by the state of Missour" with relator, which was not, nor is, subject to alteration, suspension, or repeal by the state of Missouri, or by any municipality thereof; that said city of St. Louis had not, nor has, lawful power, by ordinance or otherwise, to impair the obligation of said contract, nor to abridge or interfere with the full exercise by relator of any corporate franchise thereby granted to it; that the enforcement against said relator of said provisions of said ordinances of said city of St. Louis would be a denial to relator of its corporate rights and franchises aforesaid, and would impair the obligation of the said contract of the said state of Missouri contained in relator's charter as amended. and would be in contravention of section 15 of article 2 of the constitution of Missouri of 1875, forbidding the general assembly to pass any law impairing the obligation of

provements will advertise for five days previous to a day set for hearing objections or arguments in favor of placing the said poles in the alley. If, after due consideration, the board of public improvements are of the opinion that the placing of poles for the purposes aforesaid is practicable, such poles shall be placed along said alley instead of along the street named in application. Where the poles are set in any alley they shall be located as near the side lines of the alley as practicable, and in such a manner as not to incommode the public or the adjoining proprietors or residents.

Sec. 609. The poles used as herein provided shall be of sound timber, not less than five inches in diameter, at the upper end, straight, shapely, and of uniform size, neatly pianed or shaved, and thoroughly painted with two coats of lead and oil paint, of such color as may be directed by the board of public improvements, and be supplied with iron steps, commencing twelve feet from the surface of the ground and reaching to the arms supporting the wires, tubes or cables; said wires, tubes or cables shall be run at a height not less than twenty-five feet above the grade of the street. Whenever the poles are erected on a street they shall be placed, in all cases, when practicable, on the outer edge of the sidewalk, just inside the curbstone and on the line dividing the lots one from the other, and in no case be so placed as to obstruct the drainage of the streets, or interfere with or damage in any way the curbstones, trees or other public or private property on the line of the street or alley or public place where such pole shall be erected.

Sec. 610. Any person or persons, corporation or association, having made excavations in the streets, alleys or public places of the city of St. Louis for the purposes aforesaid, shall replace the streets, alleys or public places in such manner and in accordance with such regulations as may from time to time be prescribed by ordinance or by the board of public improvements, to the satisfaction of the street commissioners.

Sec. 611. The right is hereby reserved to the board of public improvements at any time to direct any alterations in the location of said poles, and also in the height at which the wires, tubes or cables shall run: but before any alteration is made, at least five days' notice in writing shall be given to the person or persons, or the president or the officer in charge of the company affected by the proposed alteration, and reasonable opportunity shall be afforded the representative of such company, or any citizen interested, to be heard in regard thereto. when any such alteration shall be ordered, the said company shall within five days thereafter commence such alterations and complete the

But

contracts, and also section 10 of article 1 of the constitution of the United States, forbidding any state to pass any such law, each of which constitutional provisions is hereby referred to, and relied on by relator for the protection of its corporate rights and franchises aforesaid in this behalf.

"Relator further shows to the court that the only condition annexed by its charter, as amended, to the exercise by relator of its right to establish and lay down in said city all pipes, fixtures, or other thing properly required in order to carry on relator's said lighting business, is that the same shall be done with as much dispatch, and as little inconvenience to the public, as possible, and avers, not only that in making its arrangements and preparations to lay its wires underground along and under the streets of said city as in its petition in this behalf

same as soon as practicable thereafter; and upon failure so to do, it shall be deemed guilty of a misdemeanor, and punished as hereafter provided.

