right to require, from time to time, the adoption by the company of such reasonable improvements as will render the streets safer and more convenient for the use of the public.83 And a grant by a municipality to an electric light company of a right to erect its poles and string wires thereon in the streets of a city which contains a reservation of the right to revoke the grant and to demand that the poles be removed and to remove the same if necessary, is a mere license which may be revoked by the municipal authorities.84 The power in a municipality to impose such a restriction in a grant exists where the city is authorized by statute to grant, under such restrictions as it may deem proper, to a person or corporation the right to erect an electrical line in its streets, over which the city is also given by statute the exclusive control. In such a case it is said that the legislature has confided an unreserved discretion in the municipality. "The unqualified right to grant or refuse at discretion carries with it the right to impose any terms on the grant not forbidden by law. The discretion of the council is not confined by the law to the mere restriction of methods of use, and therefore extends to restriction of time." 85 83 Comm., Bell Teleph. Co. V. Warwick, 185 Penn. St. 623, 40 Atl. 93. 84 Coverdale v. Edwards, 155 Ind. 374, 58 N. E. 495, 7 Am. Elec. Cas. 15. It appeared in this case that the grant was made by the city to the appellee's assignor and that subsequent to the assignment the city contracted with the appellee to furnish light for the city streets for a period of three years. The court held that the license was a personal one not assignable without the consent of the city, but that the city had ratified the assignment to the appellee by making such contract, and that the license was irrevocable during the life of the contract. At the expiration of the contract the city ordered the poles to removed and an action was begun by the assignee of the grant, charging a conspiracy in cutting down the poles and wires and injuring its business. The grant contained the following provision: "The said council hereby reserve the right to revoke this grant, and demand that the poles be removed, and remove the same if necessary," and the court said: "The language is clear, and the meaning unmistakable. The grant was a bare license, revocable without cause at the will of the council. If the licensee, at the revocation of the grant, should not remove the poles on demand, the council might cause their removal," per Baker, J. 85 Coverdale v. Edwards, 155 Ind. 374, 58 N. E. 495, 7 Am. Elec. Cas. 15, per Baker, J. § 399a. Municipality authorized by charter to grant franchise by ordinance - Mode of action.- Where a municipality is authorized by its charter to grant a franchise to an electrical corporation by ordinance, its mode of action must be in the manner prescribed and it has no power to grant a franchise to such a corporation by resolution, nor can it amend by resolution a franchise already granted by ordinance. Thus it has been so decided where a city sought to amend by resolution a franchise granted by ordinance to a telephone company, it being declared by the court that: "The charter as amended having conferred the power of granting street franchises by ordinance,' no other method was admissible." 86 But where a statute authorizing the erection of poles and wires of an electrical company in the highways provided that no poles should be erected in any street of an incorporated city or town without obtaining from such city or town a designation of the streets in which the same should be placed and the manner of placing them and there was no provision as to the manner in which such authorization should be given and an ordinance was passed providing that wires should not be suspended across any street without first obtaining permission of the township committee it was decided that a resolution was sufficient to give such permission and that an ordinance was not necessary for that purpose.87 §399b. Ordinance granting franchise introduced before or ganization of company. The fact that an ordinance granting a franchise to an electrical corporation to occupy the streets of the city with its poles and wires was introduced into the council before the company was organized does not invalidate the ordinance where no action was taken thereon when it was first introduced, and the company was in fact completely organized in accordance with the laws of the state, before the passage of the ordinance.88 And though a corporation was not legally in 86 City of Morristown V. East Tennessee Teleph. Co., 115 Fed. 304, 53 C. C. A. 132, 8 Am. Elec. Cas. 3, per Lurton, J. 87 Inhabitants of East Orange v. Suburban Elec. L. & P. Co., 59 N. J. Eq. 563, 44 Atl. 628, 7 Am. Elec. Cas. 37. 88 Chicago Teleph. Co. v. Northwestern Teleph. Co., 199 Ill. 324. 65 N. E. 329, 8 Am. Elec. Cas. 81. wherein the court said: "In support of its contention upon this branch of the case appellant refers to cases decided by this court, which hold that a corporation existence at the time of the passage of an ordinance granting a franchise to it to construct its line in the streets yet it is decided that such ordinance is not on that account invalid as, when passed by the city council, it was a mere license or offer to grant a license to the company, and only became a binding contract between the city and the company when the latter accepted it. should have a full and complete organization and existence as an entity, before it can enter into any kind of a contract or transact any business, and that a corporation assuming to be created under the incorporation act of this State can have no right to transact business when the certificate of its complete organization has not been filed for record in the recorder's office, as directed by the statute. Gent v. Insurance Co., 107 Ill. 652; Loverin v. McLaughlin, 161 Ill. 417, 44 N. E. 99. The cases thus referred to do not sustain the contention that the ordinance of August 7, 1899, was void, because it was introduced into the common council before the complete organization of appellee under the statute. A privilege granted by a city to construct a public improvement in the streets is a mere license to the corporation until the corporation accepts the grant and constructs the public improvement thereunder in accordance with the terms and conditions of the same. When the grant is accepted by the corporation, after the passage of a legal ordinance granting it, and in pursuance of the terms of such ordinance, then there is a contract between the city and such