authorizes the mayor to approve the whole or any item or part of any ordinance, resolution, order, or contract presented for his signature, and by virtue of such power he may also veto modifications of the provisions in an ordinance or contract.13 § 221a. Enactment of municipal ordinances - Decisions continued. Mandatory provisions of a statute as to the time. during which an ordinance shall lie over before being passed must be complied with, and this applies to an ordinance granting the privilege of operating a telephone system in a town.** And an ordinance regulating the affairs of a telephone company is void where it is not passed in accordance with the terms of the charter of the city. Thus where the charter requires that an ordinance, when put on its final passage, shall be the same in substance as that introduced at a previous meeting of the city council; a proviso that the city council may by a two-thirds. vote put an ordinance upon its final passage at the same meeting at which it was introduced (or materially amended) is not complied with by the mere passage of such ordinance by a twothirds vote. 45 Again, a resolution must be adopted as required by law in the case of provisional municipalities in order to bind the city by contract and this includes, where so required, the submission after adoption to the mayor for his approval or rejection. It is not sufficient in such case that the mayor as president of the board is present and approves the minutes, giving assent to the resolution.46 So upon an application to construct a street railway the proper city authorities may grant the permit without consideration in joint session, although the municipal charter may require a joint session as to certain matters, but requirements as to the mayor's signature or rejection must be complied with. In an Iowa case where five of the six councilmen and the mayor were present, and the record showed that on an aye and nay call there were five votes for 43 Sanfleet v. Toledo, 10 Ohio C. C. 460; Ohio Rev. Stat., § 1667. 44 East Tennessee Teleph. Co. v. Anderson County Teleph. Co., 22 Ky. L. Rep. 418, 57 S. W. 457. 45 South Jersey Telegraph Co. v. City of Woodbury (N. J. 1906), 63 Atl. 4. 46 City of Pensacola v. Southern Bell Teleph. Co. (Fla.), 37 So. 820. 47 Kittinger v. Buffalo Traction Co., 49 N. Y. Supp. 713, 25 App. Div. 329, affd. 160 N. Y. 347, 54 N. E. 1081; Laws 1891, c. 105, §§ 33, 374, charter of Buffalo. 49 the passage of an ordinance and none against, it was held that the omission of the record to state the name of each member with his vote was not fatal to the adoption of the ordinance 48 and prima facie it will be presumed that in the matter of a city's governmental acts its officials were acting within the scope of their powers. Nor is an ordinance granting a franchise, void because it was presented to the common council several days before the certificate of organization of a telephone corporation was filed in the recorder's office as required by statute, the ordinance having been presented to the city council after the company had been licensed by the secretary of state to incorporate.50 The most that could be said in a case of such a character would be that the proceeding of the city council was premature and irregular, but the parties could waive the irregularity and it could not be questioned by an abutting property holder not a party to the contract.51 If, however, ordinances concerning the sale and ratification of sale of an exclusive telephone franchise are passed at the meeting at which introduced contrary to the provisions of a statute requiring the lapse of a certain number of days between the introduction of ordinances and the granting of franchises, such grants by ordinance will have no validity.5 52 § 222. Duty of municipality-Designation of streetsTelegraph and telephone lines. In New Jersey the statutory duty of a municipality to designate streets and highways on which a telegraph or telephone line may be constructed, does not arise as to local systems of lines wholly within a city, but the legal duty exists only where the construction of such lines is through the municipality.53 48 State v. Nebraska Teleph. Co., 127 Iowa, 194, 195, 103 N. W. 120. 49 Connor v. City of Marshfield (Wis. 1906), 107 N. W. 640. 50 Chicago Teleph. Co. v. Northwestern Teleph. Co., 199 Ill. 324, 65 N. E. 329, 8 Am. Elec. Cas. 81, affg. 100 Ill. App. 57. 51 McWethy v. Aurora Elect. L. & P. Co., 202 Ill. 218, 67 N. E. 9, affg. 104 Ill. App. 479. 52 Maraman v. Ohio Valley Teleph. Co., 25 Ky. L. Rep. 784, 76 S. W. 398. 53 State, Home Teleph. Co. V. New Brunswick (Sup. N. J.), 62 N. J. L. 172, 40 Atl. 628, N. J. Act, April 27, 1888. See New York & New Jersey Tel. Co. v. Borough of Bound Brook, 66 N. J. L. 168, 48 Atl. 1022. A recent statute of North Dakota And § 222a. Municipal powers-Telegraph and telephone corporations. If legislative action by the city is made a prerequsite by the State Constitution to obtaining the use of city streets such action must be obtained or no right thereto can be acquired. 54 The regulating power of a city may also be exercised in such a manner, with relation to the use of its streets by a telephone company, that compensation shall be paid for such right and the value of the contract or franchise be arrived at by competitive bidding.55 So a municipality has the right to agree with foreign corporations as to the consideration to be given by way of compensation, for such street uses for poles and wires where the statute does not deny to such corporations the right to erect such poles and lines.56 a telephone corporation's right to erect poles in any city street is not impaired by an ordinance providing for an application to the common council for location of its poles, and that it may designate the same or delegate its power so to do to the street commissioners or city engineer.57 And township road commissioners may make regulations requiring telegraph lines to be located along property lines, and in such a way that the necessary parts of poles shall be within the highway, although next to such property lines, and such commissioners may, where changed conditions so require, make and enforce such new regulations as are expedient and necessary.58 Again, the fact that additional burdens may be imposed upon the fee of city streets by the grant of the use thereof to corporations using electricity will not affect the validity of an ordinance making such grant,59 although an abutting property owner provides for the granting of the right of way by municipal corporations for telephone lines on and over public grounds, streets, alleys and highways, subject to such regulations as municipal authorities may impose as to what grounds, streets, alleys or highways said line shall run upon, over or across, location of poles, etc. Laws No. Dak., 1899, p. 227. 