§ 431.

Subway inadequate Limited consent to use of overhead wires Effect of.- Limited consent, given by the board of electrical control in New York city, to the maintenance of overhead wires, owing to inadequacy in the subways at the time of giving notice to remove surface wires, will not ripen, by use, into an absolute right or franchise to maintain overhead wires." 43

§ 431a. Power of municipality to compel placing of wires in conduit used for other wires-Where impracticable. Though a municipality may have the power to require an electrical company to remove its poles and wires from the streets and place them in conduits, such power must be exercised with a due regard for the rights possessed by the company by virtue of its franchise. Such a company cannot be compelled to place its wires in a conduit constructed and maintained by another company under a contract with the city and which contains wires. charged with a current of such power that it is impracticable for the former company to occupy the conduit, as such a requirement would be a substantial denial of the right to exercise the privilege acquired by such company under its franchise. If, however, the conduit in existence is adequate and convenient for the additional wires and is suitable for the use of such wires the municipality may require that they be placed in the conduit already in existence, and permission to construct an additional conduit may be refused where the additional one would greatly and unnecessarily inconvenience the public.44

§ 432. Location of subway - Not conclusive - Interference —Injunction.— A subway, permission for the construction of which has been obtained from the proper local authorities, should be so located as to avoid unnecessary interference with access to other subways owned by other companies. So, where the location of a subway, as designated by the commissioner of public works, was directly over another subway, and if so constructed it would interfere with access thereto it was held that

43 Electric Power Co. v. City of New York, 60 N. Y. St. R. 590, 29 Misc. (N. Y.) 48.

44 City of Rochester v. Bell Tele

phone Co., 52 App. Div. (N. Y.) 6, 64 N. Y. Supp. 804, 7 Am. Elec. Cas. 211.

where there was ample room for the proper construction of the subway on either side of the existing one, the action of the commissioner in so locating it was not conclusive, where the franchise of the earlier company was granted in consideration of the use to the city of one of the ducts in such subway for city wires, thus creating a contract which the municipality could not violate. Accordingly, an injunction restraining such construction was granted, pending suit.45

§ 433. New Jersey Subways Act Construction of. The New Jersey Act of 1892,46 in regard to the placing of electrical conductors underground, and providing for the creation of a State Board of Commissioners of Electrical Subways, does not confer upon the board power to grant franchises, but rather the power to control and regulate franchises already granted by other competent authority. This construction of the act was declared, in a case where consent to erect poles and wires for a street railway had been granted by the board of commissioners, but it appeared that the ordinance authorizing the use of electricity and under which the company received its right to use such motive power had been decided to be illegal. In a case which came before the courts shortly prior to the above, an application was made by a street railway company for an injunction restraining an abutting owner from cutting the wires of the company. The act above referred to required consent of the board of commissioners to the stringing of electrical wires. It did not appear that such consent had been obtained. The court held that if it was even doubtful whether the act was constitutional or whether it applied to complainant, it was fatal to the application. 48

45 Western Un. Teleg. Co. v. Syracuse (N. Y. Sup. Ct.), 53 N. Y. Supp. 690, 24 Misc. (N. Y.) 338.

46 Act of March 10, 1892, Pamph. L., p. 78. By the Laws of N. J. of 1896, chap. 189, §§ 1, 2, 3, p. 322, electric light, heat and power companies may lay pipes or conduits in streets for its wires, subject to certain regulations as to obtaining consent and laying of pipes.

47 Trustees of Presbyterian Church v. State Board of Commissioners of Electrical Subways, 55 N. J. L. 436, 4 Am. Elec. Cas. 135, 27 Atl. 809.

48 Paterson Ry. Co. v. Grundy, 51 N. J. Eq. 213, 4 Am. Elec. Cas 173, 26 Atl. 788. Order to show cause was discharged.

§ 434. Underground wires - Subject to regulation — Police power. A grant of the right to lay underground wires is subject to such reasonable regulations as the city, in the exercise of its police power, may deem will best subserve the public safety and convenience.19 And where a corporation is released from certain requirements which are inconsistent with its charter as to the laying of wires under the surface of streets, such release will not operate to relieve it from lawful police regulations imposed by the city.50

§ 435. Underground wires-District of Columbia - Powers of commissioners.-The fact that an electrical company is authorized to extend its system of underground wires and conduits subject to such regulations as may be imposed by a board of commissioners, is not an authorization of an extension through such streets as the company may select, leaving to the commissioners the power only of regulating the manner of laying such wires, and of constructing the conduits. 51 Under the Appropriation Act of the District of Columbia, and the Sundry Civil Appropriation Act of June 11, 1896, authorizing the extension of the electric light service to places not previously lighted by such means, and having no undergound wires, and providing that the current furnishing such light shall be supplied entirely by means of wires placed under the surface of the streets, the commissioners of such District have implied power to permit the laying of underground wires. 52 And this power was held not confined to the granting of a permit to the company furnishing electric light service at the time and which had laid wires under the surface of streets for that purpose.53 In the Appropriation Act of the District of Columbia, referred to above, providing for the extension of electric light service, the

49 Missouri, Laclede Gas L, Co. v. Murphy, 170 U. S. 78, 18 Sup. Ct. Repr. 505.

50 Missouri, Laclede Gas L. Co. v. Murphy, 170 U. S. 78, 18 Sup. Ct. Repr. 505. The subject of reg

ulation of wires is treated elsewhere see chaps. XIV, XXI, herein.