corporation. Here the introduction of the ordinance in the common council was merely in the nature of an offer or proposition, and did not become a contract until the ordinance was subsequently passed and accepted. No action was taken by the city in reference to the ordinance when it was first introduced, but it was laid over under the rules until the next meeting. Before August 7, 1899, the city had not bound itself by any contract to the appellee. The ordinance was, from July 17, 1899, until its passage on August 7, 1899, merely under consideration by the city council. In the meantime on July 24, 1899, two weeks before the ordinance was finally passed, appellee became fully and completely organized by receiving its certificate of complete organization from the secretary of state and filing the same with the recorder of deeds of Will county, where its principal office was situated. It was not until after the appellee was thus completely organized that the matter came before the city council for its final action, and then the city council by unanimous vote passed the ordinance making the grant to appellee. The city suffered no harm or injury from the fact that appellee was not completely organized when the ordinance was originally presented to the council. It is sufficient that appellee was fully organized and had a right in law to transact business, at the time of the passage of the ordinance and of its acceptance," per Magruder, J. In such a case it is declared that the most that can be said as to the validity of the ordinance because the donee of the power was not in existence at the time would be that the proceeding by the city council was premature and irregular and that the irregularity might be waived by the parties, and could not be questioned by an abutting property owner not a party to the contract.89 § 400. Extension of tracks Statute. Under a Connecticut statute, it is provided that no street railway shall extend its tracks from one town to another so as to parallel a steam railroad, unless a judicial finding shall have been applied for and obtained, declaring that public necessity and convenience require it.90 Though a street railway company may, by an amendment to its charter, be authorized to construct such an extension, yet it is held that its right is subject to the above statute unless there clearly appears in the amendment an intention to except such extension from the operation of the general act.91 In New York it has been held that a valid proceeding for the extension of a route of a street railway company can not relate back so as to validate a prior resolution of the municipal authorities consenting to the construction of the track in the street included by the extension, which was before inoperative and ineffectual because of the invalidity of a prior extension proceeding upon which it was based. 92 89 McWethy v. Aurora Elec. L. & P. Co., 202 Ill. 218, 67 N. E. 9, 8 Am. Elec. Cas. 220. See also Clarksburg Electric Light Co. v. City of Clarksburg, 47 W. Va. 739, 35 S. E. 994, 7 Am. Elec. Cas. 25, wherein the court said: "The defendant corporations raise the point against the plaintiff corporation that it had no charter existence on the day of the grant to it of the franchise in question, and that, not being in esse then, the grant did not vest, but was abortive, like the case of a grant of land to a grantee not in being. I do not think the point tenable. It was intended to operate only in the event of incorporation, and when it should take place, no delivery was necessary. Acceptance is all sufficient to put the ordinance into operation. Then it took ef fect; not till then," per Brannon, J. 90 Conn. Pub. Acts of 1893, p. 307. 91 Skelly v. Montville St. R. Co., 67 Conn. 261, 34 Atl. 1040. 92 McClean v. Westchester Electric R. Co. (Sup. Ct.), 25 Misc. (N. Y.) 383, 55 N. Y. Supp. 556. § 401. Two street railways in same street. It may be stated as a general proposition that where the control of the streets of a city is delegated by the legislature to the local authorities, they may authorize the construction of two street railways in the same street. This right, however, is subject to certain limitations. The streets are for the purposes of travel, and while a street railway is a mode of exercising that use, yet the rights of the traveling public, by means of other vehicles than the street cars, must be considered. And again, the abutting owner has rights in the street, which are to be regarded in devoting them to the more modern means of exercising the rights of user. Therefore, while a municipality having control of the streets may authorize the construction of two or more street railways therein, yet this right must be exercised with a proper regard for the rights of traveling public and of the abutting owners.93 Thus, where two tracks had already been constructed in a street for the operation of cars by electricity, and it appeared that the laying of another track with the necessary poles would both impair the plaintiff's right of access and depreciate the value of his property, an injunction was granted restraining the laying of the third track, though authorized by the city council.94 The court, referring to the plaintiff's contentions 93 Ogden City Ry. Co. v. Ogden City, 7 Utah, 207, 26 Pac. 288, 3 Am. Elec. Cas. 321, 323; Dooly Block v. Salt Lake City Rap. Trans. Co., 9 Utah, 31, 33 Pac. 229, 8 Am. R. & Corp. Rep. 327, 4 Am. Elec. Cas. 189, 196; Oakland R. Co. v. Oakland, Brooklyn & Fruit Vale R. Co., 45 Cal. 365. Judge Dillon's remarks, in reference to the use of streets by horse railways, although not given in discussing this particular point, are, we think, pertinent in this connection. He says: "The author regards the appropriation, under legislative authority, of a reasonable portion of a street for a horse railway, constructed on the graduated surface of the street, and used under municipal regulation in the ordinary mode, to be such a use as falls within the purposes for which the streets are dedicated or acquired under the power of eminent domain. When thus authorized and so regulated by the public authorities as not to destroy the ordinary and usual street uses, this is a public use within the fair scope of the intention of the proprietor when he dedicates the street or is paid for property to be used as a street. Such proprietor must be taken to contemplate all improved and more convenient modes of use which are reasonably consistent with the use of the street by ordinary vehicles and in the usual modes." 2 Dill, on Mun. Corps. (4th ed.), § 722, p. 869. 94 Dooly Block v. Salt Lake City Rap. Trans. Co., 9 Utah. 31, 33 Pac. |