Gambar halaman
PDF
ePub

APPEAL by complainant from a decree of third, those essential to the declared purposes

the Circuit Court for Harrison County in favor of defendants in a proceeding to enjoin defendants from interfering with complainant's alleged exclusive rights to use the streets of the defendant city for operating an electric-light plant. Affirmed.

The facts are stated in the opinion. Messrs. John Bassel, Edwin Maxwell, and C. W. Lynch for appellant.

Messrs. M. F. Snider and Davis & Davis, for appellees:

The city of Clarksburg, at present, and the town of Clarksburg on the 16th day of December, 1887, could exercise the following powers and no others. "First, those granted by express words in its charter or the general statute under which it is incorporated; second, those necessarily implied in, or incident to, the powers thus expressly granted; and,

tion imposed upon the state by the franchise is weak, and not because the franchise itself, to the full extent of the obligation imposed, is not within the constitutional provision.

of the corporation,-not simply convenient, but indispensable.

Charleston v. Reed, 27 W. Va. 681, 55 Am. Rep. 336; Christie v. Malden, 23 W. Va. 667 ; Parkersburg Gas Co. v. Parkersburg, 30 W. Va. 435, 4 S. E. 650; 1 Dill. Mun. Corp. § 89.

None of the acts or laws that were in force in December, 1887, or that are in force at this time, gave the council of Clarksburg authority to grant exclusive right to the Electric Light Company to erect and operate an electric-light plant within the corporate limits of Clarksburg.

The order passed by the council December 16, 1887, attempting to grant such exclusive right, is ultra vires and void to the extent that it attempts to confer such exclusive privilege.

1 Dill. Mun. Corp. § 89.

Use of streets for railroad or street-railway tracks.

A valid ordinance or resolution of a munici But in most cases, while a franchise directly pal corporation, granting the right to lay from the legislature is essential to the exist-street-railway tracks in the street, when acence of such a privilege, it is also necessary to secure the consent of the local authorities before it can be exercised. If there is nothing in the statutes to prevent, it would seem that the municipality might grant its consent in such form that it would, even after it had been accepted and acted upon, constitute a mere revocable license, and not a contract; but, in the absence of any attempt to so qualify the consent, it is established by the great weight of authority that a valid ordinance or resolution of a municipal corporation consenting to the use of its streets for a particular purpose, when accepted and acted upon, constitutes a contract the obligation of which cannot be impaired without the consent of both parties. Many of the cases which so hold, however, do not expressly rest the irrevocable character of such contract upon the constitutional provision in question, and some of them use language indicating that they regard the municipality as bound by its contract, upon the general principles applicable to the contracts of private individuals or private corporations. There is a possible view in which that position is justified when the act revoking the contract or impairing its obligation is that of the municipality.

If that act be deemed referable to the exercise

of the private, as distinguished from the public, functions of the municipality, there is no necessity of invoking the constitutional provision, since that provision is aimed at acts of the state or one of its agencies, and not at the acts of private parties. As hereafter shown, some of the courts have expressly repudiated this view, and have referred such acts to the public functions of the municipality which it exercises as a mere agency of the state, thus making it necessary to invoke the constitutional provision; but, even if the view referring such acts to the private functions of the municipality be accepted by a court, its decision that the privilege rests in contract, and not in mere license, is sufficient to bring it, to the extent of the obligation imposed by it, within the protection of the constitutional provision, whenever it is necessary to invoke such provision; and that necessity, in any event, arises when the act assailing the contract is the direct act of the state, and not of the municipality.