Sec. 612. No person or persons, corporation or association, shall be entitled to any of the privileges conferred by this article, except upon the following conditions: That said person or persons, corporation or association, before availing himself or itself of any of the rights or privileges granted by this article shall file with the city register his or its acceptance of all the terms of this article, and agree therein that he or it will file with the comptroller of the city, on the first days of January and July of each year, a statement of his or its gross receipts from his or its business arising from supplying electricity for light or power for the six months next preceding such statement, which shall be sworn to by such person or persons, or the president or secretary of such corporation or association; and further agree that he or it will, at the time of filing said statement with the comptroller, pay into the city treasury two and one-half per cent. on the amount of such gross receipts up to the year eighteen hundred ninety, and five per cent. on the amount of gross receipts thereafter. And said person or persons, or corporation or association, shall, at the time of filing said acceptance, also file with the city register his or its penal bond in the sum of twenty thousand dollars with two or more good and sufficient securities, to be approved by the mayor and council, conditioned that he or it will comply with all the conditions of this article, or any ordinance which may be hereafter passed, regulating the placing of wires, tubes, or cables in the streets and alleys for the purposes named therein; that he or it will comply with all the regulations made by the board of public improvements having reference to the subject embraced in this article or any ordinance herein named; that he or it will make the statements and payments required by the provisions of this section, and will save the city of St. Louis harmless and indemnified from all loss, cost or damage by reason of the exercise of any of the privileges granted by this article or any ordinance which may be hereafter passed relating to the subject-matter of this article.

Sec. 613. Any person or persons, corporation or association which, or any president, manager. superintendent or officer in charge of any corporation or association who shall violate or fail to comply with any of the provisions of this article, shall be deemed guilty of a misdemeanor, and upon conviction thereof. be fined not less than fifty dollars, nor more than five hundred dollars.

Sec. 614. The city reserves the right to alter, amend or repeal this article at any time.

alleged, and in applying to respondent, as street commissioner of said city, for a permit to make the necessary excavation therefor, relator has fulfilled every condition to which it was or is lawfully subject in that behalf, but also that respondent, in refusing to relator such permit, did not allege as a ground for such refusal, nor did in fact refuse such permit for the reason, that, by laying its wires under ground in the manner by it proposed, relator would cause any inconvenience to the public, but expressly and unconditionally refused to permit relator to make any excavation in any street of said city.

"Relator shows to the court that as against this relator the said ordinances and provisions above mentioned are not valid, legal, or binding enactments, nor constitute any defense to this proceeding:

"Because, as relator avers, said provisions are not, so far as relator's rights are concerned, lawful or reasonable regulations of the use of the streets of said city, but were intended to, and do, prohibit relator from exercising its said charter rights and powers except upon compliance by relator with conditions which the city of St. Louis has not, nor has the municipal assembly thereof, any lawful right or power to impose on relator in that behalf, including as one of said conditions that relator shall first be duly authorized thereto by the municipal assembly, thereby impairing the obligation of the contract contained in relator's charter as amended.

"Because the enforcement against relator by said city, or any officer thereof, of the conditions prescribed by said ordinances, would not be a lawful or reasonable exercise of the power of said city, under its charter, to regulate the use of its streets, or of the police power of said city, but is an attempt by said city, under control of its charter powers, to compel relator to enter into the obligations, and to pay to said city, from time to time, the tax of five per cent. upon the gross annual receipts from relator's business prescribed by section 590, art. 2, c. 15, Rev. Ord. 1887, re-enacted as section 612, art. 2, c. 15, Rev. Ord. 1892, above mentioned; forasmuch as it is provided by said section 590, art. 2, c. 15, Rev. Ord. 1887, re-enacted as section 612, art. 2, c. 15, Rev. Ord. 1892, that no person or persons, corporation or association, shall be entitled to any of the privileges conferred by said article 2, c. 15, except upon fulfilling the several conditions in said section 612 prescribed, as herein before set forth.

