against a city and an electric corporation organized under State laws, is that the company is acting unlawfully under a claim of authority conferred by resolution or ordinance passed by the city, and no construction of the federal constitution is involved and the controversy depends solely upon the State laws the federal court has no jurisdiction.85 89 § 195. Municipal grants or permits - Street railways.- Independent of special charter provision, a city cannot grant the right to construct and maintain for a term of years a railway in one of its streets.86 Such grant is not within its ordinary powers.87 As has been frequently and constantly asserted, the source of street control is in the legislature, acting within constitutional limits.88 But, although the cities may not, in the exercise of their ordinary powers, confer a corporate franchise, they may permit the use of their streets for street railways or other purposes not inconsistent with street uses, in the absence of a contrary statute, although this is said to be not wholly free from doubt.90 Under the general clause in a city charter giving it power to control its streets, it may grant to a railway company the privilege of constructing and operating a line of railway such as its charter contemplates, for the operation of passenger cars by electricity, and it may also construct a spur track properly and reasonably necessary for connection with a point where the company intends to erect a power-house and car-storage shed. And, although the charter permits the carriage by the railway company of freight, the city's grant of privileges is not made void by a stipulation therein that no freight should be carried through the streets, except by the city's consent. The city may also, in such case, authorize the construction of a power-house and car-storage shed at some convenient point within the city.91 85 Mayor, etc., of City of Savannah v. Holst, 132 Fed. 901, 65 C. C. A. 449, revg. 131 Fed. 931. 86 People's R. Co. v. Memphis R. Co., 10 Wall. (U. S.) 38. 87 Eichels v. Evansville St. Ry. Co., 78 Ind. 261. 88 See chapter XI, herein, as to State, constitutional and legislative control. 89 2 Dill. on Mun. Corp. (4th ed.), p. 878, § 724. 90 Booth on Street Rys. (ed. 1892), § 15. See Elliott on Roads & Streets (ed. 1890), p. 562. 91 Powell V. Macon & Indian $196. Municipal grants or permits continued - Electric light companies. Where an ordinance grants the power to light streets, and it does not appear whether the purpose of said grant was public or private, and it would be valid in one case and void in the other, the court will construe the grant as for public purposes, and hold it valid.92 Where there is a valid grant by a city, acting under legislative authority, of a franchise for the occupation of its streets for the distribution of electric light and power, such grant is not invalid by reason of a provision therein, conferring a right incidental to the exercise of the grant, as in case of an authorization to conduct water from an artesian well at the intersection of two streets.93 It is a sufficient public use to sustain a municipal grant of a right to use streets for the operation of an electric light plant, that the light is to be supplied to citizens generally as well also as for lighting streets and public places. An electric light and power corporation may have a general and special franchise, limited, however, in the exercise thereof, within the limits of a certain city, and where it is so limited, and the exercise of any privilege to use said city streets is dependent upon a further special grant from the legislature and specified municipal action, such statutory requirement is a condition precedent to the action of the city authorities.95 94 § 197. Municipal grants or permits continued — Subways.— A city has authority to compel a subway company to permit other companies engaged in a similar business to lay wires in its subways, even though the ordinance granting the right to lay such subways under the city streets fails to reserve the right of user thereof by other companies.96 A prior case in 95 Edison Electric Illum. Co. of Baltimore v. Hooper, 85 Md. 110, 36 Atl. 113, 6 Am. Elec. Cas. 8; Acts of Md., 1890, chaps. 233, 270, § 111; art. 23 of Code of Md., § 254; art. 23 of Code (codification of sub-section 175b, § 2, c. 161, Acts of 1886), § 24, cless 11. 96 State Nat. Subway Co. v. St. Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113. the same State, however, holds that a city cannot grant to a subway company and its assigns for a period of fifty years, the space therefor, under its streets, to the practical exclusion of all other public uses, said grant being in terms a surrender, without reservation, of a city's power to regulate the underground use of streets by wire-using companies. It was also held in this case that a city cannot, without an express reservation, of supervision and control, incident to location, construction, maintenance and use, grant the use of its streets, even for public purposes, to a private corporation or individuals for public subways.97 Again, it is declared that the city of St. Louis has no power to confer upon any corporation the exclusive right to use one of its streets for its own business, and this even though said city has, by reason of its constitutional charter, the fee of its streets, subject only to certain public uses. 98 In so far, therefore, as these two last-mentioned cases conflict with the later decision, they are overruled. 