a general statute providing for the organization and construetion of telegraph and telephone lines, grant consent to companies incorporated thereunder, it has no power to authorize the erection of poles upon its streets by an electrical company not organized under such statute.58 Where an abutting owner endeavors to revoke a consent given to the construction of a street railway, to make such revocation effective it is held that notice thereof must be either given to the petitioning company or to the governing body of the municipality prior to the pas sage of the ordinance authorizing the construction of the railroad.59 60 61 § 355a. When municipal consent not required.— Since the power of the legislature, except so far as it may be limited by constitutional restrictions, is supreme over all streets and highways within the State, and the municipality can only exercise such power and control over the streets within its corporate limits as are delegated to it by the legislature, either expressly or by necessary implication, it would seem to follow that where an electrical corporation derives its franchise to occupy the streets of a city with its lines, directly from the legislature, and there is no express provision requiring the consent of the municipality to the erection of such line, that the consent of the municipal authorities thereto is not a prerequisite to the right of the company to occupy the streets, though it may, in the exercise of the right conferred upon it to control and regulate the use of the streets, regulate the manner of exercising the franchise as by reasonable regulations in respect to the placing of the poles and the stringing of the wires.6 62 58 State v. Mayor of Newark. 49 N. J. L. 344, 2 Am. Elec. Cas. 141, 8 Atl. 128. But see Almand v. Atlanta Consol. St. Ry. Co., 108 Ga. 417, 34 S. E. 6, as to granting consent to street railway, where no express power conferred on city to do SO. 59 State, Hutchinson v. Belmar, 61 N. J. L. 443, 39 Atl. 643, affd., 62 N. J. L. 450. Go See §§ 143, 144, herein. 62 Barhite v. Howe Teleph. Co, 50 App. Div. (N. Y.), 25, 63 N. Y. Supp. 659, 7 Am. Elec. Cas. 75. In this case the telephone company was acting under the power conferred by Transportation Corpora tions Law (Laws 1890, c. 566) which conferred upon telegraph and telephone companies the right to § 355b. Consent of council and mayor Record as evidence of.— Where it is provided by ordinance that an electrical corporation is authorized to occupy the streets of the city with its poles and wires upon first obtaining the consent of the mayor and council of said city, which may be given at any regular or special meeting of the council and shall be entered upon the minutes, the contention that no valid permission was granted is not sustained because the record does not recite that the mayor consented thereto where it is recited in the record. that he was present and presided at the meeting and that a motion granting the permission was made and adopted, it being declared that he presumably announced the adoption of the use the streets and highways for the construction and maintenance of its lines. The section of the law granting this right to telegraph and telephone companies did not require the consent of the municipality before the company acquired any right to use the streets while in other sections of the law relating to other corporations desiring to use the streets and highways such consent was required. The court held that in the case of telegraph and telephone companies such consent was clearly not required and that the right so conferred was not affected by an amendment to the charter of the city, in which the company sought to erect its line, which gave authority to the common council "to regulate and control the erection, construction, laying, stringing, maintaining and removing of all wires, cables, poles, conduits and subways upon, over and under the street, avenues, lanes, squares, parks, bridges, aqueducts and public places within said city." It was said by the court in this connection, "This provision does not relate to the right to the use of the streets. It is no infringement upon the power vested in the State legislature to grant the franchise to telephone companies. When a corporation of this kind is to avail itself of the legislative grant, the manner of its exercise, the location of its poles, the stringing of its wires, etc., are within the control and regulation of the local legisla tive body. That is one of the police functions committed to the municipality. This right of regulation is, however, entirely distinct from the original granting of the privilege. It is subordinate to that right. The local body has no authority to intervene until the corporation is seeking to exercise the privilege ac corded it by the State and then not to enjoin such exercise if within the letter of its authority, or to exact compensation for the franchise, but to protect the citizens and the public. It may intercede to reduce to a minimum this interference with the public uses, to require that the privilege shall be exercised most beneficially to all people interested, or for any other purpose involving 'control and regulation' by the local authorities. But this intervention recognizes the franchise as existing in the corporation," per Spring, J. resolution without objection, nothing in the record indicating the contrary. It was also said: "The mayor and council, when in session, constitute a single collective and deliberate body, and we think that his assent to the motion is a fair inference from the entry in the minutes.63 § 356. Local consents - Continuous electric lines - Several towns. Where the charter of an electric street railway authorizes it to construct its line between certain points, and in the construction of such line as authorized it is necessary to pass through several cities, boroughs or towns, it is necessary to obtain the consent of the local authorities of each city, borough or town through which it passes before such line can be constructed. Though the local authorities of one of the districts may have given their consent, yet, if all of the consents necessary to make the line complete cannot be obtained, the construction of the line may not be commenced within the district or districts consenting, if subsequently they object to the construction, since consent was given to the use of the streets or highways of the particular district for a continuous line and not to two or more separate and distinct lines.64 In Michigan it is held that a street railroad company, organized under the statutes of that State,65 may operate lines through several cities or towns, not being confined to one particular town or city. § 356a. Franchise for continuous line-Street railwayWhen not a continuous line.