legislature did not understand that selectmen were authorized to award damages to owners or occupants of land, except in those cases where they are given jurisdiction to locate the line. If they had general authority to award damages in all cases to owners or occupants of lands, then this enactment, so far as it relates to the assessment of damages, was unnecessary.

* * The orator's case" (who sought to recover damages awarded by the selectmen on account of the erection of a telegraph line in and along a public highway, adjacent to his lands), "does not fall within any of the exceptions. It does not appear that in the erection of the line in question it became inconvenient or inexpedient to erect it without inconvenience in traveling or in making repairs, nor does it appear that the line was erected in or along the streets of a village or in front of or near a dwelling, or that it became necessary to cut or injure trees. The burden was on the orator to show that the selectmen had jurisdiction to make the award they did. This he has not done; therefore, it must be held that the selectmen acted without authority and that the award made by them is void," and the decree of the Court of Chancery dismissing a bill for injunction at the instance of the orator, restraining the erection of the line, until after the award was paid, was affirmed and the case remanded. It is said in a

1 Rugg v. Commercial Un. Teleg. Co., 66 Vt. 208, 4 Am. Elec. Cas. 142-145, 28 Atl. 1036, per Start, J. Cited, Western Un. Teleg. Co. v. Bullard, 67 Vt. 272, 5 Am. Elec. Cas. 104, 31 Atl. 286, to the point that the selectmen were not to assess damages under section 3637 (the section above construed, § 4228 Vt. Stat. 1894, p. 761), in the cases named in the section, except when objections were made (the same statutes are also noted). The county commissioners cannot arbitrarily refuse the use of a county bridge to a street railway company, when the proper local and municipal authority have given their consent to the use by the company of

a highway of which the bridge forms a part. But if such consent is refused by the commissioners, the court may, after ascertaining what will be necessary to strengthen the bridge for street railway traffic, permit the company to enter upon the bridge and strengthen it; and when that has been done, to the satisfaction of the court, the company may be permitted to use the bridge, upon giving security that it will faithfully observe and abide by the terms and conditions relating to the manner of its use, the repairs thereof, and the payment of rent, which may have been, or may be agreed upon by the parties, or in the absence of an agree

Massachusetts case that the power given to the selectmen of a town in regard to the location of poles, etc., was one to be exercised in their discretion, and that the whole subject was committed to them by statute, seemed to have been assumed in several cases.2

§ 157. Powers of county board. Although it may be the duty of a board of freeholders to erect and maintain bridges and to control the manner of their use, nevertheless, an obligation rests upon the board, in case a new use is required of a country bridge, to make such previous inquiry as to enable it to act intelligently and to see that the bridge is safe for the contemplated or new use. In view, therefore, of this obligation, it would seem that such board acts improvidently and in abuse of its power, where, without such inquiry, it adopts a resolution allowing a county bridge to be appropriated to the use of a private electric railway corporation, by which use the bridge is endangered and the safety of the public travel impaired, by reason of the insufficient strength and width of the bridge. The board must not transcend its powers nor clearly abuse the discretion committed to it. If it does so, and there is no other mode of protecting the public interest, certiorari may lie, even though as a rule the courts cannot interfere with the board of freeholders in the proper exercise of their powers; especially so, where the question is not whether that body has exercised its discretion and passed its judgment upon the propriety of permitting the use of public property in a given way. It is also true that such board cannot by resolution authorize a street railway company to construct and operate a trolley road over a county bridge, where the company is by law not permitted to introduce the trolley system, and in such

ment may be determined upon by v. Commissioners, 4 Gray (Mass.), the court. Laurence County V. New Castle Elec. St. R. Co., 8 Penn. Sup. Ct. 313, 43 Week. N. of Cas. 76, 29 Pitts. L. Jour. (N. S.) 145.

2 Suburban Light & Power Co. v. Board of Aldermen, 153 Mass. 200, 3 Am. Elec. Cas. 82, 26 N. E. 447, per Mr. Justice Devens, citing Hitt

414; Young v. Yarmouth, 9 Gray (Mass.), 386; Commonwealth V. City of Boston, 97 Mass. 555, Pierce v. Drew, 136 Mass. 75, 1 Am. Elec. Cas. 571. Statute referred to is Mass. Pub. Stat., c. 109, §§ 2, 3. See Rev. Laws Mass., 1902, p. 377, c. 25, §§ 54-56, id. pp. 1192 et seq., c. 122.

case a taxpayer of the city and county, subject to taxation for the support of the bridge, may intervene by certiorari. In Indiana the county board may, by statute, grant the right or privilege to a street railway company to use any public highway of the county for its street railway, and by virtue of a license or grant from such board to an electric street railway to use a highway, it may cross a steam railroad track at grade, since the latter's right of way at crossings is subject to the public easement.5

§ 158. Legislative and ministerial acts of local government.