cepted and acted upon, constitutes an irrevocable contract. Chicago v. Sheldon, 9 Wall. 50, 19 L. ed. 594; City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653, Affirming 56 Fed. Rep. 746, 64 Fed. Rep. 647; Coast-Line R. Co. v. Savannah, 30 Fed. Rep. 646; Citizens' Street R. Co. v. Memphis, 53 Fed. Rep. 715; Detroit Citizens' Street R. Co. v. Detroit, 22 U. S. App. 570, 26 L. R. A. 667, 64 Fed. Rep. 628, 12 C. C. A. 365; Baltimore v. Baltimore Trust & Guarantee Co. 64 Fed. Rep. 153, infra; Africa v. Knoxville, 70 Fed. Rep. 729: Birmingham & P. Mines Street R. Co. v. Birmingham Street R. Co. 79 Ala. 465, 38 Am. Rep. 615; l'armelee v. Chicago, 60 II. 267; People v. Chicago West Div. R. Co. 18 Ill. App. 125, Affirmed in 118 Ill. 113, 7 N. E. 116; Chicago & W. I. R. Co. v. Chicago, St. L. & P. R. Co. 15 Ill. App. 587; Western Paving & Supply Co. v. Citizens' Street R. Co. 128 Ind. 525, 10 L. R. A. 770, 26 N. E. 188, 28 N. E. 88, Williams v. Citizens' R. Co. 130 Ind. 71, 15 L. R. A. 64, 29 N. E. 408; City R. Co. v. Citizens' Street R. Co. (Ind.) 52 N. E. 157; Hovelman v. Kansas City Horse R. Co. 79 Mo. 632; Kansas City v. Corrigan, 86 Mo. 67; People cx rel. Davis v. Sturtevant, 9 N. Y. 263, 59 Am. Dec. 536; Davis v. New York, 14 N. Y. 506, 67 Am. Dec. 186 (arguendo); New York v. Second Ave. R. Co. 32 N. Y. 261; People v. O'Brien, 111 N. Y. 1, 2 L. R. A. 255, 18 N. E. 692, Reversing 45

Hun, 519; Brooklyn Cent. R. Co. v. Brooklyn City R. Co. 32 Barb. 358; Atty. Gen. v. New phía Pass. R. Co. v. Dougherty, 3 W. N. C. 62; York, 3 Duer, 119 (arguendo); West PhiladerAvoca v. Pittston, J. & A. Street R. Co. 7 Kulp, 470: Wright v. Milwaukee Electric R. & Light Co. 95 Wis. 29, 36 L. R. A. 47, 69 N. W. 791; State ex rel. Cream City R. Co. v. Hilbert, 72 Wis. 184, 39 N. W. 326; State er rel. Atty. Gen. v. Madison Street R. Co. 72 Wis. 612, 1 L. R. A. 771, 40 N. W. 487.

The grant of a right to enter upon and occupy a public street with the necessary tracks. poles, wires, and equipment of an electric street railway is a grant of a typical easement in property, and a right entitled to all the protection afforded to other property or contract rights. Louisville Trust Co. v. Cincinnati, 47 U. S. App. 36, 76 Fed. Rep. 296, 22 C. C. A. 334.

Many of the foregoing cases expressly refer

Where the grant is one of an immediate estate in possession the grantee must be in esse, and the deed may be avoided by showing that the grantee came into being after the delivery of the deed.

5 Am. & Eng. Enc. Law, p. 432; 3 Washb. Real Prop. 482; 2 Devlin, Deeds, § 123.

Where a corporation is created, and powers conferred, by public act, a man who enters into a contract with it which is clearly in excess of its powers as shown by the act cannot enforce the contract, for he is chargeable with knowledge of public laws, and therefore with knowledge of the powers of the corporation.

Clark, Corp. p. 174; Smith v. Cornelius, 41 W. Va. 59, 30 L. R. A. 747, 23 S. E. 599; McCormick v. Market Nat. Bank, 165 U. S. 538, 41 L. ed. 817, 17 Sup. Ct. Rep. 433; 2 Morawetz, Priv. Corp. §§ 621, 718.

