* * * Such These their sacrifice for the general comfort and convenience. legislation does not infringe upon the power of Congress to regulate commerce, or upon the exemption of the agencies of the General Government from State control. agencies are exempt from State control by police regulation, or by the exercise of the taxing power, so far only as that legislation may interfere with or impair their efficiency in performing the functions by which they are designed to serve the Government." 16 § 424. Same subject-American Rapid Telegraph Company v. Hess. In 1891 an action was again brought by one of the electrical companies in New York city for the purpose of testing the constitutionality of these statutes. The ground upon which the claims of the plaintiffs were based differed from those raised in the preceding cases in one respect. In this case it was claimed that the company incorporated under the Laws of 1848,17 which was a general act for the incorporation and regulation of telegraph companies and the acts amendatory thereto, had conferred upon it a right operating as a grant or franchise to use the streets for its poles and wires, and that this grant constituted a contract within the protection of the Federal Consitution, and, therefore, that neither its poles nor wires could be removed by either the city or State except as prescribed by the Constitution, providing that private property shall not be taken for public use except upon making compensation. It was held, however, that the company obtained merely an authority or license to enter upon the streets and erect its poles and wires, and that the State did not abdicate any of its power over the streets, or relinquish any of its rights to supervise and control the use of the streets in the exercise of its power for the welfare of the public. The court declared that by virtue of the police power which the State possessed over streets and highways, the legislature could lawfully pass such acts requiring removal of poles, and conferring power to remove if the companies did not comply with the statute, and that the removal of the poles and wires from the streets was 16 Western Un. Teleg. Co. V. Mayor of City of New York, 38 Fed. 552, 2 Am. Elec. Cas. 195, 205, 206, 207, per Wallace, J. 17 Laws of 1848, chap. 265. not a taking of private property, but that the poles and wires. having become a nuisance, the municipal authorities were empowered to remove them the same as any other incumbrance. As to these acts, it was held that there was no interference with the Post Roads Act of Congress, since it was perfectly feasible for the company to avail itself of the privileges conferred by such act, by using the subways, and that this act did not operate to deprive the State of the control and regulation of streets and highways under the police power for the public welfare. It was also declared that the legislature had undoubted power to ratify and confirm the contract entered into between the board of electrical control and the defendants in the present action, The Consolidated Telegraph & Electrical Subway Company.18 Thus, again, were these acts declared to be constitutional. 19 $425. Subways Acts - General propositions in reference to.It will be seen from the preceding sections that the constitutionality of the New York Subways Acts has been tested upon almost every conceivable ground, but in all the cases the courts have held them to be constitutional, as being a valid exercise of the police power of the State. From the cases which have arisen under these acts the following general propositions of law may be deduced: 1. The legislature of a State may, in the exercise of its police power, require electrical wires to be placed underground. 2. The municipal authorities may, under a proper delegation of power, require electrical wires to be placed underground. 3. Such acts may be made to affect not only companies subsequently organized, but those already maintaining poles and wires upon the streets. 4. Acts of this nature do not deprive companies formed under the Post Roads Act of Congress of any of the rights or privileges conferred upon such companies by that act. 5. Acts of this nature do not conflict with the powers of Congress in reference to post roads. 6. Acts of this nature are not in conflict with the paramount right of the National Government to control and regulate inter 18 Laws of 1887, chap. 716. 19 American Rapid Teleg. Co. v. Hess, 125 N. Y. 641, 36 N. Y. St. R. 252, 21 Am. St. R. 764, 26 N. E. 919, 39 Am. & Eng. Corp. Cas. 526, 3 Am. Elec. Cas. 142, affg. 58 Hun (N. Y.), 610, 35 N. Y. St. R. 606, 12 N. Y. Supp. 536. state commerce. 7. The removal of poles and wires from the streets by the municipal authorities, in pursuance of an act requiring them to remove them, if not removed by the companies within a certain time, is not a taking of private property without compensation. 8. Nor is such removal a taking of property without due process of law, and in violation of the Fourteenth Amendment to the Federal Constitution. 9. The electrical companies may be required to pay the salaries of subway commissioners, and this is not a taking of property without due process of law, and in violation of the Fourteenth Amendment. 