State v. Sloan, Mayor, and another.

the 29th of June, 1886, organized under the provisions of an act of the Legislature incorporating it, approved 9th of February, 1882. Sections 5 and 6 of this act are as follows:

Section 5. That the said company shall have power to construct single or double railway tracks of such gauge as they may elect, through any street or streets of the city of Columbia as it may deem advisable for the accommodation of the public or the interest of the company, and to extend the same five miles beyond the corporate limits of the city; provided, that the said company shall so construct its railways that they shall not obstruct the streets through which they pass, and that the company shall be required, after laying said railways, to replace the portion of the streets over which they pass in good condition, and thereafter keep their railway in like good order; in consideration of which the said company shall have such exclusive right of way over said railway, as may be necessary for the proper conduct of its business.

Sec. 6. That said company shall have power to transport passengers and freight in suitable and sufficient carriages and cars at such rates as may be fixed in the by-laws of the same.

On the 8th of June, 1886, the Columbia Street Railway Company petitioned the city council of Columbia for leave to lay its tracks, etc., in certain streets of said city. On the 29th of June, 1886, an ordinance was passed entitled "An ordinance to authorize the Columbia Street Railway Company to lay their tracks along certain streets herein mentioned, to regulate the manner of the same, and to regulate the manner of operating said railway." Section 12 of this ordinance is as follows:

The corporate authorities reserve the right to amend or alter this ordinance whenever circumstances may require it, and the granting of the privilege to this company to construct its tracks through any street is not exclusive, and the said city authorities may grant the same right to other companies through the same streets or thoroughfares if they deem it advisable.

By an act of the Legislature approved 24th December, 1890, the Columbia Electric Street & Suburban Railway & Electric Power Company was incorporated. Section 5 of this act is as follows:

State v. Sloan, Mayor, and another.

That the said company shall have power to construct or acquire single or double railway tracks, of such guage as they may elect, with consent of city council, and to extend the same five miles into the country in any direction or directions they may wish from the state capitol. And the said company is authorized and empowered to contract for and provide electric motor power for any other purpose or purposes.

Section 6 of said act is as follows:

That the said company shall have power to operate their cars in the transportation of passengers and freight, over the tracks they may construct or acquire in said city, with electric power, in suitable carriages, and at such rates as may be fixed upon in the by-laws of the same.

The petitioner company was incorporated by an act of the Legislature approved 16th December, 1891, and, by authority of that act, acquired the rights and franchises of the two companies herein before mentioned, subject to the liabilities and duties of said companies. On the 13th of September, 1892, the Columbia Electric Street Railway, Light & Power Company petitioned the city council for leave to operate its cars by electricity. In pursuance of said petition the city council on the 11th of October, 1892, passed an ordinance entitled "An ordinance to confer upon the Columbia Electric Street Railway, Light & Power Company the powers and privileges conferred upon the Columbia Street Railway Company by an ordinance ratified on the 29th day of June, 1886, and to enlarge the same." Section 3 of the last-mentioned ordinance is as follows, to wit:

And be it further ordained that the city council of Columbia, S. C., shall have the power and hereby reserves the right to regulate by ordinance the manner of operating such electric railway, and to alter and amend the ordinances relating thereto by such further enactment as in their judgment the public welfare may demand.

The exceptions will not be considered seriatim, as they raise substantially the single question whether the city. council had the power and authority to make the ordin

State v. Sloan, Mayor, and another.

ance in question. It is not necessary to cite authorities to sustain the general proposition that street railways are subject to reasonable regulations by the authorities of the municipality where they are located under its police powers. In this case the question whether the ordinance is reasonable is not before the court for consideration. We will proceed to consider whether the city council had the power to make the regulation aforesaid, that street cars should not be run unless in charge of a conductor. Not only is there an absence of legislative intent to prevent the authorities of the city of Columbia from exercising its powers of police in regard to the street railways, but the trend of the various legislative enactments relative thereto, and herein before mentioned, is to make the running of the street cars subject to rules and regulations prescribed by the city council. This police power of the city seems to have been recognized by the petitioner when it filed its petition with the city council asking permission to be allowed to make such changes in its line as were necessary to enable it to operate its cars by electricity, and with said. petition presented the draft of an ordinance to accomplish that result, section 3 of which ordinance is herein before set out. The authorities are not in harmony touching the abstract question whether municipal authorities have the right to make a regulation that the street cars shall not be operated unless in charge of a conductor. Whatever doubts may exist as to this abstract question, we are, nevertheless, of the opinion that the facts connected with the case show that the city council had the power to pass the ordinance in question, and that his honor, the circuit judge, was in error in deciding to the contrary. It is the judgment of this court that the order of the Circuit Court be reversed, and the petition dismissed.

