TITLE IV. STATE CONSTITUTIONAL AND LEGISLATIVE CONTROL-LOCAL GOVERNMENTAL POWERS. CHAPTER XI. CONSTITUTIONAL AND LEGISLATIVE POWERS, GENERALLY. § 141. Constitutional and legisla- § 147. Same subjecttive powers - Generally. 141a. Necessity of compliance with constitutional re- 142. Delegation of legislative powers-Eminent main. do Street uses above and beneath surface. 147a. Delegation Courts. of power 148. City streets dedicated to public uses and held in trust. 149. Extent of powers conferred on municipal agencies. 150. Extent of powers conferred on municipal agencies § 141. Constitutional and legislative powers- Generally.— There are certain fundamental principles controlling the application of the doctrines to which the electrical law is absolutely and necessarily subject. The people of the United States and of the States have agreed to constitutions as a basis of government, and for the security, among other essentials, of their rights, property and common welfare. The people have not, however, committed to the United States Government "their own complete functions of legislation and administration," but have intrusted a portion to the separate States, "so that the rights of the individual shall be guarded from the encroachments of power." It is a general rule, that in so far as laws passed by Congress are constitutional and are enacted to carry out the powers vested in the Government of the United States, the States are not empowered to retard, burden or control the operations of such constitutional laws. It is also true that a constitutional act of Congress is the supreme law of the land, and any State legislation in conflict therewith is 1 1 Pomeroy's Const. Law (3d ed.), p. 142, § 226; McRoan v. Devries, 3 Barb. (N. Y.) 198; State v. McCann, 4 Lea (Tenn.), 9. 4 2 McCulloch V. Maryland, Wheat. (17 U. S.) 317, 4 L. Ed. 579, cited and quoted from on this point in United States v. Rickert, 188 U. S. 438, 439, 23 Sup. Ct. 480, 481, 47 L. Ed. 536, 537, cited also in South Carolina v. United States, 199 U. S. 437, 452, 26 Sup. Ct. 110, 50 L. Ed. 261, where Mr. Justice Brewer says: "The two govern ments, national and State, are each to exercise their power so as not void. So, Mr. Chief Justice Waite, in a case decided in 1877, says: "The Government of the United States, within the scope of its powers, operates upon every foot of territory under its jurisdiction. It legislates for the whole nation, and is not embarrassed by State lines. Its peculiar duty is to protect one part of the country from encroachments by another, upon the national rights which belong to all."4 But powers granted to Congress do not exclude those which are similar, existing in the States, except where the Constitution has expressly given exclusive powers to Congress, or where the States are prohibited the exercise of powers, or there is a direct repugnancy in the exercise thereof by the States. Again, Mr. Justice Peckham, in discussing the interstate commerce provisions of the Federal Constitution, in connection with a telegraph penalty statute, declares that "The matters upon which the silence of Congress is equivalent to affirmative legislation are national in their character, and such as to fairly require uniformity of regulation upon the subject involved, affecting all the States alike." 6 It may, however, be generally stated, that in so far as any provision of a State Constitution conflicts with the United States Constitution it is invalid, although a 3 Pensacola Teleg. Co. v. Western Un. Teleg. Co., 96 U. S. 1, 24 L. Ed. 708, 1 Am. Elec. Cas. 253. (See S. C. 2 Woods 643, Fed. Cas. No. 10960.) "The Constitution of the United States and the laws made in pursuance thereof are the supreme law of the land. (Const. U. S., art. 6, par. 2.) A law of Congress made in pursuance of the Constitution suspends or overrides all State statutes with which it is in conflict." Id., per Mr. Chief Justice Waite; Sinot v. Davenport, 22 How. (U. S.) 227. It is held that all the legislative power of the people of the State of New York is embodied in the Constitution of 1777 of that State, it having been adopted before the United States Constitution. Sage v. New York, 154 N. Y. 61, 47 N. E. 1906, affg. 10 N. Y. App. Div. 294, 41 N. Y. 4 Pensacola Teleg. Co. v. Western Un. Teleg. Co., 96 U. S. 1, 24 L. Ed. 708, 1 Am. Elec. Cas. 255, a case where a State statute in conflict with the Post Roads Act of Congress was held inoperative, as giving an exclusive right to maintain telegraph lines within a certain portion of the State. 