is true that the law abhors a forfeiture, but there can be no other construction of this charter, than that the defendant was to forfeit this sum as liquidated damages for a failure to fulfill the agreement to construct the plant and operate it as provided." 99 70 73 $ 357. Exercise of local powers - Consent and controlPower of courts - May not inquire as to motives. The right to establish reasonable rules and regulations or to grant consent for the erection of an electrical line in the streets is a legislative or administrative function and not a judicial one. The court, while it has power to pass upon the validity of action taken by the municipality or to compel the authorities to act, cannot grant consent for the erection of poles, or adopt rules and regulation in regard thereto.72 Nor will the motives by which local authorities may be influenced in exercising their powers of granting or refusing consent to the construction of electrical lines upon their streets be inquired into by the courts, or the exercise by a municipality of the power expressly reserved to it to repeal an ordinance granting the right to an electrical company to occupy the streets with its poles. and wires. While the legislature or municipal authorities cannot authorize a structure in the streets, which is subversive of the rights of the public or repugnant to the proper use of the streets, yet, where poles are erected in streets or highways in pursuance of permission of the local authorities, the courts will not interfere with the discretion of such authorities, where there appears to be no serious interference with the rights of the public or of abutting owners.75 And where a munici70 City of Detroit V. People's Teleph. Co., 135 Mich. 696, 98 N. W. 745, per Montgomery, J. 74 71 City of Mansfield v. Wisconsin Teleph. Co., 102 Wis. 604, 78 N. W. 735, 7 Am. Elec. Cas. 103. 72 Michigan Teleph. Co. v. City of St. Joseph, 121 Mich. 502, 80 N. W. 383, 7 Am. Elec. Cas. 1. 73 Adamson v. Nassau Elec. Ry. Co., 89 Hun (N. Y.), 261, 68 N. Y. St. R. 851, 34 N. Y. Supp. 1073. See also State, Moore v. West Jer sey Tract. Co., 62 N. J. L. 386, 41 74 Southern Bell Teleph. and Teleg. Co. v. City of Richmond, 98 Fed. 671, wherein it is declared that the power to repeal in such a case does not depend on cither the necessity for it or on the soundness of the reasons assigned for it. 75 Tuttle v. Brush Elec. Illum. pality is, by its charter, given general control of the streets and power to remove all obstructions therein, which in the opinion of the council may impair the usefulness of such streets, the council is thereby given quasi-judicial or discretionary power, and a decision by such council that the contemplated erection of the poles of a telephone company will be an obstruction, such as above mentioned, will not ordinarily be disturbed by the courts.76 In New Jersey, however, it is held that, where the fee to the streets is in the abutting owner, he may test the validity of an ordinance granting permission to a trolley company to construct its line in such streets, by a writ of certiorari, and that this will operate as a stay of proceeding under such ordinance from the time of service." § 358. Municipal consent Reservation of use of crossarm to city Conditions.- An ordinance granting the right to an electrical company to construct its lines in the streets of a city. reserving to the city the right to the use of a crossarm on the poles erected, constitutes, when accepted by the grantee and acted upon by it, a contract between the city and such company, from which neither may recede, except upon the terms provided.78 This rule is founded upon the principle that, where an easement is granted by either the State or the municipality, conditioned upon the performance by the grantee of some act beneficial to the grantor, if accepted and acted upon by both parties, constitutes a contract between them, from which neither party may recede, except upon the terms provided for or contemplated by the contract.79 And a municipality, in granting Co., 50 N. Y. Super. Ct. 464, 1 Am. 76 Utica v. Utica Teleph. Co., 24 App. Div. (N. Y.), 361, 48 N. Y. Supp. 916. 77 State, West Jersey Tract. Co. v. Camden, 58 N. J. L. 536, 37 Atl. 578; State, Green v. Inhabitants of City of Trenton, 54 N. J. L. 92, 4 Am. Elec. Cas. 30, 23 Atl. 281; State, Kennelly v. Mayor & Aldermen of Jersey City, 57 N. J. L. 293, 30 Atl. 531, 5 Am. Elec. Cas. 146. 78 St. Louis v. Western Un. Teleg. Co., 148 U. S. 92, 4 Am. Elec. Cas 112, 13 S. Ct. 485; St. Louis v. Western Un. Teleg. Co. (U. S. C. C, 1894), 5 Am. Elec. Cas. 43. 79 City of St. Louis v. Western Un. Teleg. Co. (U. S. C. C., 1894) 5 Am. Elec. Cas. 45; City of New Orleans v. Great Southern Teleph. & Teleg. Co., 40 La. Ann. 41, Am. Elec. Cas. 122, 3 So. 533; Rutland Elec. L. Co. v. Marble City Elec. L. Co., 65 Vt. 377, 4 Am. Elec Cas. 256, 26 Atl. 635. See § 350, Grant of Right to Use Streets Nature of Contract. consent to the construction of an electrical line upon its streets, may impose certain conditions upon the grantee, which become binding when it has accepted and acted upon such consent.80 But it cannot impose conditions, for the purpose of preventing the use of the streets, which are not based on the inconvenience of the public or the obstruction of its streets.81 The fact, however, that different conditions are imposed upon a company than upon other similar companies is not a denial to it of