10. Acts classifying the cities, as in the New York Subways Acts, are not local or private laws, although they may be applicable to only one city. 11. Acts of this nature are a proper exercise of the police power.20 § 425a. City cannot act arbitrarily - Minnesota case. In a case in Minnesota the power of a municipality to require the placing of electrical wires in conduits is considered where a city was authorized by its charter "To regulate and control or prohibit the placing of poles and the suspending of electric and other wires along or across the streets of said city, and to require any or all already placed or suspended, either in limited districts, or throughout the entire city, to be removed or to be placed in such manner as it may designate, beneath the surface of the street or sidewalk," The court considered the 20 New York Elec. Lines V. Squire, 107 N. Y. 593, 12 N. Y. St. R. 832, 14 N. E. 820, 28 Week. Dig. 175, 2 Am. Elec. Cas. 176, affd., 145 U. S. 175, 12 St. Ct. 880, 4 Am. Elec Cas. 122; American Rap. Teleg. Co. v. Hess, 125 N. Y. 641, 36 N. Y. St. R. 252, 21 Am. St. Rep. 764, 26 N. E. 919, 39 Am. & Eng. Corp. Cas. 526, 3 Am. Elec. Cas. 142, affg. 58 Hun (N. Y.), 610, 35 N. Y. St. R. 606, 12 N. Y. Supp. 536; Western Un. Teleg. Co. v. Mayor of City of New York, 38 Fed. 552, 2 Am. Elec. Cas. 195; United States Illum. Co. v. Hess, 19 N. Y. St. R. 883, 3 N. Y. Supp. 777, 2 Am. Elec. Cas. 187; United States Illum. Co. v. Grant, 55 Hun (N. Y.), 222, 27 N. Y. St. R. 767, 7 N. Y. Supp. 788, 3 Am. Elec. Cas, 95; East River Elec. Light Co. v. Grant, 57 N. Y. Super. Ct. 553, 9 N. Y. Supp. 317, 3 Am. Elec. Cas. 127; Postal Teleg. Cable Co. v. Grant, 33 N. Y. St. R. 997, 11 N. Y. Supp. 323; Clausen & Sons Brewing Co. v. Balt. & Ohio Teleg. Co. (N. Y. Sup. Ct., Chambers, July, 1884), 2 Am. Elec. Cas. 210; Brush Elec. Illum. Co. v. Consolidated Teleg. & Elec. Subway Co., 60 Hun (N. Y.), 446, 39 N. Y. St. R. 538, 15 N. Y. Supp. 477, 3 Am. Elec. Cas. 150. question of the extent of the power conferred upon the municipality by such provision and declared that it should be construed with reference to a statute which provided that a telegraph or telephone company was authorized to use the public roads and highways of the State for the purpose of erecting poles to sustain their wires or other fixtures, provided that the same should be so located as not to interfere with the safety or convenience of ordinary travel on or over such roads or highways.21 This statute the court construed as conferring upon the telephone company which had acted under its provisions the right to use the streets of a city under proper regulations and restrictions by the municipality, and declared that any ordinance of a city which interfered with or impaired the vested right thus conferred upon such company by the State violated constitutional rights and was invalid. The court then proceeded to consider the extent of the authority conferred upon the city by the charter provision and determined that it did not give the city power to arbitrarily require the removal of poles and wires which had been placed in the streets under proper authority, as this would be the imposing of such a burden upon the company as would impair its legal contract rights. It was, however, decided that, where the existence of poles and wires in the city streets was injurious to public safety, convenience or utility, the city had the authority, under such a provision, to require the removal of such poles and wires, and that the wires be placed in conduits.22 21 Minn. Gen. St. 1894, § 2641. 22 Northwestern Teleph. Exch. Co. v. City of Minneapolis, 81 Minn. 140, 83 N. W. 527, 86 N. W. 69, 7 Am. Elec. Cas. 179. The court in construing the provision of the charter referred to said: "This provision does not declare that the power therein conferred is exclusive in the city, nor that the right to remove poles and wires in the streets is to be exercised by the city arbitrarily. If the general statute (Section 2641, Gen. St. 1894) is controlling, as we have held above, this provision should be con § 426. Subways - Missouri cases. It has been declared by the Missouri Supreme Court that the city of St. Louis has, under the general power conferred by its charter, to control and regulate the use of streets, power to require as a police regulation, that all electrical wires used for the benefit of the public, shall be laid underground.23 This right was declared by the court in a case where the city had granted to a corporation the privilege of constructing and maintaining subways in its streets for a period of fifty years. In this case, however, it was held that the grant was illegal, since it operated to confer a franchise for the use of streets for private purposes, and delegated the control over such subways to the corporation, and to this extent the city divested itself of the control and regulation of the streets, conferred upon it by its charter, and which it alone could exercise.24 It was, however, subsequently held in the ness. municipality, and secures all that is essential to a proper and reasonable control of the plaintiff's busiThe plaintiff has the right to use its streets in the way prescribed, but such right is subject to regulation; and if the use of any street for overhead wires, or any other placement of its lines, is injurious to public safety, convenience, comfort, or utility in the management of city affairs, or inconsistent with reason, order, and good government, the city has the power under the law and its charter provisions to compel a removal of such poles and wires from its streets, and compel them to be placed in sub-surface conduits, or to otherwise regulate the business of the company so that the use of its streets shall not interfere with the rights of its citizens, but subserve their welfare, in the inestimable service which the telephone renders to commerce, civilization, and the happiness of its people. This case comes here upon statements in the complaint as to what the city is attempting to do that 23 State ex rel. St. Louis Underground Service Co. v. Murphy (Mo. Sup. Ct., 1895), 6 Am. Elec. Cas. 64, 77 (1896); id. 134 Mo. 548, 34 S. W. 51, 34 L. R. A. 369, affd., in banc, 35 S. W. 1132; State ex rel. Laclede Gas Light Co. v. Murphy (1895), 130 Mo. 10, 5 Am. Elec. Cas. 71. Appealed to 170 U. S. 78, 18 Sup. Ct. Repr. 505. 24 State ex rel. St. Louis Underground Service Co. v. Murphy (Mo. Sup. Ct., 1895), 6 Am. Elec. Cas. 64 (1896); id., 134 Mo. 548, 34 S. W. 51, 34 L. R. A. 369 affd., in banc, 35 S. W. 1132, 6 Am. Elec. Cas. 77. In this case it does not appear that there was any statute |