"Because among the conditions prescribed by said section 590, re-enacted as section 612, relator would be compelled, before availing itself of any of the rights or privileges mentioned in said article 2, c. 15, Rev. Ord. 1887, re-enacted as article 2, c. 15, Rev. Ord. 1892, to file with the city register its penal bond, in the sum of twenty thousand dollars, conditioned that relator will comply with all the

conditions of said article 2, or with any ordinance which might thereafter be passed, and will comply with all regulations which may be made by the board of public improvements having reference to the subject-matter embraced in said article 2, or any ordinance therein named, all which requirements and conditions are a denial of relator's rights under its charter, and impair the obligation of the contract contained therein as aforesaid.

"Because said article 2, c. 15, Rev. Ord. 1887, re-enacted as article 2, c. 15, Rev. Ord. 1892, purports to authorize the board of public improvements of said city, in granting a permit for the use or occupation of the streets, alleys, and public places of said city for the purposes therein mentioned, to prescribe such restrictions, regulations, and qualifications as said board may think fit in respect of the use of said streets, alleys, and public places, and requires every person or corporation obtaining such permit, as a condition of availing itself of the privileges mentioned in said article 2, to agree to comply with all such regulations made by said board, whereas the power to regulate the use of the streets of said city, granted (clause 2, § 26, art. 3, of its charter), is granted only to the mayor and assembly of said city, to be exercised by ordinance not inconsistent with the constitution or any law of this state, or with said charter, and does not authorize the said mayor and municipal assembly, or either of them, by ordinance or otherwise, to delegate to the board of public improvements of said city the power to make regulations for the use of said streets. Wherefore relator says that said requirements and said condition are unlawful and void.

"And relator says that the several conditions and requirements prescribed in said article 2, c. 15, Rev. Ord. 1887, as amended and re-enacted in article 2, c. 15, Rev. Ord. 1892, are not independent of each other, but are so framed as to subject relator, its officers and agents, to the penalties prescribed in section 591, Rev. Ord. 1887, re-enacted as section 613, Rev. Ord. 1892, unless, before placing along, across, or under any street of the city of St. Louis, any wires, such as herein before mentioned, it (said relator) shall not only have obtained authority so to do from the municipal assembly of the city of St. Louis, but shall also have filed in the office of the board of public improvements of said city an application therefor, such as prescribed in section 583, Rev. Ord. 1887, reenacted as section 605, Rev. Ord. 1892, and shall have obtained a permit therefor from said board, with such restrictions, regulations, and qualifications as by it prescribed, and shall also have filed with the city reg ister its acceptance of all the terms of said article 2, c. 15, and shall therein agree, as required by section 590, Rev. Ord. 1887, r enacted as section 612, Rev. Ord. 1892, to file with the comptroller of said city sworn

semiannual statements of its gross receipts from its business, and to pay to the city treasurer a tax of five per cent. upon the amount of such gross receipts, and shall also have filed with the city register its bond, in the sum of twenty thousand dollars, conditioned as prescribed in said section 590, Rev. Ord. 1887, re-enacted as section 612, Rev. Ord. 1892, all which requirements and conditions are a denial of relator's rights under its charter, and impair the obligation of the contract contained therein as aforesaid."

To this traverse respondent filed a general demurrer, assigning also special grounds.

Subsequently the city of St. Louis was made a party, entered its appearance, and adopted as its own the return of the street commissioner, and his demurrer to the trav

erse.

The demurrer was then sustained by the supreme court, "for the reasons given in the opinion heretofore rendered in this cause, to which reference is hereby made as a part of this judgment," and judgment was again entered denying the peremptory writ.

A writ of error from this court was allowed by the chief justice of Missouri. The opinion of the state court forms part of the record, and is reported in 130 Mo. 10, 31 S. W. 594.

The court in that opinion stated that on the pleadings the following issues of law were fairly framed:

"First. Is the act of March 26, 1868, unconstitutional, as being in conflict with section 2, article 8, of the constitution of Missouri of 1865?

"Second. Is said act void as being in conflict with section 25 of article 4 of said constitution?

"Third. Did the charter of relator expire by limitation at the end of thirty years from the date of the act of March 2, 1857?