5 Houston v. Moore, 5 Wheat. (U. S.) 49. 6 Western Un. Teleg. Co. V. James, 162 U. S. 650, 6 Am. Elec. Cas. 863, 40 L. Ed. 1105, 16 Sup. Ct. 934. 7 New Orleans Gas Light Co. v. Louisiana, Light & H. P. & M. Co., 115 U. S. 672, 6 Sup. Ct. 252, 8 State Constitution is, within the State limits, fundamental law and restrictive in its powers, and the legislative power of a State is only restricted by the Constituion of the United States and of the State. This is illustrated by the rule, that if the rights and powers of the National Government are not interfered with, each State may tax all property, real and personal, within its borders, belonging to persons or corporations, 10 § 141a. Necessity of compliance with Constitutional requirements. Another consideration involved is the State Constitution and where a constitutional provision authorizes the construction and maintenance of telegraph and telephone lines within the State and to connect the same with other lines, and further provides that the General Assembly shall by general law of uniform operation provide reasonable regulations to give full effect to said provisions the Constitution is not selfexecuting. The legislature may, however, refuse or fail to act, in which case the right granted would be dormant, for legislative action is necessary to make the right granted effective, but there is no power which can compel the legislature to act or coerce it into passing any particular law, but if there is legislative action the law passed must meet the constitutional requirements as to uniform operation and reasonable regulation; that is, State legislative enactments must comply with constitutional requirements where the command of the latter is to pass general laws of uniform operation with reasonable provisions so as to give access to business centers such as cities and towns; and after the legislature has complied with the commands of the Constitution by such legislation as is therein contemplated it has authority to empower cities and towns to make such reasonable rules and regulations as may be deemed necessary. If, however, a statute fails to meet the require Dodge v. Woolsey, 18 How. (U. S.) 331. 8 Varney v. Justice, 86 Ky. 596, 6 S. W. 457. Henley v. State, 98 Tenn. 665, 41 S. W. 352, 1104, 39 L. R. A. 126. See Concord R. Co. v. Greeley, 17 N. H. 47; Cooley's Const. Lim. (6th ed.) 87; Cochran v. Van Surlay, 20 Wend. (N. Y.) 144. 10 Western Un. Teleg. Co. v. Taggart, 163 U. S. 1, 6 Am. Elec. Cas 622, 41 L. Ed. 49, 16 Sup. Ct. 1054, per Mr. Justice Gray. 11 ments of the Constitution it will be invalid. Again, a Constitution is not self-operative and in the absence of legislative regulation does not confer on telephone companies the right to use the streets of a city, where such Constitution declares the right of any corporation to construct and maintain lines. of telegraph and telephone upon the streets and highways within the State, and that such companies shall have the right of eminent domain and be common carriers, but leaves it to the legislature to make enactments to effectuate the purpose intended. 12 And a statute is not self-operating to prevent the use of street privileges until action be taken by a borough, where such statute empowers borough councils by ordinance to regulate the streets of the borough, and to prescribe the manner in which corporations or individuals shall exercise any privileges granted to them in the use of the streets. Such authority can only be exercised by the borough by passing an ordinance. Until regulative action be taken in the mode prescribed by statute any existing street privilege capable of complete exercise may be used by any party having the right to 11 State ex rel. Crumb v. Mayor, etc., of Helena (Mont. 1906), 85 Pac. 744, under Const. § 14, art. 15. In this case the Civ. Code § 1000, provided that: "A telegraph or telephone corporation, or a person, is hereby authorized to construct such telegraph or telephone line or lines from point to point, along and upon any of the public roads, by the erection of necessary fixtures, including posts, piers and abutments, necessary for the wires; but the same shall not incommode the public in the use of said roads or highways." This section was amended by the legislature by enlarging its provisions so as to make them applicable to electric light and power lines also, and adding this proviso: Provided, however, that the provisions of this act shall not apply to public roads and high 66 * ways within the limits of incor- 12 State, Spokane & British |