In the exercise of their municipal duties, including those most strictly local or internal, municipal governments are departments of State, and their powers may be increased or diminished by the State from time to time, unless the organic law provides otherwise.8 Where municipalities are vested with certain powers of local legislation, valid ordinances passed by them have the force of legislative acts, with reference to persons affected thereby. So the ordinance of a board of village trustees, granting consent to erect poles and string wires for electric lighting purposes, is a legislative act. 10 In Pennsylvania, a resolution awarding a contract for street lighting is a ministerial act, which need not be advertised or recorded.11 So municipal authorities have discretionary power to grant franchises to electric railways, where the statute authorizes them to permit the maintenance of "horse and steam railroads." 12 And the power given the aldermen of a city to locate poles, etc., is discretionary.13

Co. v. The Whiting, H. & E. C.
St. Ry. Co., 139 Ind. 297, 5 Am.
Elec. 236, 246, 38 N. E. 604.

6 See §§ 141, 142, herein.

7 Barnes v. Dist. of Columbia, 91 U. S. 540, 544, 23 L. Ed. 440, per Hunt, J.; Commissioners of Albany Co. v. Commissioners of Laramie Co., 92 U. S. 310, 23 L. Ed. 554, per Clifford, J.; Cooley's Const. Lim. (6th ed.), pp. 138, 228.

8 Thomas v. City of Richmond, 12 Wall. (U. S.) 356, per Bradley, J. See § 145, herein.

9 The Louisville Bagging Mfg. Co. v. The Central Pass. Ry. Co. (Louisville L. & E. Ct., 1890), 3 Am. Elec. Cas. 251, 252, per Toney, J., citing Cooley on Const. Lim., p. 140; Dill. on Mun. Corp., § 308. In same case, 95 Ky. 50, 15 Ky. L. Rep. 417, 23 S. W. 592, 44 Am. St. Rep. 203, it is held that where the general assembly has delegated to a municipal corporation the

It is said in a New York

power and in pursuance thereof it grants by ordinance the right to construct and operate an electric railway, the right thus given is as valid and effectual as if conferred directly by the legislature.

10 The Consumers Gas & Elec. Light Co. v. The Congress Spring Co., 61 Hun (N. Y.), 133, 39 N. Y. St. R. 703, 15 N. Y. Supp. 624, 3 Am. Elec. Cas. 211, 213, per Landon, J.

11 Seitzinger V. Tamaqua, 187 Penn. St. 539, 43 Week. N. of Cas. 236, 29 Pitts. L. Jour. (N. S.) 215, 41 Atl. 454; Schenck v. Olyphant, 181 Pen. St. 191, 37 Atl. 258.

12 So held in Buckner v. Hart, 52 Fed. 835, 4 Am. Elec. Cas. 21, affd., 54 Fed. 925.

13 Suburban Light & Power Co. v. Board of Aldermen of Boston, 153 Mass. 200, 3 Am. Elec. Cas. 82, 26 N. E. 447, per Mr. Justice Devens, citing Hill V. Commissioners, 4

case, that "The rule is well settled, that where power is conferred on public officers or a municipal corporation to make improvements and to keep them in repair, the duty to make them is quasi-judicial or discretionary, involving a determination as to the necessity, requisite capacity, location, etc. ÷ * * and the fact that this power is placed in the hands of one or more officers is only another form for the execution thereof. In the exercise of such power, the proper authorities have made a contract with defendants to light certain of the streets and the common council has authorized defendants to erect the necessary poles, pipes or other fixtures for conducting or distributing electricity under the direction of the commissioner of public works. The commissioner had given permission to erect the poles objected to, and it thus appearing that the city authorities, following the direction of the legislature, have exercised the discretion vested in them, their action becomes conclusive. * * * The manner of lighting the streets is the discretion that is vested in the city authorities, and they having exercised such discretion their acts cannot be reviewed they are the sole and exclusive judges of the means to be employed, so long as they do not authorize a use which is subversive of and repugnant to the use of the street as an open public street.'" 14 In a Missouri case, it is said that it is a well-established rule, " that in all matters pertaining to the police regulation of municipalities, their ordinances being in the nature of legislative discretion, are prima facie reasonable." 15 The board of public improvements of St. Louis is a ministerial board, having no legislative powers further than to regulate its own business and government, its authority being limited by the ordinances and charter of the city.16 Where the question was as to the power

Gray (Mass.), 414; Commissioners

v. City of Boston, 97 Mass. 555, and other cases.

14 Tuttle v. The Brush Electric Illum. Co., 50 N. Y. Super. 464, 1 Am. Elec. Cas. 514, 515, per Ingraham, J.

15 St. Louis v. Western Un. Teleg. Co. (U. S. C. C., E. D. Mo., 1894),

* * *

63 Fed. 68, 5 Am. Elec. Cas. 50, per Phillips, Dist. J., a case relating to the municipal control of, and rental charge for telegraph poles.

10 State ex rel. Bell Telephone Co. v. Flad, 23 Mo. App. 185, 2 Am. Elec. Cas. 128. See § 144 et seq. herein.