"Fourth. Do the powers granted relator include the right to manufacture, sell, or distribute electricity for lighting purposes?

"Fifth. Has relator the right, under its charter, to place its wires underground, without the assent of the municipal authorities, and without compliance with the requirements of the valid ordinances of the city?"

But the court declined to express an opinion on "any question involving the right of relator to exercise the rights or enjoy the franchises which appear to have been granted under the acts of the general assembly mentioned in the statement," or "to inquire whether the right to use electricity for making light was included under the terms 'substance or material,' as used in the charter," and confined itself "to the question whether relator has a vested right to place its electric wires under the surface of the streets without the assent of the municipal authorities thereof, and without compliance with valid ordinances of the city."

And this question, for reasons given, the supreme court determined in the negative, and held that "respondent, under his official duties

as street commissioner, properly refused to grant the permit demanded, unless relator first complied with the requirements of the valid ordinances then in force."

Henry Hitchcock and Isaac H. Lionberger, for plaintiff in error. W. C. Marshall, for defendants in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

* Mandamus lies to compel a party to do that which it is his duty to do, but can confer no new authority, and the party to be coerced must have the power to perform the act. Taxing Dist. v. Loague, 129 U. S. 493, 501, 9 Sup. Ct. 327.

On the facts disclosed by the record, was it the duty of the street commissioner to issue a permit to the company to make excavations on Broadway, so that it might place electric wires under the surface of the street?

The supreme court of the state held that it was not the duty of the street commissioner to do so. Did that court in so holding give effect to ordinances impairing the obligations of the contract created by the company's charter?

Assuming the charter to be in force, as contended, the company was authorized to light the city, and to lay down pipes for that purpose, "with as much dispatch, and as little inconvenience to the public, as possible." It originally furnished light by means of gas through underground pipes, and when electricity came into use it furnished electric light through overhead wires. It now sought to put these electric wires under the surface, and it insisted that it had a vested right to do this, without being controlled by the municipal authorities.

Subsequently to the passage of the acts of 1857 and 1868, a city charter had been adopted, whereby the state vested the city with the power to regulate the use of the streets, and pass ordinances deemed expedient "in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures."

The board of public improvements of the city of St. Louis, consisting of a president, the street commissioner, the sewer commissioner, the water commissioner, the harbor and wharf commissioner, and the park commissioner, has existed for many years under the charter and ordinances of that city. Each of these commissioners is the head of the department indicated by the title of the office, and has special charge thereof, but subject to the general control of the board; and the board is charged with the duty, among other things, of furnishing data and information to the municipal assembly of the city in respect of matters with which it is called upon *to deal, preparing and recommending ordi nances for the improvement and lighting of the streets, and establishing regulations for

excavations and the laying of gas pipes in the streets, etc. Rev. Ord. 1892, p. 976; Rev. Ord. 1887, p. 893; Rev. Ord. 1881, p. 716.

The street commissioner had primary jurisdiction over streets and highways, and section 568, art. 1, c. 15, of the Revised Ordinance of 1887, which article treated of excavations in streets and public places for various purposes, provided that "no person shall make or cause to be made any excavation on any public street, highway or alley, without written permission of the street commissioner so to do, except public work done under the authority of the water or sewer commissioner, who at the time of ordering any such excavating shall notify the street commissioner of the same."

By sections 581-583 et seq., article 2 of the same chapter, wires, tubes, or cables carrying electricity for the production of light or power were to be placed above or below the surface of the ground of streets, alleys, or public places, and secured in such manner as prescribed by the board of public improvements; and that board, on the filing of an application stating the streets, alleys, and public places desired to be occupied, and the manner in which the wires, tubes, or cables were to be secured, were authorized to grant a permit for such occupancy, with such restrictions, regulations, and qualifications as the board might designate, etc. These were sections of Ordinance No. 12,723. See Rev. Ord. 1887, p. 652.