to the constitutional provision, and rest their decisions as to the irrevocability of the contract upon it; and it is reasonably clear, from the language used in the others, that they also rest their decision upon it, although they do not expressly refer to it. In the following cases, however, which make the same decision as to the irrevocable and unimpairable character of a municipal grant of such a privilege to a street railway company, it is not so clear that the constitutional provision is relied upon; and the language used in some of them indicates that the act by which the contract was sought to be revoked or impaired was regarded as invalid and ineffectual for the same reason that the act of a private individual or corporation, by which he or it seeks to revoke or impair a contract without the other party's consent, is ineffectual and invalid. It is apparent from what has already been said that this distinction is not of much importance, except as it may bear upon the point whether a Federal question is involved so as to give the Federal courts jurisdiction. East St. Louis Union R. Co. v. East St. Louis, 39 Ill. App. 398; Belleville v. Citizens' Horse R. Co. 152 Ill. 171, 26 L. R. A. 681, 38 N. E. 584; Harvey v. Aurora & G. R. Co. 186 III. 283, 57 N. E. 857: Chicago General R. Co. v. Chicago City R. Co. 27 Chic. Legal News, 423, 9 Nat. Corp. Rep. 651; Ingram v. Chicago, D. & M. R. Co. 38 Iowa, 669; Des Moines v. Chicago, R. I. & P. R. Co. 41 Iowa, 569; Burlington v. Burlington Street R. Co. 49 Iowa, 144, 31 Am. Rep. 145; Des Moines City R. Co. v. Des Moines, 90 Iowa, 770, 26 L. R. A. 767, 58 N. W. 906; Nash v. Lowry, 37 Minn. 261, 33 N. W. 787: Springfield R. Co. v. Springfield, 85 Mo. 674; State ca rel. Kansas City v. Corrigan Consol. Street R. Co. 85 Mo. 263, 55 Am. Rep. 361; Milhau v. Sharp, 27 N. Y. 611, 84 Am. Dec. 314: Binghamton v. Binghamton & P. D. R. Co. 61 Hun, 479, 16 N. Y. Supp. 225; Brooklyn Elev. R. Co. v. Brooklyn, 2 App. Div. 98, 37 N. Y. Supp. 560; Asheville Street R. Co. v. Asheville, 109 N. C. 688, 14 S. E. 316; Cincinnati Street R. Co. v. Smith, 29 Ohio St. 292; Shamokin v. Shamokin Street R. Co. 178 Pa. 128, 35 Atl. 862; Houston v. Houston City Street R. Co. 83 Tex. 548, 19 S. W. 127.

So, also, municipal grants to railroad companies other than street railroad companies, when accepted and acted upon, have been held irrevocable by Port of Mobile v. Louisville & N. R. Co. 84 Ala. 115, 4 So. 106; Arcata v. Arcata & M. River R. Co. 92 Cal. 639, 28 Pac. 676; Workman v. Southern P. R. Co. (Cal.) 62 Pac. 185, 316 East St. Louis Union R. Co. v. East St. Louis, 39 Ill. App. 398; East Louisi

An injunction will not be granted to restrain the passage of an ordinance which, if carried out, will operate as an invasion of the franchise previously granted to private corporations.

Montgomery Gaslight Co. v. Montgomery, 87 Ala. 245, 4 L. R. A. 616, 6 So. 113; Murphy v. East Portland, 42 Fed. Rep. 310.

Brannon, J., delivered the opinion of the court:

On the 16th of December, 1887, the council of the town of Clarksburg passed an ordinance granting to the Clarksburg Electric Light Company the exclusive privilege for the term of twenty years to erect and operate electric light works for generating and supplying electricity for lighting the town and for use as power. Under this grant the said corporation constructed a costly and ana R. Co. v. New Orleans, 46 La. Ann. 526, 15 So. 157; Cincinnati & S. R. Co. v. Carthage, 36 Ohio St. 634, and Rio Grande R. Co. v. Brownsville, 45 Tex. 88.

Besides the cases above cited, that expressly hold that such a privilege when accepted and acted upon constitutes an irrevocable and unimpairable contract, there are many that apparently assume that doctrine:

(1) By upholding the validity of the act, attacked as impairing the privilege, upon the ground that, so far as the privilege purports to be exclusive, it is invalid. Jackson County Horse R. Co. v. Interstate Rapid Transit R. Co. 24 Fed. Rep. 306; Birmingham & P. Mines Street R. Co. v. Birmingham Street R. Co. 79 Ala. 465. 58 Am. Rep. 615; New Orleans, C. & L. R. Co. v. New Orleans, 44 La. Ann. 728, 11 So. 77; Detroit Citizens' Street R. Co. v. Detroit, 110 Mich. 384, 35 L. R. A. 859, 68 N. W. 304.

