constitution to render valid a resolution or ordinance of a board of councilmen granting a franchise which under the law at the time of its adoption was invalid.s2 A telephone company without proper municipal authority to erect its plant, by reason of the ordinance granting the right to erect and operate its system not being properly enacted and consequently void, cannot prevent the erection of a rival telephone plant.83 An ordinance may, however, be valid which grants a franchise to a corporation, although it is passed as an amendment to a void enactment, such later ordinance being complete in itself.84 § 194c. Unlawful municipal resolution or ordinance —Injunction - Jurisdiction federal court. A municipal ordinance not passed under legislative authority is not a law of the State within the meaning of the prohibitions of the federal constitution. But where the gravamen of a bill for injunction, Pittsburg C. C. & St. L. Ry. Co., 137 Fed 435, 437, upon the point that contracts sought to be enforced by specific performance contained illegal provisions in violation of Act of Congress Aug. 7, 1888, c. 772, 25 Stat. at L. 382, U. S. Comp. Stat. 1901, p. 3582. Compare Western Union Tel. Co. v. St. Paul M. & M. Ry. Co., 106 Fed. 243; Northwestern Tel. Co. v. Western Union. Tel. Co., 118 Fed. 497, 55 C. 82 East Tennessee Teleph. Co., etc., v. City of Russellville, 106 Ky. 667, 21 Ky. L. Rep. 305, 51 S. W. 308. 83 East Tennessee Teleph. Co. v. Anderson County Teleph. Co., 22 Ky. L. Rep. 418, 57 S. W. 457. 84 Wilder v. Aurora De K. & R. Elec. Traction Co., 216 III. 493, 75 N. E. 194. |