30 operative. 28 A municipality, in the exercise of its police power, also has the control and regulation of the streets, and its power extends to the manner of use thereof by such companies; 29 and it may control and supervise the erection of poles for any of the above purposes; or require their removal from one street to another, where it is necessary for the public welfare.31 But where a city is only clothed with power to regulate and control the use of its streets and not to prohibit the use thereof by telegraph or telephone companies it can only act in what is a reasonable exercise of the police power in order to protect the public in its ordinary and lawful use of the streets. So where a telephone company was authorized by statute to construct and maintain its line over and along the streets and highways, provided that it should not interfere with other public uses of the said streets and highways, it was decided that power conferred upon a city to regulate or prohibit telephone or light poles in or over the streets only authorized the city in the proper exercise of its police power to protect the public from unnecessary obstructions, inconveniences and dangers and to determine where and in what manner the company might erect its poles and stretch its wires to accomplish this result.32 And in another case it is declared that this grant of power, that is, the power to regulate and control the use of streets, does not authorize a city to wholly prevent a telephone company from doing business within its limits. "Such right must be exercised in the light of reason; not with a view of prohibiting the company doing business in any given locality, but reasonably to protect the public against unnecessary obstructions, inconvenience, and 28 Hull Elec. L. Co. v. Ottawa Elec. Co., Rap. Jud. Quebec, 14 C. S. 124. 29 City of St. Louis v. Bell Teleph. Co., 96 Mo. 623, 2 Am. Elec. Cas. 46, 10 S. W. 197; Harrisburg City Pass. R. Co. v. Harrisburg (C. P. Penn., 1899), 2 Dauph. Co. Rep. 182. 30 Monongahela City v. Mononga hela E. L. Co., 12 Penn. Co. Ct. R. 529, 4 Am. Elec. Cas. 56. 31 Michigan Teleph. Co. v. Charlotte (C. C., W. D. Mich.), 93 Fed. 11. 32 Michigan Teleph. Co. v. City of Benton Harbor, 121 Mich. 512, 80 N. W. 386, 47 L. R. A. 104, 7 Am. Elec. Cas. 9, construing Mich. Acts 1883, p. 131, § 4. dangers, for the general welfare and common protection of all." " 33 § 354. Local governmental consent.- Consent to the use of city streets is generally obtained by means of an ordinance; 34 and where the streets are to be used for the supply of light or power, it is in some cases required that the ordinance shall not go into effect until it has been submitted to the voters of the municipality.35 A statutory or code provision that ordinances permitting the construction of electric light plants shall be submitted to a popular vote, includes an ordinance giving permission to erect electric light poles and wires.36 So, again, it has been made necessary by certain statutes to publish in one or more of the local newspapers notice of the fact that an application has been made for consent to the construction of a street railway in the streets of the municipality.37 And under such a provision consent has been held to be properly granted, where the necessary publication was duly made, though on the day set the application was only considered by the board of aldermen, being subsequently adopted by them, and on the following day being adopted by the board of councilmen. 38 The munici 33 State v. City of Sheboygan, 111 Wis. 23, 86 N. W. 657, 7 Am. Elec. Cas. 109, per Bardeen, J. In this case the charter of the city empowered it to enact proper ordinances and regulations for the government and good order of the city, for the benefit of trade and commerce, for the suppression of vice and the precention of crime, to prevent the incumbering of streets, to provide for the removal of obstructions therein, to regulate the manner of using streets, and to protect them from injury. 34 Brush Elec. L. Co. v. Jones Bros. Elec. L. Co., 23 Week. Law Bull. (Hamilton Co., Ohio, Com. Pl., 1890) 329, 3 Am. Elec. Cas. 516, 524. See Point Pleasant Elec. L. & P. Co. v. Borough of Bay Head, 62 N. J. Eq. 296, 49 Atl. 1108, 8 Am. Elec. Cas. 230. In New York State it is provided that for the construction of a street railway consent must be obtained in cities, of the common council: in villages, of the board of trustees; and in towns, of the town board. Wells on Railroad Corp. in the State of N. Y. (1899); Stat.. § 91. p. 222. 35 Brush Elec. L. Co. v. Jones Bros. Elec. L. Co., 23 Week. Law Bull. (Hamilton Co., Ohio, Com. Pl., 1890), 329, 3 Am. Elec. Cas 516, 524. 36 City of Keokuk v. Ft. Wayne E. L. Co., 90 Iowa, 67, 57 N. W. 689, 4 Am. Elec. Cas. 859. 37 Wells on Railroad Corp. in the State of N. Y. (1899), p. 224, § 92. 38 Re Buffalo Traction Co., 25 pal authorities may also impose conditions upon companies as to the use of the streets, and where such conditions are made as, for instance, in reference to the laying of tracks, or of restoring the roadway to a certain condition, the companies will be held to a strict compliance therewith.39 The fact that all the proceedings leading up to the adoption of an ordinance granting a street railway company the right to lay tracks in certain streets may not have been regular, cannot be complained of by the city, provided there has been no fraud and there has been a compliance with all the jurisdictional requirements, since the adoption of the ordinance operates as a waiver of any irregularities. 40 Consent of the local authorities to the construction of an electric street railway upon the streets of a city is invalid, where obtained by bribery.* 41 Where the provisions of a city charter give the common council power to establish "ordinances, rules, regulations, and by-laws," for the regulation of its streets, a consent to the use of the streets by a street railway should be by ordinance and not by the board of public works.