1 § 197a. Rapid transit law of New York-Electricity as motive power. The rapid transit act of New York granting certain rights, privileges and franchises and providing for rapid transit railways in cities of over one million inhabitants 99 is constitutional as to abutting owners. Nor is it unconstitutional in that it refers to a municipality the question whether it desires a statute affecting it especially to be enacted. It is not a local bill and provides for a munic ipal purpose; nor does it violate a constitutional prohibition against cities loaning money on credit in aid of individuals, associations or corporations; nor is it open to a constitutional objection in that it authorizes the incurring by the rapid transit commissioners of a possible indebtedness exceeding the municipal limit of indebtedness; nor is it obnoxious to the consti 97 State, St. Louis Underground Service Co. v. Murphy, 134 Mo. 548, 34 S. W. 51, 34 L. R. A. 369, 6 Am. Elec. Cas. 77, affd. in banc 35 S. W. 1132. 98 Grand Ave. Ry. Co. v. People's Ry. Co., 132 Mo. 34. 33 S. W. 472, 12 Am. Ry. & Corp. Rep. 594, 6 Am. Elec. Cas. 99, 103, per Bur- 993 Cumming & Gilbert's Genl. Stat. and Laws N. Y., pp. 3208 et seq., 4 id., pp. 1282 et seq. See note 31 to 183b, herein. 1 March v. City of New York, 74 N. Y. Supp. 630, 1151, 69 App. Div. 1. tutional guaranty that private property shall not be taken for public use without just compensation, even though the taking precedes the payment; nor are municipal or other governmental corporations included within the constitutional prohibition as to private and local bills granting rights to individuals, etc., to construct railroad tracks.2 And where the statutes and contract provided that the construction of a rapid transit railroad should be paid for by the city of New York and the rapid transit commissioners were authorized to change plans at the city's cost and it was determined that electricity should be used as motive power, which had not been decided upon when the contract was originally made, additional excavations and additional cost of construction thereby necessitated are collectible from the city.3 § 197b. Rapid transit law of New York-Conditional approval of routes. In a case decided by the Supreme Court of New York, appellate division, in July, 1906, it appeared upon the record that the city of New York had not then the financial ability to undertake the building of all the routes proposed or on which favorable reports had been made and on which confirmation by the court was sought, and under the constitution of the State the total borrowing power of the city was between one-seventh and one-eighth of the total amount required for cost of construction, and it was held, in view of these facts and in view of the difficulty of obtaining private capital to any large amount and the effect that confirmation would have upon the property involved, all the routes would be approved conditionally, upon the rapid transit commissioners deciding within two years which of them they would finally conclude to construct. "This will enable them, within the period named, in view of the then existing condition of the city's finances, to determine just what routes should be built; and after that time they should be required, if able to construct other routes, to renew their application to this court. This will render null and void our approval of all routes not selected and contracted for within two years.' 2 Sun Printing & P. Assoc. v. New York. 40 N. Y. Supp. 607, 8 App. Div. 230, affd., 152 N. Y. 257. 3 McDonald, in re, 80 N. Y. Supp. 536, 80 App. Div. 210, affd., 175 N. Y. 470. 4 Board of Rapid Transit Commers of City of New York, In re,, § 197c. Delegation of power to cities and villages in New York.- Express legislation in clear and unqualified language is necessary to a delegation of power to cities and villages in regard to the construction, management and control of telegraph and telephone and electric companies, such a surrender of sovereignty cannot be implied, and in New York the Village Law 5 does not confer authority to erect telegraph and telephone and electric light poles and string wires, such right is conferred by the State Transportation Corporations Law and not by village authorities, who have the power only to regulate the erection of such poles or the stringing of wires; that is the location of the poles and the streets to be occupied are within the reasonable power of the village to regulate. 6 § 197d. Municipal grant-Obstruction of navigable stream. -In a navigable stream the right of the public is paramount, and the owner of the soil under the bed can only use it so far as consistent with the public right; and a municipality, through which a navigable stream flows, cannot grant a right to ob struct the navigation thereof nor bind itself to permit the continuance of an obstruction, and this rule is not affected by the fact that the person claiming the right to continue such an obstruction is the owner in fee of the bed of the stream. S § 198. Corporate powers-Generally. Public policy is the basis of the prohibition by law of acts which are unauthorized by the charter of a company, but there are numerous cases which uphold contracts, even when made in violation of a provision contained in the charter, and which involve an unauthorized exercise of corporate powers. Especially is this true where it appears that the provision so contravened was not intended by the legislature to operate as an imperative prohibition of the contract violating such charter provision; or where the charter provision was intended for the benefit of the cor 100 N. Y. Supp. 611. See note 31 to 183b, herein. 5 Laws 1897, c. 414, § 89, subd. 9. 6 Laws 1890, c. 566, art. 8, § 102. 7 Village of Carthage v. Central New York Teleph. & Teleg. Co., 185 N. Y. 448, 78 N. E. 165, revg. 96 N. 8 West Chicago St. Rd. Co. v. People ex rel. City of Chicago, 201 U. S. 506, 26 Sup. Ct. 518, 50 L. ed.affg., 214 Ill. 9, 73 N. E. 393, four justices dissenting. |