Section 590, art. 1, c. 15, of the Revised Ordinance of 1892, was the same as section 568, Rev. Ord. 1887, and sections 603, 604, et seq., of article 2 of that chapter, quoted ante. corresponded substantially with sections 581 et seq. of the ordinance of 1887. Rev. Ord. 1892, p. 660.

Section 2721, c. 42, of the Revised Statutes of Missouri of 1889 (volume 1, p. 693), provided: "Companies organized under the provisions of this article, for the purpose of constructing and maintaining telephone or magnetic telegraph lines, are authorized to set their poles, piers, abutments, wires and other fixtures along, across or under any of the public roads, streets and waters of this state, in such manner as not to incommode the public in the use of such roads, streets and waters: provided, any telegraph or telephone company desiring to place their wires and other fixtures under ground, in any city, they shall first obtain consent from said city through the municipal authorities thereof."

The company asserted by its pleadings that it had never accepted the provisions of Ordiuance 12,723, and the subsequent ordinances, and had never obtained the consent of the municipal assembly to occupy the streets with electric wires laid under their surface. Nor had the company ever applied to the board of public improvements for a permit to occupy Broadway with electric wires laid under the surface of that street.

But the company asserted that the only lim

itation on its power to so occupy the streets was that the work should be done "with as much dispatch, and as little inconvenience to the public, as possible."

And, admitting that it sought to excavate with the view to occupy the street with electric wires laid under the surface, the company demanded the writ of mandamus to compel the street commissioner to issue a permit allowing it to excavate for that purpose.

The supreme court held that the grant of the state to the company, "though construed to include the right to use electricity for illuminating purposes in respect to such right, was taken subject to reasonable regulations as to its use, and the power to regulate has been delegated to the city of St. Louis. Under its general public power the city has the right to require compliance with reasonable regulations as a condition to using its streets by electric wires."

In view of the want of knowledge of the art of producing light by electricity when the franchise was granted, the court thought that "it would be most unwarrantable to imply, not only that relator had the right, under the general words used in the act of incorporation, to use electricity for lighting purposes, but that it also had the right to adopt its own methods for exercising that power, regardless of the paramount rights of the public to the use of the streets. The power delegated to the city to regulate the use of its streets existed before the art of lighting by electricity was known, or at least before relator adopted it; and the art should be exercised, if at all, under the powers thus in force when it was brought into use."

Considering the danger to life and property from electric wires when charged, it seemed to the court too plain for argument that the city should have the right to direct the manner in which their use should be exercised; and especially when more than one method was open, and the rights and safety of the public were more or less affected by either.

Again, many companies used electric wires for various purposes; and to accommodate them all, and prevent monopolies in the use of the streets, it appeared absolutely necessary that the municipal authorities should have the right to direct the manner in which wires should be placed underground.

The court was of opinion that it would be time enough for the company to complain when its rights were distinctly infringed, and held that the street commissioner "properly refused to grant the permit demanded unless relator first complied with the requirements of the valid ordinances then in force."

Obviously the supreme court declined to enter on a discussion as to what were and what were not valid ordinances as respected the company, because the record showed that the company denied that it was subject to any control by the municipal authorities, and claimed that all that was required of it by its charter was to do the work with as much dis

patch, and as little inconvenience, as possible. It had made no application to the municipal assembly, directly or through the board of public improvements, for authority to proceed.

It had not filed any application with the board of public improvements giving details of the streets it wished to occupy, and the manner in which the wires, etc., were to be secured, supported, and insulated, and a plat of the route, nor asked that board for a permit for the occupancy it desired.

Whatever objections the company may have been entitled to raise to particular provisions of the ordinances, in denial of their applicability or validity, it took no action whatever, so far as this record shows, calculated to bring such matters to a distinct issue.

The street commissioner had no power, under the charter and ordinances, to issue the permit requested, in the absence of the assent of the board of public improvements, which had general control; and the court could not command him to do that which it was not his official duty to perform.