—Where a street railway company is authorized by its charter to construct and operate a continuous route over certain streets, some of which are occupied by another street railway, and cannot be used by another company, even with legislative sanction, as legislation granting it would be in violation of the State Constitution, and the later company has no right to run its cars over the tracks already 63 Nebraska Teleph. Co. v. City of Fremont (Neb. 1904), 99 N. W. 811. 64 Penn. R. Co. v. Montgomery Pass. Ry. Co., 167 Penn. St. 62, 5 Am. Elec. Cas. 166, 31 Atl. 468; Perkiomen R. Co. v. Schuylkill Valley Tract. Co. (C. P.), 14 Mont. Co. L. Rep. 22; Reading Co. v. 65 How. Ann. Stat., chap. 95, and amendatory acts. 66 Street Railways (Atty-Gen.), 5 Det. L. News, No. 50. laid, it has not a continuous route and as it cannot construct and operate the whole of its route it is decided that the construction or operation of any portion of the route would be without warrant of law.67 § 356b. Local control and consent-Line to be completed in stipulated time- Power of city to require bond.- Where power is conferred by statute upon a city to grant the use of its streets and alleys to a company or corporation for the purpose of supplying the city and inhabitants with light, upon such terms and conditions as the municipal authorities may prescribe, the municipality is clothed with legislative power and sovereignty, subject only to the limitation that the exercise of such power must be within the objects and trust for which it was conferred. The municipality may in such a case require and accept a bond of the corporation to whom it has granted such privileges, conditioned that the work shall be completed within a specified time, and where a bond is so required and given it is decided that the sum specified therein may be regarded as in the nature of liquidated damages and that the full amount may be recovered as such.68 In a recent case in Illinois it is decided that, where by ordinance granting a franchise to a street railway company it is provided that the work 67 Altoona Belt Line St. Ry. Co. v. City Passenger R. Co., 209 Pa. St. 280, 58 Atl. 477. 68 City of Salem v. Anson, 40 Oreg. 339, 67 Pac. 190, 8 Am. Elec. Cas. 44, in which it is said, "It is admitted that the legislature may, by virtue of its paramount authority, require bonds on undertakings of the grantees of such privileges, conditioned that they will construct their works within a specified time, or that they will otherwise comply with the terms of their grant, and a municipal corporation to which the exclusive power over the subject has been delegated may exercise the same right. There is no express provision in the charter of Salem au thorizing the council, upon granting opinion, therefore, that the bond in shall be completed within a certain time and that all privileges granted by the ordinance are to cease and terminate as to any portion of the streets on which lines are not in operation within such time, unless the construction is delayed by injunetion of a court of competent jurisdiction, in which case the time of such delay is not to be reckoned as a part of the time limited, the effect of such requirement cannot be avoided as to the entire line by the fact that an injunction was granted as to a part of the line unless it appears that the part covered by the injunction was connected with the rest of the line in such a way as to render it undesirable or inconvenient to build one without the other.69 66 § 356c. Franchise requiring deposit - Operation of lineForfeiture Stipulated damages. Where the franchise to an electrical company contains a provision requiring it to deposit a certain sum as a guaranty for the construction and operation of the plant, which sum shall be forfeited to the city unless the plant is in operation by a certain designated time, the sum so specified will be regarded as stipu lated damages, which the city may retain as such, without showing any special damages, in case of a default by the company. In a case where this question is considered it is declared: The municipal body, as such, suffered no damages by reason of the failure of the corporation to comply with the terms of its grant. But it was said that the contract was made by the corporate officers for and in the interest of the inhab itants. It might be added that their damages, likewise, would not be susceptible of proof, and this furnishes a strong reason for holding that the parties intended by their stipulation to treat such damages as liquidated. * This is one of that class of cases where the damages for a breach are impossible to be estimated with certainty by reference to any pecuniary standard. The recovery of damages by the city was not even postponed, to be secured by an action in the courts; but the fund was actually placed on deposit with the city, with an express stipulation that, upon a failure to comply with the requirements of the charter, it should be forfeited. It * * * * 69 Blocki v. The People ex rel. South Chicago City Ry. Co., 220 Ill, 444, 77 N. E. 172. |