which cannot be impaired or destroyed either by the State or the municipality, there being no reservation in the grant of power to so act, and the court has power to put the proper authorities in motion to adopt reasonable rules and regulations.14 § 350b. Power of municipality to repeal franchise for noncompliance with conditions. Though a corporation is not complying with the terms of an ordinance permitting it to erect its line in the streets of the city, and which prescribed the character of the poles, the manner of stringing the wires, the supervision under which they should be erected and also required certain services to be performed by the corporation for the town in consideration of such permission, the franchise cannot be revoked, it having been accepted and acted upon, by a repeal of the ordinance, no such power being given to the municipality, but obedience thereto should be enforced by appropriate proceedings, it being declared that if the corporation is engaged in acts not warranted by its charter, or in violation of the laws of the State, that is a matter in which the State is concerned and that a proceeding to forfeit its franchise would be the appropriate remedy. It is also decided in such a case that it is no ground for the repeal of the ordinance that the stockholders, officers and managers of the company are persons different from those who were its stockholders, officers and managers when the permission was granted. 15 14 Michigan Telep. Co. v. City of St. Joseph, 121 Mich. 502, 80 N. W. 383, 47 L. R. A. 87, 7 Am. Elec. Cas. 1. See City of St. Paul v. Freedy, 80 Minn. 350, 90 N. W. 781, 8 Am. Elec. Cas. 29, as to right to mandamus to compel commissioner of public works to designate location of poles for telephone line where he has arbitrarily refused to act. Refusal of board of public works to act. Where it is provided by the charter of a municipality that no obstruction shall be placed in the streets without a permit therefor from the board of public works which shall also have the power to determine the time and manner of using the streets for placing and maintaining electric light, telegraph and telephone poles, if such board refuses or neglects to act within a reasonable time after a proper and timely application has been made to it, the court may compel it to act. City of Marshfield v. Wisconsin Telep. Co., 102 Wis. 604, 78 N. W. 735, 7 Am. Elec. Cas. 103. 15 Phillipsburg Elec. L. & P. Co. v. Inhabitants of Phillipsburg, 66 N. J. L. 505, 49 Atl. 445, 8 Am. Elec. Cas. 149. § 350c. Municipality estopped to question power of electric light company to occupy streets.-A municipality is estopped. to question the lack of power of an electric light company to occupy the streets with its poles and wires, on the ground that it was not incorporated under the act relating to electric light companies, but under another act which conferred no power to erect its line in the streets, where it appears that after the company was incorporated the city granted to it a franchise to erect and maintain its poles and wires in the streets and that the company acted upon such franchise, constructed its plant, and erected its line and also extensions thereof with the acquiescence of the municipality and maintained the same. and operated under the franchise for several years. 16 § 351. Constitutional provision as to consent Limitation on legislature - Illegal grant.-A constitutional provision that 16 Wyandotte Elec. L. Co. v. City of Wyandotte, 124 Mich. 43, 82 N. W. 821, 7 Am. Elec. Cas. 43. In this case the court said: "The purposes for which complainant was organized are precisely those covered by the electric lighting act. It could not carry on its proposed business without the use of the streets, and immediately applied to the city for such use. The city so understood it. That the inhabitants of a municipality should be supplied with light is as essential as that they should be supplied with water and telephones. They are all recognized by law as necessary, made so by modern methods of living and business. The people of the State through their legislature, have so determined by authorizing the formation of corporations for these purposes. Whether the defendant city knew under what act complainant was organized does not appear. Why complainant organized under this act is unexplained. No good reason appears or is sug gested for its doing so. The only reasonable excuse is that somebody blundered. Whether the act under which it was organized would permit its incorporation, we need not determine. The State for nine years recognized its incorporation as valid. The defendant city dealt with it for the same time as a valid corporation, granted it the franchise as requested, permitted it to erect and maintain an extensive plant; and now, when the city has gone into the business of municipal and commercial lighting, seeks to crush it, to utterly destroy its property, and compel its patrons to become the patrons of the city, which charges more for its service than does complainant. It is needless to say that defendants are without equity, and that their contention ought not to prevail, if the courts of equity have power to prevent it. We are of the opinion that the defendants are not in a position to raise the question of lack of power in the complainant, and that that question is one which the State alone can raise," per Grant, J. the consent of the local authorities and of abutting owners must be obtained prior to the granting of any right to use the streets is a limitation upon the powers of the legislature. It does not follow that, because there are words in the Constitution creating such a limitation, the legislature can confer upon the local authorities power to consent to such a grant when the granting is otherwise illegal, or that it may not repeal such power by subsequent legislation. Thus the charter of Greater New York provided that no franchise should be granted to street railways for a longer period than twenty-five years.17 Subsequent to the passage of this act, but before the new officials elected thereunder had taken office, a grant was made by the local authorities of Brooklyn to a street railway for a period in excess of the term above specified. The grant was held illegal as being given after the passage of the act and for a term in excess of twenty-five years, the court holding that a delegation of power to a municipality over its streets did not authorize it to make an illegal grant of the use of the same. 18 § 352. Conditions precedent to construction - Generally— Many different conditions have been imposed by the statutes of the different States as a prerequisite to the construction of elec trical lines. Although an electrical company may have received a grant from the legislature to erect its line, yet, where by statute or by its charter it is required to do certain things or obtain certain consents before commencing the work of construction, these requirements will operate as conditions precedent to the work of construction.19 So, where the statute prescribed that, under certain conditions, before a street railway could construct its line, there must be a finding of public necessity and convenience, it was held that such finding was a condition precedent, which must be complied with.20 And where 17 Chap. 378, Laws of 1897. 