(2) By upholding the act as a legitimate exercise of the power to alter, repeal, or revoke. reserved by constitutional or legislative provision, or by the municipality. Sioux City Street R. Co. v. Sioux City, 138 U. S. 98, 34 L. ed. 898, 11 Sup. Ct. Rep. 226, 78 Iowa, 367, 39 N. W. 498, 43 N. W. 224; English v. New Haven & N. Co. 32 Conn. 243; Wilmington City R. Co. v. Wilmington & B. S. R. Co. (Del.) 46 Atl. 12; West End & A. Street R. Co. v. Atlanta Street R. Co. 49 Ga. 151; Medford & C. R. Co. v. Somerville, 111 Mass. 232; Metropolitan R. Co. v. Highland Street R. Co. 118 Mass. 290: Storrie V. Houston City Street R. Co. 92 Tex. 129, 44 L. R. A. 716, 46 S. W. 796. (3) By upholding the act :

(a) Upon the ground that the privilege is not exclusive, or so extensive as claimed. Denver & S. R. Co. v. Denver City R. Co. 2 Colo. 673; West End & A. Street R. Co. v. Atlanta Street R. Co. 49 Ga. 151: Des Moines Street R. Co. v. Des Moines Broad-Gauge Street R. Co. 73 Iowa, 513, 33 N. W. 610, 35 N. W. 602; Teachout v. Des Moines Broad-Gauge Street R. Co. 75 Iowa, 722. 35 N. W. 145; Gulf City Street R. Co. v. Galveston City R. Co. 65 Tex. 505.

(b) Upon the ground that the act is a legitimate exercise of the police power, or power to regulate the streets. to which the grant is necessarily subject. Chicago, B. & Q. R. Co. v. Nebraska er rel. Omaha, 170 U. S. 57, 42 L. ed. 948, 18 Sup. Ct. Rep. 513: Pittsburg, Ft. W. & C. R. Co. v. Chicago, 159 Ill. 369, 42 N. E. 781; Chicago, B. & Q. R. Co. v. Quincy, 139 Ill. 355, 28 N. E. 1069; Chicago, B. & Q. R. Co. v. Quincy, 136 Ill. 570, 27 N. E. 192; Indianapolis v. Navin, 151 Ind. 139, 156, 41 L. R. A. 337,

valuable plant, and has been long operating | tricity, engaged to supply private individuthe same, supplying the town and its people als in the town. These individuals erected with electricity for purposes of illumination poles in the streets to support wires for conand power. On the 12th of March, 1894, the veyance of electricity, by leave of the town Traders Company was chartered by the state council, and the said two companies were as a corporation to erect a hotel building about to obtain, or at least ask for, the auwith opera house, banking house, and offices thority from the council of Clarksburg to therein, under which the said hotel building erect poles in the streets for the conveyance has been erected in Clarksburg. On the 1st of electricity through the town for sale to its day of November, 1894, the state incorpo- people, and thereupon the Clarksburg Elecrated a company called the Traders Annex tric Light Company sued out an injunction Company, with power to erect buildings, con- restraining the Traders Company and the struct electric-light plant to light its build- Traders Annex Company and all other perings and the town of Clarksburg with elec- sons from applying to said council for the tricity. The two last-named companies to- privileges aforesaid, and restraining the city gether erected an electric light plant, and council of Clarksburg from granting to the have used the same for lighting the hotel, Traders Company and the Traders Annex opera house, bank, and other apartments in Company, jointly or severally, the privilege the buildings erected by said companies. of occupying the streets for the purpose of Said two companies, having a surplus of elec- carrying on the business of furnishing elec344, 47 N. E. 525, 51 N. E. 80; Waterloo v. Wa- | 43 L. ed. 341, 19 Sup. Ct. Rep. 77; Little Falls terloo Street R. Co. 71 Iowa, 193, 32 N. W. 329; | Electric & Water Co. v. Little Falls, 102 Fed. Wyandotte v. Corrigan, 35 Kan. 21, 10 Pac. 99; Rep. 663; Re Long Island Water Supply Co. 30 Kirby v. Citizens' R. Co. 48 Md. 168, 30 Am. Abb. N. C. 36. Rep. 455; Detroit v. Fort Wayne & B. I. R. Co. 95 Mich. 456, 20 L. R. A. 79, 54 N. W. 958; State v. Smith, 58 Minn. 35, 25 L. R. A. 759, 59 N. W. 545 Cleveland v. Cleveland Electric R. Co. 3 Ohio Dec. 92: Frankford & P. Pass. R. . Co. v. Philadelphia, 58 Pa. 119, 98 Am. Dec. 242: Spokane Street R. Co. v. Spokane, 5 Wash. 634, 32 Pac. 456; Seattle v. Columbia & P. S. R. Co 6 Wash. 379, 33 Pac. 1048.