51 Potomac Elec. Power Co. v.

United States Elec. Lighting Co., 26 Wash. L. Repr. 19.

52 United States Elec. L. Co. v. Ross (D. C.), 24 Wash. L. Repr. 775; appeal denied, 24 Wash. L. Repr. 838.

53 United States Elec. L. Co. v. Ross (D. C.), 24 Wash. L. Repr. 775; appeal denied, 24 Wash. L. Repr. 838.

words "in these streets now lighted with electric arc lights in the city of Washington, and for necessary extension of such service," are construed as not limiting such extension to streets already lighted, but as conferring upon the commissioners of the District power and discretion to designate what streets such lighting shall be extended to.54

§ 435a. Order to remove conduits-Failure to obey Power of authorities to remove.- Where by statute power is conferred upon a transit commission to order the removal or relocation of a conduit which is deemed to interfere with the construction of a subway and that the person or persons owning the same shall comply with such order, the one to whom such an order is given is obligated to obey and upon his failure to do so, the conduit may be removed by the commission and the cost of the removal recovered from the owner thereof.55

§ 436. Permission to lay wires underground - Missouri Maryland Pennsylvania-Canada.- Where by statute a corporation is authorized to construct a subway beneath the surface of the streets, upon obtaining consent from the city, a grant by the city of the right to construct such subway is an act by the city in its proprietary capacity, and does not misappropriate the streets or any part thereof.56 So where the department of public works and safety of a city is vested with power to permit the erection of telephone poles, a resolution of the city council, directing that no permits shall be granted by this department for the laying of underground wires or the erection of terminal poles, unless an ordinance has been passed authorizing such construction, is inoperative being beyond the province of such council.57 And though a telephone company of the city of Philadelphia may be authorized by an ordinance to erect poles in connection with its underground trolley system, yet this grant is subject to the issuance of a permit by the

54 United States Elec. L. Co. v. Ross (D. C.), 24 Wash. L. Repr. 775, appeal denied, 24 Wash. L. Repr. 838.

55 City of Boston v. Boston Elec. L. Co., 180 Mass. 516, 62 N. E. 978.

56 State, National Subway Co. v. St. Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113.

57 Com., Bell Teleph. Co. v. Warwick, 185 Penn. St. 623, 40 Atl. 93.

director of public safety, and to the exercise of reasonable police regulations.58 Under the Maryland acts 59 it was made a prerequisite, in the city of Baltimore, to the issuance of a permit to open the streets for the purpose of constructing conduits for electric light wires than an ordinance should be passed authorizing the construction of such conduits.60 And where such an ordinance has been passed and accepted and acted upon by the company, and all the conditions imposed have been complied with, the right of the company is in the nature of a contract, and not a mere license,61 and the company will be entitled to an injunction against interference by the municipal authorities with the exercise of the rights so acquired.62 Again, if an electrical company is authorized by statute to lay underground wires upon making a report to the city council of the proposed work, subject to the right of such council to supervise the work, and the manner of opening the streets is prescribed by statute, if reasonable notice has been given to the council by the corporation, of its intention to lay such wires, and the council takes no steps in consequence of such notice, it has no

58 Com., Bell Teleph. Co. v. Warwick, 6 Penn. Dist. Rep. 473.

59 Md. Code, art. 23, § 111, conferring electric light or power franchise upon certain companies, but excepting electric light companies from incorporating under such provision to operate in Baltimore. Md. Acts of 1890, chap. 233, amending foregoing provision and conferring on such companies in Baltimore the rights and privileges granted therein.

60 Edison Elec. Illum. Co. V. Hooper, 85 Md. 110, 36 Atl. 113, 6 Am. Elec. Cas. 8.

61 Chesapeake & P. Teleg. Co. v. Baltimore, 89 Md. 689, 43 Atl. 784.

62 Chesapeake & Potomac Teleph. Co. v. Baltimore, 90 Md. 638, 45 Atl. 446, 7 Am. Elec. Cas. 151, wherein the court says that it entertains no doubt as to the correctness of the decision of questions of

law in 89 Md. 689, cited in preceding note, and holding that where a telephone company has SO accepted a franchise to construct a conduit and is willing to construct it in accordance with the conditions and regulations imposed at the time of the granting and acceptance of the franchise, it will be entitled to such an injunction.

It is incumbent upon the company, where it seek the intervention of the court to enjoin interference by the municipality with the exercise of its franchise rights, to show that it has performed the obligations imposed on it by the ordinance and all that the contract requires to be done on the part of the company. Baltimore v. Chesapeake & Potomac Teleph. Co., 92 Md. 692, 48 Atl. 465, 7 Am. Elec. Cas. 158.