equal protection of the law or due process of law.82 So it may be conditioned that a street railway shall be completed by a certain time.83 But where a telephone company had the right by law to erect poles and wires in the streets of St. Louis, subject only to the right of the local authorities to designate the kind of poles which should be used, the location of the same, and the height at which the wires should be strung, it was held that the board of public improvements, having merely power to make by-laws and rules for the transaction of its own business as a board, had no power to impose a condition upon the company that the poles should be subject to use by other companies at a fixed rental, or that it should not maintain on its own poles, or the poles of other companies, unused or unnecessary wires.84 § 359. Municipal consent - Free service to city-Telephone - Electric light. A municipality may, in granting consent to a telephone or electric light company to occupy the streets, impose as a condition that free service shall be furnished to the city, and where the company accepts and acts upon such consent it acquires the features of a contract binding both parties.85 And where an electric light company is 82 Chicago General R. Co. v. Chicago, 176 Ill. 253, 52 N. E. 880. 83 State, Hutchinson V. Belmar, 61 N. J. L. 443, 39 Atl. 643, affd., 62 N. J. L. 450. 8+ State ex rel. Bell Teleph. Co. v. Flad, 23 Mo. App. 185, 2 Am. Elec. Cas. 128. 85 City of New Orleans v. Great Southern Teleph. & Teleg. Co., 40 La. Ann. 41, 3 So. 533, 2 Am. Elec. granted permission to construct its line in certain streets upon condition that it shall wire and furnish lamps and light free of charge for city buildings used for specified purposes, and it accepts the condition imposed, its obligation to the city, in this respect, is not terminated by the destruction of the buildings in existence at the time of the grant, but survives and extends to new buildings erected in their place.8 86 § 360. Decision of commissioners - Necessity for roadNew York statute - Powers of court, reference to.- The clause in the New York Constitution, in reference to obtaining the consent of abutting owners.87 provides that, upon failure of a street railway to obtain the necessary consents, application may be made to the General Term of the Supreme Court for the appointment of commissioners, who shall determine whether such road ought to be constructed and operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the abutting owners. If commissioners acting under this provision make a report adverse to the construction of the road, it is held that there is no power in the Appellate Division to set aside, confirm or review their determination. Where the commissioners are divided, the court has power to confirm the report of the majority.89 § 360a. Appeal from "decision, denial, direction, or order " of municipal authorities to railroad commissioners - Statute.— In Connecticut the right is given by statute to a street railway company to appeal to the State railroad commissioners from any "decision, denial, direction, or order" of the municipal authorities. The construction of this statute arose in a recent case where the selectmen of a town had approved the location of a railway upon a highway in the town, subject to certain conditions which were imposed upon the applicant, who appealed to the board of railroad commissioners "from cer Cas. 122; Kensington Klec. Co. v. 86 Kensington Elec. Co. v. Philadelphia, 187 Penn. 446, 41 Atl. 309, 43 Week. N. of Cas. 186. 87 New York Const., art. 3, § 18. 88 Re Nassau Elec. R. Co., 6 AppDiv. (N. Y.), 141, 40 N. Y. Supp. 334. 89 In re Port Chester St. Ry. Co., 43 App. Div. (N. Y.), 536, 60 N. Y. St. R. 160. tain portions of said decision, direction and order." The commissioners ordered the laying of the tracks on lines approved by the city, but held they had no authority to make any order disposing of the matters specified as grounds of appeal. From this action an appeal was taken to the Superior Court, by which it was disaffirmed and annulled, and the matter sent back to the commissioners, which decision was affirmed by the Supreme Court; which declared that the appeal conferred by the statute "is an appeal from the entire decision, denial, direction or order" and that: "The commissioners, on any such appeal, have at least as great powers as the municipal authorities originally had, and try all matters in controversy de novo." 90 § 360b. English Electric Lighting Acts-Erection of boxes in street-Notice to district surveyor.- Where a local authority within the meaning of the English Electric Lighting Acts of 1882 and 1888, in pursuance of those Acts, has been granted a provisional order confirmed by a statute, and under the provisions of that order has constructed in a street boxes to be used in connection with the supply of electric energy, such boxes are buildings, structures or works, within sect. 145 of the London Building Act of 1894, and a notice under that section. must be served on the district surveyor before they are commenced.91 § 361. Use of overhead trolley wires-When prohibited.Though a statute may empower the municipal authorities to authorize the use of any improved motive power, yet, if the charter of the company excludes the use of overhead wires, the municipality cannot authorize the construction of poles and wires for the overhead system. 92 So, an ordinance granting |