So, also, the doctrine is apparently assumed by: Santa Rosa City R. Co. v. Central Street R. Co. (Cal.) 38 Pac. 986, in discussing the right to avoid such a franchise for breach of condition subsequent : Cape May & S. L. R. Co. V. Cape May, 35 N. J. Eq. 419, in denying an injunction to restrain the passing of an ordirance revoking such a privilege; Central City Horse R. Co. v. Fort Clark Horse R. Co. 81 III 523, holding that a city had no power to authorize one street railway company to condemn the tracks of another; and Hamilton Street R. Co. v. Hamilton. 5 Ohio C. C. 319, holding that a certain action by the city was an unwarranted interference with such a privi

[ocr errors]

But see Lake Roland Elev. R. Co. v. Baltimore. 77 Md. 352, 20 L. R. A. 126, 26 Atl. 510; Baltimore v. Baltimore Trust & Guarantee Co. 166 U. S. 673, 41 L. ed. 1160, 17 Sup. Ct. Rep. 696; and I'hiladelphia & G. Ferry Pass. R. Co.'s Appeal. 102 Pa. 123. infra.

New York v. Eighth Ave. R. Co. 43 Hun, 614, holds that if an act of the legislature were to be so construed as to supersede the liability of a street railway company to pay license fees, as provided by the agreement under which it obtained permission to construct its tracks in 'he street, it would violate the constitutiona! provision prohibiting states from passing any law impairing the obligation of a contract.

Water pipes and mains.

The franchise to lay water pipes in the streets to supply a city and its inhabitants with water, acquired by a corporation under its charter and with the consent of the city, after performance, a contract protected by the Federal Constitution. New Orleans Waterworks Co. v. Rivers, 115 U. S. 674, 29 L. ed. 525. 6 Sup. Ct. Rep. 273; St. Tammany Waterworks v. New Orleans Waterworks, 120 U. S. 64, 30 L. ed. 563, 7 Sup. Ct. Rep. 405; Walla Balla v. Walla Walla Water Co. 172 U. S. 1,

Stein V. Mobile, 49 Ala. 362, 20 Am. Rep. 283: Citizens' Water Co. V. Bridgeport Hydraulic Co. 55 Conn. 1, 10 Atl. 170; Quincy v. Bull. 106 Ill. 352; Ashland v. Wheeler, 88 Wis. 607, 60 N. W. 818,-also hold that after a grant by a city of the right to supply it and its inhabitants with water through pipes laid in the street has been accepted and acted upon, the city cannot revoke or impair it: but do not expressly refer to the constitutional provision.

Re Brooklyn, 143 N. Y. 596, 26 L. R. A. 270, 38 N. E. 983, holds that a village, by assenting to the incorporation of a company for the purpose of supplying it with water pursuant to an act authorizing incorporation for that purpose does not grant an exclusive franchise so as to preclude the municipality from obtaining water from other sources; but the court says, in the course of its argument, that whether the charter from the state, or the agreement with the town be regarded as the contract, in either case it is certainly entitled to protection against legislation which would destroy the franchise, or which would be some alteration of the charter impairing obligations.

Skaneateles Waterworks Co. v. Skaneateles, 161 N. Y. 154, 46 L. R. A. 687. 55 N. E. 562, held that the grant by a municipal corporation of a franchise to maintain and operate a system of waterworks was not exclusive, and therefore was not impaired by an act authorizing the village to acquire its own waterworks; but the court held that a subsequent act which disclosed an intent to assist the water commissioners of the village in securing customers from the company by imposing discriminating taxes was an impairment of the franchise.

And the latter point is reaffirmed and applied in Warsaw Waterworks Co. v. Warsaw, 161 N. Y. 176, 55 N. E. 486.

Westerly Waterworks v. Westerly, 75 Fed. Rep. 181, held that a town authorized by statute to construct waterworks, or to contract with others to supply water, having adopted the latter course and made a grant of the exclusive right to use the streets for the purpose of laying water pipes and supplying the inhab itants and the town with water, Impaired such contract by subsequently attempting to exercise its authority under the statute to construct a waterworks plant of its own.