+2 Where the construction of an electric street railway requires the use of overhead wires and poles as a necessary part of its system, such poles, when erected in pursuance to the consent of the proper local authorities, will be allowed to remain, where the act giving the local authorities power to grant such consent is not unconstitutional and there is an absence of fraud.43 Consent, however, to the placing of poles and wires upon the streets or highways will not relieve the company from any liability for damages caused by negligence in the construction of such line.44 Consent of the local authorities to the construction of a street railroad upon streets within their control will not be construed as an author App. Div. (N. Y.), 447, 49 N. Y. Supp. 1052, affd., 155 N. Y. 700, 50 N. E. 1115. 39 Loyalsock Twp. v. Montoursville Pass. Ry. Co. (C. P.), 7 Penn. Dist. R. 291. 40 Hamilton, Jones v. C. & H. Elec. St. R. Co. (C. P.), 5 Ohio N. P. 457. 41 Keough v. Pittston & S. Street R. Co. (C. P., Penn., 1899), 5 Lack. 42 West Jersey Traction Co. v. Shivers, 58 N. J. L. 124, 33 Atl. 55. 43 Commonwealth v. Westchester, 9 Penn. Co. Ct. Rep. 542, 3 Am. Elec. Cas. 326. 44 Wilson V. Great Southern Teleph. & Teleg. Co., 41 La. Ann. 1041, 6 So. 781, 3 Am. Elec. Cas. 466. ization of two separate street railroads.45 An ordinance, giving consent to an electric light company "to lay tubes, wires, conductors and insulators, and to erect lamp-posts in the streets, avenues, parks and public places in this city for the purpose of conveying, using and supplying electricity or electrical currents for purposes of illumination," has been construed as giv ing a right to erect necessary poles for the stringing of wires.46 But an ordinance, granting the right to erect electric light poles and wires in a street, will not be construed as granting such right for a private purpose.47 Under the English Telegraph Act,48 providing that any consent to the construction of telegraph or telephone lines may be given on such pecuniary or other terms or conditions as the person or body giving consent thinks fit, it is held that road authorities cannot, in giving consent to the laying of an underground telephone wire, impose the condition that the wire shall not be laid for the use of a particular company, unless such company is prepared to provide an improved service at a reduced cost, since such condition is not only outside the scope of the duties of such authorities, but unreasonable. 49 Under the New York laws,50 in Richmond county it is only necessary to obtain the consent of the commissioner of highways of a town in which it is proposed to construct a street railway.51 § 355. Local governmental consent continued.- Under a statutory provision requiring consent of the local authorities to the construction of an electric line upon streets or highways, such consent is a condition precedent; and where it has not been obtained, an abutting owner may obtain an injunction restraining the construction of such a line. The fact that other abutting owners may suffer to the same extent and that the local 45 West Jersey Tract Co. v. Cam-. den Horse R. Co., 53 N. J. Eq. 163, 35 Atl. 49. 46 People ex rel. McManus V. Thompson, 65 How. Pr. (N. Y.) 407, affd., 32 Hun, 93, 1 Am. Elec. Cas. 554. 47 Levis v. Newton, 75 Fed. 884; Andreas v. Gas & Electric Co., 61 N. J. Eq. 69, 47 Atl. 555, 7 Am. Elec. 48 Act of 1863, § 5, subd. 3. 50 Laws of 1893, chap. 434; Laws of 1890, chap. 555, § 7. 51 Gaedeke v. Staten Island M. R. Co., 43 App. Div. (N. Y.), 514, 60 N. Y. St. R. 598. authorities refuse to act in the matter will not debar him from such remedy.52. So where electric light companies are forbidden by statute to string wires in the streets of a municipality without consent of the proper local authorities, they cannot construct their lines without such consent, and they cannot evade the operation of the statute, either by a use of wires laid without license by a predecessor, or by transferring to the customers the ownership of the wires where they cross streets, or by having customers put up the wires.53 And where the Constitution of a State prohibits a telephone company from erecting its line in the streets of a city without first having obtained the consent of the municipality, such consent is a prerequisite to its right to erect such line, and it has been decided that an existing telephone company will not be liable to it for damages for preventing it by injunction from erecting its line, which was an unlawful act.54 A municipality which is limited by statute, or by its charter, as to the number of years for which it may enter into a contract, cannot grant a franchise to construct and maintain an electric line in its streets for a period in excess of such limitation.55 Where there is no express constitutional prohibition, the right to occupy streets for the construction of a street railway may be obtained from the legislature without municipal consent.5 And it is held that the Quebec legislature may authorize a private corporation to lay wires underground in the streets of a city and open the streets for that purpose without first obtaining the consent of the municipal authorities.57 Where a municipality has no general grant of power to authorize the construction of electrical lines upon its streets, but may, under 52 Thomas v. Inter-County St. Ry. Co., 167 Penn. St. 120, 31 Atl. 476, 5 Am. Elec. Cas. 175, 178; Grey v. New York & P. Tract. Co., 56 N. J. Eq. 463, 40 Atl. 21. 53 Attorney-General ex rel. Board of Gas & Elec. Light Commissioners v. Walworth E. L. & P. Co., 157 Mass. 86, 4 Am. Elec. Cas. 70, 31 N. E. 482. 54 East Tennessee Teleph. Co. v. Anderson County Teleph. Co., 115 56 Ky. 488, 74 S. W. 218, 8 Am. Elec. 163. 55 Davy v. Hyde Park, 16 Ohio C. C. 506, 8 Ohio C. D. 371, affd. on rehearing, 16 Ohio C. C. 507. 56 Potter v. Collis, 19 App. Div. (N. Y.), 392, 46 N. Y. Supp. 471. 57 Standard L. & P. Co. v. Montreal, Rapport's Judiciaries de Quebec, 10 C. S. 209. |