54 East Tennessee Teleph. Co. v. Anderson County Teleph. Co., 24 Ky. L. Rep. 2358, 74 S. W. 218. 55 Plattsburg, City of, v. People, Tel. Co., 88 Mo. App. 306. 56 Plattsburg, City of, v. People, Tel. Co., 88 Mo. App. 306. 57 New Castle, City of, v. Central Dist. & Printing Teleg. Co., 207 Pa. 371, 56 Atl. 931. 58 American Teleg. & Teleph. Co. v. Harborcreek, 23 Pa. Super. Ct. 437. 59 Patten v. City of Chattanooga, 108 Tenn. 197, 65 S. W. 414. See 60 cannot be deprived of substantial rights by the city council's grant to a telephone company." Public interests should also be subserved by a strict construction of an ordinance where susceptible of different meanings and the ordinance interferes with the city's authority over its streets by the grant of exceptional privileges.61 State laws giving certain powers to cities relating to their government and to the control of their streets. against obstructions by telephone companies will not control or modify a statute empowering such companies to construct lines along any public road where the constitution provides for the construction of such lines within the State and for proper action by the legislature to give effect thereto.62 § 223. Fire alarm - Fire and police telegraph system.Under the New York Laws of 1882 the public authorities possessed ample power to compel a lessee of a building to provide a fire alarm system, so that the owner of fire alarm boxes, left in a theater, did not thereby so far discharge in the public interest an obligation of the law imposed on such lessee, as to warrant a recovery for their use on that ground alone, there being no agreement with the lessee to pay for their use.63 If a city is indebted beyond its constitutional limits, and enters into a contract with a party who has knowledge of said fact, to install for the city's use a fire and police telegraph system, the city to furnish the right of way, station room, and use of certain poles, and said system is installed, and the State courts have held the contract void, and refused to render judgment for the contract price, there can be no recovery, in an equity suit in the Federal court, of the rental, for said contract creates no express or implied liability against the city, nor is there any equitable right in the contractor to possession of the city's property, which formed part of the system as an also Linden Land Co. v. Milwaukee Elect. Ry. & Lighting Co., 107 Wis. 493, 83 N. W. 851. See §§ 295 et seq. herein. 60 Mantell v. Bucyrus Tel. Co., 20 Ohio Civ. R. 345; Rev. Stat. 3461. See §§ 295 et seq. herein. 61 Baltimore, City of, v. Chesa peake & P. Tel. Co., 92 Md. 692, 48 Atl. 465. 62 State v. City of Red Lodge, 30 Mont. 338, 76 Pac. 758. 63 Manhattan Firm Alarm Co. v. Weber (Sup. Ct., App. Term, 1899), 22 Misc. Rep. (N. Y.) 729, 50 N. Y. Supp. 42; N. Y. Laws, 1882, c. 410, § 465. entirety, even though the bill for relief alleged that said plant was in operation, and that its parts could not be separated without irreparable injury.64 67 § 224. Municipal powers-Streets and street railwaysNotice Consent.- Ultra vires contracts of municipal corporations may be validated by the legislature.65 In Ohio a municipality may grant a street railway company the right to lay tracks in its streets without adopting a distinct resolution establishing a route before passing an ordinance granting such permission to lay tracks; nor, under the statute, is it necessary to give notice of intention to establish said route.66 Again, in that State, the power conferred by the statute upon cities, to authorize the extension of street railway lines over State and county roads, only empowers the grant of such right, subject to the obligation of making an agreement with the county commissioner, or of instituting condemnation proceedings. In New Jersey an ordinance granting, upon public notice, a consent to locate a street railway for a certain term of years, may be supplemented by another ordinance without notice, eliminating said limitation as to duration of the grant.68 In Wisconsin it is held that where conditions imposed by an ordinance granting a street railway franchise are being performed by the company, the objection that it was passed without compliance with the statutory and city charter requirements as to publication of notice and reference to a committee can only be raised by the State and not by a property owner, where the construction of the road is sought to be restrained.69 The statutory right of the mayor and council of a borough in New Jersey to continue in office until an annual election, enables 64 Gamewell Fire Alarm Teleg. Co. v. City of La Porte (U. S. C. C., Ind., 1899), 96 Fed. 664. 65 Mill Creek Valley Street R. Co. v. Carthage, 18 Ohio C. C. 216. See Steele Co. v. Erskine (U. S. C. C. A., No. Dak., 1899), 98 Fed. 215. 66 So held in Hamilton, Jones v. C. & H. Elec. St. R. Co. (C. P.), Ohio N. P. 457. 67 Citizens' Elec. R., L. & P. Co. v. County Commissioners, 56 Ohio St. 1, 37 Ohio L. Jour. 165, 46 N. 68 State, Moore v. West Jersey Tract. Co., 62 N. J. L. 386, 41 Atl. 946, affg. 61 N. J. L. 470, 39 Atl. 681, 10 Am. & Eng. R. Cas. (N. S.) 323; 3 N. J. Gen. Stat., p. 3287, § 126. 69 Linden Land Co. v. Milwaukee Elect. Ry. & Lighting Co., 107 Wis. 493, 83 N. W. 851. See §§ 221, 221a, herein. |