White v. Meadville, 177 Pa. 643, 34 L. R. A. 567, 35 Atl. 695, also holds that a city, having

tricity to the said city and its citizens. The circuit court of Harrison county dissolved the injunction, and the electric light company appeals to this court.

The electric light company claims that the grant to it by the council of Clarksburg of the privilege of furnishing electricity and occupying the streets of the city with its poles for the distribution of electricity to its consumers constitutes a contract giving that company the sole and exclusive right to furnish electricity within the city, and that the use of the streets by any other company, or even persons, for furnishing electricity, is a violation of its rights, and that the grant by the said city to the Traders Company or the Traders Annex Company, as proposed, would be a violation and impairment of such contract, contrary to the Constitution of the United States. Upon this position-that granted a water company the right to supply it and its inhabitants with water through pipes laid in the street, could not subsequently erect and maintain a water plant of its own; but this decision rests upon the ground that the city, having chosen to contract for a supply of water, exhausted its statutory power in the premises.

Los Angeles v. Los Angeles City Water Co. 177 U. S. 558, 44 L. ed. 886, 20 Sup. Ct. Rep. 736, holds that it is not within the power of the city authorities, after leasing its waterworks, including the right to lay pipes in the streets and to sell and distribute water for domestic purposes, to impose by ordinance or otherwise an additional burden upon the exercise of such rights and privileges.

[ocr errors]
[ocr errors]
[ocr errors]

the proposed grant or franchise to the Traders Company and Traders Annex Company would be a violation of the contract subsisting between the electric light company and the city, and a violation of the Constitution of the United States-the said electric light company stakes its case in this court. The Federal Constitution (article 1, § 10) provides that "no state shall pass any law impairing the obligation of contracts." It is beyond question that a grant by a municipal corporation, under authority of the statute of a state, to a private corporation to supply a city or town with electricity for the public use, or any similar franchise, constitutes a contract, when accepted and carried out by the corporation, which is under the protection of both the state and national Constitutions. New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Louisiana Light & H. P. Mfg. Co. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep. 252.

It will be observed that the decisions in the last two cases are with reference to the franchises granted by the legislature, and do not refer to grants by municipalities.

Providence Gas Co. v. Thurber, 2 R. I. 15, 55 Am. Dec. 621, in support of its decision that gas pipes were taxable as real estate, said that the grant by the charter of a corporation of the right to lay gas pipes in the street with the consent of the local authorities creates, not a mere revocable license, but an easement or corporeal hereditament.

The doctrine of the irrevocable and unimpairable character of a franchise to lay and maintain gas pipes in the streets conferred by the charter of a corporation is impliedly recognized by Missouri er rel. Laclede Gaslight Co. v. Murphy, 170 U. S. 78, 42 L. ed. 955, 18 Sup. Ct. Rep. 505, Affirming 130 Mo. 10, 31 L. R. Á. 798, 31 S. W. 594, upholding the validity of the act attacked as impairing the franchise upon the ground that it was a legitimate exercise of the police power.

The doctrine as applied to the privilege of laying and maintaining water pipes in the streets has also been impliedly recognized by the following cases, which held that the privilege was not exclusive, and therefore was not impaired: Stein v. Bienville Water Supply Co. 141 U. S. 67, 35 L. ed. 622, 11 Sup. Ct. Rep. 892, Affirming 34 Fed. Rep. 145; Colby University v. Canandaigua, 96 Fed. Rep. 449; RockHamilton Gaslight Co. v. Hamilton, 146 C. land Water Co. v. Camden & R. Water Co. 80 S. 258, 36 L. ed. 963, 13 Sup. Ct. Rep. 90. Me. 544, 1 L. R. A. 388, 15 Atl. 785; Syracuse recognizes the doctrine as applied to a muniWater Co. v. Syracuse, 116 N. Y. 167, 5 L. R. cipal ordinance granting the exclusive priviA. 546, 22 N. E. 381; Lehigh Water Co.'s Ap-lege of laying gas pipes in the streets to suppeal, 102 Pa. 515; North Springs Water Co. v. Tacoma, 21 Wash. 517, 47 L. R. A. 214, 58 Pac. 773.