18 Norris v. Wurster, 23 App. Div. (N. Y.), 124, 48 N. Y. Supp. 656. 19 Citizens' Gas Light Co. v. Inhabitants of Town of Wakefield, 161 Mass. 432, 5 Am. Elec. Cas. 631, 37 N. E. 444; Stockton, Attorney-General Atlantic Highlands, Red v. Bank & Long Branch Elec. Ry. Co., 53 N. J. Eq., 418, 32 Atl. 680. 20 New England R. Co. v. Central R. & E. Co., 69 Conn. 47, 35 Atl. 1061; Conn. Act 1893, chap. 169, § 8. In New York before 1902, when § 59a of the Railroad Law (L. 1902. ch. 226) was enacted, the lines of a telephone company was authorized by a municipality to extend its lines upon condition that the location of all poles should be designated by the commissioner of public works of the city it was decided that the company had no right to proceed and erect its poles upon the refusal of the commissioner to designate the location, though his refusal was arbitrary and unjustified, but that the company must pursue the legal course open to it to compel the commissioner to act.21 But where a statute required that, in case of an application for license to erect poles, notice of such application must be given to abutting owners, it is held that where an abutting owner, to whom no notice has been given, is present and knows of such application, the failure to give him notice will not invalidate the license. 22 § 352a. Proving acceptance of grant.- The acceptance of the terms of an ordinance conferring rights and privileges upon an electrical company may be shown by a written receipt signed by the city clerk reciting that a written acceptance thereof has been filed by the company with him as provided in the ordinance.23 a street surface railroad could be extended under § 90 of that law without obtaining from the railroad commissioners a certificate as to public convenience and necessity; but since the enactment of § 59a an extension of a street surface road that will practically parallel such a road, already constructed and in operation, can not be made without such a certificate. The provision of this section was held not to apply to an extension of a street surface railroad which was incorporated in 1895 and which filed a statement in 1901 under § 90 for a proposed extension of its line. New York Central & H. R. R. Co. v. Auburn Interurban Elec. R. R. Co., 178 N. Y. 75, 70 N. E. 117, affg. 80 N. Y. Supp. 1144, 79 App. Div. 645. 21 City of St. Paul v. Freedy, 86 Minn. 350, 90 N. W. 781, 8 Am. Elec. Cas. 29. 22 York Teleph. Co. v. Keesey (C. P.), 5 Penn. Dist. R. 366. 23 City of Baxter Springs v. Baxter Springs L. & P. Co., 64 Kan. 591, 68 Pac. 63, 8 Am. Elec. Cas. 125. The court said: "The reception of the paper by the referee is urged as error, and it is claimed that the written acceptance itself should have been introduced, instead of the written acknowledgment of its receipt; that, had such written acceptance itself been introduced, it might have shown some change of the terms of the proffered contract contained in the ordinance. We do not think that this claim is well founded. The ordinance itself provided that it might be accepted § 353. Local governmental control and consent.- We have already considered the question of constitutional and legislative powers in reference to streets and highways; the delegation of those powers to local governments; 24 the subject of interstate commerce and post roads, in so far as they concern the use of streets by telegraph and telephone lines; 25 and also State and local governmental control over the streets and highways, and the exercise of the police power.26 As a general rule, the control of the streets and highways is vested in the local governments, each of which may exercise such control and so regulate the use thereof in its own limits as will best subserve the interests of the particular community. So, also, the legislative authority to use the streets for the purpose of telegraph, telephone, electric light or street railway lines is generally conditioned upon the consent of the local authorities having control of the street or highways upon which it is proposed to construct such lines. In those cases where the statute contains such a requirement, the consent of the local authorities is a condition precedent to the construction of such lines upon the streets or highways within their control.27 Such permission or consent, however, is merely an accessory of the company's franchises, and where the latter is unconstitutional and void the action of the local authorities is in by the filing with the clerk of a writing indicating such acceptance. The receipt of the clerk was at least prima facie evidence that said writing had been filed with him; that the company had done what the ordinance required it to do to indicate that it had accepted the provisions of the same. It seems to be agreed that the receipt only indicates that the acceptance had been received by the clerk, not filed. Whether filed or not makes no difference. The company could not file it. It had taken the written acceptance to the clerk, the officer which the ordinance indicated was the proper one with which to deposit the same," per Cunningham, J. 24 See chaps. XI-XIV, herein. In Ohio, humlets in existence at the time the municipal code of 1902 went into effect were municipal corporations, and thereafter, if they had a population of less than five thousand at the last federal census, they were villages; and a street railway company is without authority to construct its road on or above their streets or roads without their consent. Electric St. R. R. Co. v. Hamlet of North Bend, 70 Ohio St. 46, 70 N. E. 949. |