Judgment to that effect in itself involved no federal question, for confessedly there was no contract right that leave to excavate should be given by a particular officer; but we concur with the conclusion of the supreme court that the company was subject to reasonable regulations in the exercise of the police powers of the city, and, so far as that involved any federal question, such question was correctly decided. People v. Squire, 145 U. S. 175, 12 Sup. Ct. 8S0; St. Louis v. Telegraph Co., 148 U. S. 92, 13 Sup. Ct. 485; Id., 149 U. S. 465, 13 Sup. Ct. 990.

We are unable to accede to the contention that the company was entitled, by contract with the state, to lay electric wires underground without reference to the directions or regulations of the city on that subject, or that the street commissioner was obliged to permit it to excavate the streets for that purpose without the assent of the board of public improvements or of the municipal assembly, or effort to obtain either, on the mere averment of the company that it fears it might thereby subject itself to requirements from which it insists it was exempted by the terms of its charter.

If the company, as it asserted, possessed the right to place electric wires beneath the surface of the streets, that right was subject to such reasonable regulations as the city deemed best to make for the public safety and convenience, and the duty rested on the company to comply with them.

If requirements were exacted or duties imposed by the ordinances, which, if enforced, would have impaired the obligations of the company's contract, this did not relieve the company from offering to do those things which it was lawfully bound to do.

The exemption of the company from requirements inconsistent with its charter could not operate to relieve it from submitting it18 S.C.-33

self to such police regulations as the city might lawfully impose. And until it had complied, or offered to comply, with regulations to which it was bound to conform, it was not in position to assert that its charter rights were invaded, because of other regulations, which, though applicable to other companies, it contended would be invalid if applied to it.

The supreme court of Missouri did not feel called on to define in advance what might or might not be lawful requirements, and there is certainly nothing in this record compelling us to do so.

It must be remembered that the case does not come before us from the circuit court. This is a writ of error to revise the judgment of the highest tribunal of a state, and this we cannot do unless federal questions have been erroneously disposed of. Judgment affirmed.

(170 U. S. 57)

CHICAGO, B. & Q. R. CO. v. STATE OF NEBRASKA ex rel. CITY OF ОМАНА.

(April 11, 1898.) No. 178.

SUPREME COURT JURISDICTION-ERROR TO STATE COURTS-CONSTITUTIONAL LAW-OBLIGATION OF CONTRACTS-POLICE POWER-EQUAL PROTECTION OF LAWS.

1. In mandamus to compel a railroad company to repair a viaduct in a city in accordance with a state statute, the company set up in its answer that, by certain provisions of its charter, of the general laws of the state, and of certain city ordinances, a contract was created between it and the city in respect to the viaduct in question, and that the obligation there of would be violated by the enforcement of the act under which the proceedings were brought. This defense was overruled by the trial court, and by the state supreme court. Held, that a federal question was specifically presented, so as to give the federal supreme court jurisdiction to review it.

2. The supreme court, when reviewing the judgment of a state court upholding a state statute alleged to be in violation of the contract clause of the constitution, possesses paramount authority to determine for itself the existence or nonexistence of the contract set up, and whether its obligation has been impaired by the state statute.

3. When corporations created for a public purpose, such as railroad companies, enter into contracts affecting the safety and welfare of the public, the presumption is that they do so with the knowledge that their agreements can. not withdraw such subjects from the police pow. er of the state; and hence such contracts are not necessarily protected by the federal constitution from subsequent state legislation modifying or annulling their provisions.

4. A contract between a city and a railroad company for sharing the expense of maintaining and repairing a viaduct, carrying a street over the railroad tracks, is one affecting the safety of the community; and the subject-matter is in the police power of the state, so that it may, by a subsequent statute, impose greater burdens upon the company without violating the contract clause of the federal constitution.

5. Where several railroad companies were using tracks passing under a viaduct in a city, some of them being lessees of the others under