NOTE.-See note to Grand Av. Ry. Co. v. People's Ry. Co., post

State v. Murphy, etc.

STATE, EX. REL. ST. LOUIS UNDERGROUND SERVICE COMPANY V. WILLIAM J. MURPHY, Street Commissioner.

Missouri Supreme Court, June 25, 1895.

SUBWAYS FOR ELECTRIC WIRES.-ULTRA VIRES FRANCHISE.

The city of St. Louis, empowered by its charter to regulate the use of streets, granted by ordinance to a corporation formed for the purpose of constructing and operating electrical subways, the right to construct and maintain such subways in any of its streets for the period of fifty years. It prescribed the manner and depth at which conduits and pipes should be laid in streets; declared the grantee to be a common carrier, and required prepayment of $500 semi-annually to the city for the rights and franchises granted. The original ordinance required the company to permit the use of the subways by any persons or companies desiring to use them, upon terms to be agreed upon; also required the company to maintain wires for the city fire and police alarm and telephone service, free of charge. These provisions were cancelled by amendment. After subways had been constructed in some of the streets and payment made by the company as prescribed by the ordinance, an application to construct further subways was refused, and application for mandamus made to compel the granting of the permit.

The application was denied upon the ground that the ordinance contemplated the use of public property for private purposes, which was beyond the power of the city to grant.

Held, also, that while by permitting the company to expend money and by receiving the stipulated payment, the city would have been estopped had the ordinance been within its charter powers, the principle of ultra vires prevented the application of the principle of estoppel. Also held, incidentally, that the city authorities had the power to autho: ize, and, if public safety and general welfare should demand it, to require all electric wires, used for the benefit of the public, to be laid underground; this, as a proper and legitimate regulation of the public use of the streets.

Cases of this series cited in opinion, appearing in bold faced type: St. Louis v. W. U. Tel. Co., vol. 4, p. 115; Julia Building Ass'n v. Bell Teleph. Co., vol. 1, p. 801; St. Louis v. Bell Teleph. Co., vol. 2, p. 44.

APPLICATION for mandamus.

Facts stated in opinion.

State v. Murphy, etc.

John G. Chandler, R. L. McLaran, and E. A. Noonan, for relator.

D. D. Fisher and E. C. Kehr, for respondent.

MACFARLANE, J.: On the 15th day of February, 1889, an ordinance of the city of St. Louis, No. 14,798, entitled "An ordinance to provide for laying electric wires underground," was passed and approved. By section 1 permission and authority were granted the National Subway Company of Missouri, its successors and assigns, to construct, maintain and operate conduits, pipes, mains, conductors, manholes and service and supply pipes in any of the streets, alleys, squares, avenues and public highways of the city of St. Louis, for the term of 35 consecutive years. The objects are declared to be that of "distributing and maintaining line or lines of electric and other wires, together with all necessary feeders, outlets, service wires or other electrical conductors to be used for the transmission of electricity for any and all purposes." It was further provided that, before said company, its successors or assigns, should lay any conduits or pipes in any of the streets, it should submit to the board of public improvements its plans, and the same should be approved. Section 2 prescribed the manner and depth in which conduits and pipes should be laid in the streets. Section 3 required the work to be done with the least possible injury or delay to the public, and that the streets be left in proper condition. Section 4 required the deposit of $1,000, to secure the proper repair of streets, and imposed a penalty for neglect to repair. Section 5, the corporation is declared to be a common carrier, and is required to permit any person or persons, company or companies, to use said system of underground conduits upon terms agreed upon by the respective parties, and in case of a failure to agree, arbitraVOL. VI-5.