Gas pipes.

When an ordinance granting the right to lay gas pipes in the streets of a city upon certain terms and conditions has been accepted and acted upon, it becomes a binding contract Indianwithin the constitutional provision. apolis v. Consumers' Gas Trust Co. 140 Ind. 114, 27 L. R. A. 514, 39 N. E. 433.

Chicago Municipal Gas, Light & Fuel Co. v. Lake, 130 Ill. 42, 22 N. E. 616, and Toledo v. Northwestern Ohio Nat. Gas Co. 5 Ohio C. C. 557, without expressly referring to the constitutional provision, hold that a municipal ordinance granting the privilege of laying gas pipes in the street, when accepted and acted upon, constitutes an irrevocable contract.

The grant by the legislature of the exclusive privilege of establishing gas works and supplying the city and its inhabitants with gas by means of pipes laid in the streets constitutes a contract within the meaning of the Federal Constitution. Louisville Gas Co. V. Citizens' Gas Co. 115 U. S. 683, 29 L. ed. 510, 6 Sup. Ct. Rep. 265: New Orleans Gaslight Co. V.

ply the city and its inhabitants with gas, by holding that such privilege was not impaired by the erection by the municipality of its own gas works under a state law giving it power so to do.

So, also, Parkersburg Gas Co. v. Parkersburg, 30 W. Va. 435, 4 S. E. 650, recognizes the doctrine as applied to such an ordinance by upholding the act complained of upon the far as ground that the privilege. so it purported to be exclusive, was invalid. But see Norwich Gaslight Co. v. Norwich City Gas Co. 25 Conn. 19, infra.

Telegraph and telephone lines.

New Orleans v. Great Southern Teleph. & Teleg. Co. 40 La. Ann. 41, 3 So. 533; Chesapeake & P. Teleph. Co. v. Baltimore, 89 Md. 689, 43 Atl. 784, 44 Atl. 1033, infra; 'Michigan Teleg. Co. v. St. Joseph (Mich.) 47 L. R. A. 87, 30 N. W. 383; Northwestern Teleph. Exch. Co. v. Minneapolis (Minn.) 83 N. W. 527; and State, Hudson Telephone Co., Prosecutor, v. Jersey City, 49 N. J. L. 303. 8 Atl. 123.-hold that the privilege granted by a municipal corporation, to erect a telegraph or telephone line in the street, when accepted

Co. 115 U. S. 650, 29 L. ed. 516, Sup. Ct. Rep. 252; Louisville Gas Co. v. Citizens' Gas Co. 115 U. S. 683, 29 L. ed. 510, 6 Sup. Ct. Rep. 265. Therefore we do not question that the electric light company possesses a contract, and lawful vested rights under it; but to what extent? Has it the right to an exclusive franchise, effectually shutting out others from transacting a very important business, so needful to the public of the city of Clarksburg? Has that company the monopoly it claims. I shall not discuss the question whether an act of the legislature granting such an exclusive franchise would be valid, further than to say that under the great powers of a state legislature such an act would likely be valid under the cases just cited and others; but I can safely say that under multitudinous authorities the courts lean against construing statutes so as to and acted upon, constitutes an irrevocable and unimpairable contract. These cases apparently rely upon the constitutional provision.

Com. er rel. Bell Teleph. Co. v. Warwick, 185 Pa. 623, 40 Atl. 93, makes a similar decision with respect to a municipal ordinance granting a telephone company the right to lay its wires under the street, and erect terminal poles; but it is not so apparent that this case relies on the constitutional provision.

93

Michigan Telephone Co. V. Charlotte, Fed. Rep. 11, held that, assuming that an ordinance of a municipal corporation granting the right to erect a telephone line in the streets conflicted with a contract, such contract was subject to such incidental modification as results from legislation required in the public interest.

Cincinnati Inclined Plane R. Co. v. City & Suburban Teleg. Co. 48 Ohio St. 390, 12 L. R. A. 534, 27 N. E. 890, impliedly recognized the applicability of the constitutional provision to the privilege of a telephone association to construct its lines in the streets, acquired under legislative grant and municipal consent; but held that the franchise had not been impaired. See also St. Louis V. Western U. Teleg. Co. 148 U. S. 103, 37 L. ed. 385, 13 Sup. Ct. Rep. 485; Postal Teleg. Cable Co. v. Baltimore, 156 C. S. 210, 39 L. ed. 399, 15 Sup. Ct. Rep. 210; and American Rapid Teleg. Co. v. Hess, 125 N. Y. 641, 13 L. R. A. 454, 26 N. E. 919, --infra.

Electric-light poles and wires; subway.

A municipal ordinance adopted under authority of a statute granting to third persons the privilege of erecting and operating an electriclighting plant with permission to use the streets for laying wires and erecting poles upon certain conditions, which has been complied with and the plant established, is a contract within the protection of the constitutional provision against impairing the obligation of contracts. Southwest Missouri Light Co. v. Joplin, 101 Fed. Rep. 23; Levis v. Newton, 75 Fed. Rep. 884.

Monongahela v. Monongahela Electric Light Co. 3 Pa. Dist. R. 63; Rutland Electric Light Co. v. Marble City Electric Light Co. 65 Vt. 377, 20 L. R. A. 821, 26 Atl. 635; and Commereial Electric Light & P. Co. v. Tacoma, 17 Wash 661, 50 Pac. 592,-without expressly referring to the constitutional provision, hold that the consent of a city to the erection and maintenance of electric-light poles and wires in the streets cannot be abrogated or impaired at

grant, or to authorize municipal corporations to grant, such exclusive franchises. Such franchises constitute monopolies, which the law has through ages condemned, because they tie down and restrain and cripple the public right and interest, and sacrifice great public interests to the benefit and aggrandizement of the few. Still, where such rights are valid and lawful, the courts must and do protect them. I state the proposition, as sustained by authorities in all quarters, that to authorize such exclusive franchise the statute must admit of no other reasonable construction. The ordinance of Clarksburg granting to the electric light company its franchise does, in terms, make it exclusive; but had the council power to insert in the franchise the clause or section granting such exclusive right? That is our question in this case; that is the pivot of this case. Turn the mere arbitrary will of the city. See also Capital City Light & Fuel Co. v. Tallahassee (Fla.) 28 So. 310, infra.

Feople ca rel. New York Electric Lines Co. v. Squire, 107 N. Y. 593, 14 N. E. 820, Affirmed in 145 U. S. 175, 36 L. ed. 666, 12 Sup. Ct. Rep. 880, recognized the irrevocable or unimpairable character of a franchise secured by a corporation under its charter, authorizing it to maintain electric conductors under the pavements of the streets of a city, and the ordinances of the city permitting it to construct conduits and lay wires, by holding that it was not impaired by a subsequent act regulating its enjoyment.

The opinion in People ex rel. New York Electric Lines Co. v. Squire, 145 U. S. 175, 36 L. ed. 666, 12 Sup. Ct. Rep. 880, in affirming the decision in the court of appeals said: "Conceding, then, for present purposes, without deciding that such was the case," that an electric light company had a contract with a city for the laying of its wires and the construction of an underground electrical system by virtue of certain statutes and ordinances, the rights thereby acquired were subject to regulation so long as the company's essential rights were not impaired or invaded.

A privilege granted by a municipal corporation to lay a subway in the street, when acted upon, and lived up to, by the party receiving it, is in effect a contract; and the privileges secured by such a franchise are property rights which stand upon the same general basis as other property rights, and may not thereafter be withdrawn, impaired, or violated by the municipality granting them. Western U. Teleg. Co. v. Syracuse, 24 Misc. 338, 53 N. Y. Supp. 690.

A municipal ordinance granting to a subway company the right to place its wires under the surface of the street, when accepted and acted upon by the company, becomes a valid and unimpeachable contract, which cannot be invalidated or overthrown, except upon forfeiture judicially declared by some competent tribunal proceeding according to the course of the common law. Separate opinion of Sherwood, J., in State ex rel. National Subway Co. v. St. Louis, 145 Mo. 551, 42 L. R. A. 113, 46 S. W. 981.

But see Brush Electric Light Co. v. Jones Bros. Electric Co. 5 Ohio C. C. 340, infra.

Other uses.

A municipal ordinance granting permission to a railway company to erect a freight house

« SebelumnyaLanjutkan »