as continuing and inextinguishable,1142 and further, one that cannot be surrendered or bargained away.1143 Where publie highways are occupied and used, the public authorities also retain the implied power to regulate these corporations because of their inherent power to preserve and maintain public ways for their original and primary purpose.1144 While it is true that, under modern conditions, railway, telephone and telegraph service, a supply of gas or water, electricity for light, or power, are regarded as not only conveniences but necessities and that it is impossible to distribute or supply them without a use of the public highways, yet it must be remembered that these uses of a public highway while indispensable according to present notions, are but secondary and subordinate uses.1145 The public authorities,

Const. Co., 49 N. J. Eq. 23; Western Union Tel. Co. v. City of Philadelphia (Pa.) 12 Atl. 144. Northern Liberties Com'rs v. Northern Liberties Gas Co., 12 Pa. 318; Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93.

1142 New Orleans Gas Co. V. Louisiana Light Co., 115 U. S. 650; Railroad Commission Cases, 116 U. S. 307; City of Walla Walla v. Walla Walla Water Co., 172 U. S. 1; New Memphis Gas & Light Co. v. City of New Memphis, 72 Fed. 952. But property rights cannot be destroyed under an illegal exercise of the police power. Benedict v. Columbus Construction Co., 49 N. J. Eq. 23, 23 Atl. 485. But property or vested rights cannot be destroyed by an illegal regulation under guise of the police power. State v. Columbus Gaslight & Coke Co., 34 Ohio St. 572; Zanesville v. Zanesville Gas-Light Co., 47 Ohio St. 1, 23 N. E. 55; City of Knoxville V. Knoxville Water Co., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888. See §§ 115 et seq., ante.

1143 See § 913, post.

1144 Wabash R. Co. v. City of De

fiance, 167 U. S. 88; Schmitt v. City of New Orleans, 48 La. Anu. 1440, 21 So. 24. A city council in locating a street railway has a right to designate what part of the street it can occupy. Milhau v. Sharp, 27 N. Y. 611. A resolution of the common council of New York City permitting private persons to lay down and make use of a street railway with no power reserved to rescind it and no limitation in time is a contract and not a license and is void because it grants powers which are a public trust and cannot be delegated or abridged by the corporate authorities. Montreal Park & I. R. Co. v. Town of St. Louis, 17 Rap. Jud. Que. C. S. 545. See, also, § 909,

ante.

1145 City of Mobile v. Louisville & N. R. Co., 124 Ala. 132, 26 So. 902; Chicago General R. Co. v. Chicago City R. Co., 62 Ill. App. 502; Pennsylvania Co. v. City of Chicago, 181 Ill. 289, 54 N. E. 825, 53 L. R. A. 223; Lebanon Light, Heat & Power Co. v. Leap, 139 Ind. 443, 39 N. E. 57, 29 L. R. A. 342. Laying pipes in a highway without per

therefore, can regulate, because of this legal condition and fact, such use and occupation. The numerous subordinate public corporations and public quasi corporations vary in the extent of their powers according to the purpose for which they are created by the state.1146 Their right to adopt regulations or control the use of the public highways either because of the police power or the other right just suggested will depend, therefore, upon the extent and character of the powers belonging to them and as based upon their position among governmental agencies. The legislature provides for the organization of municipal corporations proper including cities, villages and towns; and of public quasi corporations which include, ordinarily, townships, counties, and other similar organizations.1147 To each one of these, either by general legislation or by special charters, is given the power of regulating the use of public property within their jurisdiction,1148 and the statement of this broad principle necessarily includes a regulation of each separate act, of a license or grantee of the privilege of using that property or any portion of it for the purpose of constructing and operating street railway sys

1150

1152

1153

tems,1140 light,1 power, water,1151 gas, telephone or tele

mission 1S unlawful. Commonwealth v. City of Frankfort, 92 Ky. 149, 17 S. W. 287; St. Louis, I. M. & S. R. Co. v. Neely, 63 Ark. 636, 40 S. W. 130, 37 L. R. A. 616; Elmer v. Board of Chosen Freeholders of Cumberland County, 57 N. J. Law, 366, 30 Atl. 475; Thompson V. Ocean City R. Co., 60 N. J. Law, 74, 36 Atl. 1087; Coney Island, Ft. H. & B. R. Co. v. Kennedy, 15 App. Div. 588, 44 N. Y. Supp. 825; Delaware, L. & W. R. Co. v. City of Buffalo, 158 N. Y. 266, 53 N. E. 44; Wabash R. Co. v. City of Defiance, 52 Ohio St. 262; Jones v. Erie & W. V. R. Co., 169 Pa. 333, 32 Atl. 535; Potter v. Scranton Traction Co., 176 Pa. 271, 35 Atl. 188. The right, however, of a street railway to use an ordinary and usual appliance upon its track to repair an overhead wire, is for a reasonable time

paramount. San Antonio & A. P. R. Co. v. Bergsland, 12 Tex. Civ. App. 97, 34 S. W. 155; City of San Antonio v. San Antonio St. R. Co., 15 Tex. Civ. App. 1, 39 S. W. 136.

1146 Barnes v. District of Columbia, 91 U. S. 540; Laramie County Com'rs v. Albany County, 92 U. S. 310. Cooley, Const. Lim. (7th Ed.) p. 266, note 2, citing many cases. See §§ 1 et seq.

1147 City of Philadelphia v. McManes, 175 Pa. 28, 34 Atl. 331.

1148 Ghee v. Northern Union Gas Co., 158 N. Y. 510, 53 N. E. 692, reversing 34 App. Div. 551, 56 N. Y. Supp. 450; Cuyahoga County Com'rs v. Akron, B. & C. R. Co., 21 Ohio Circ. R. 769.

1149 Kennelly v. City of Jersey City, 57 N. J. Law, 293, 30 Atl. 531, 26 L. R. A. 281. The word "may" means "must" thus rendering man

graph plants; whether those supplying any of these facilities or commodities engage in the business of furnishing them for public or private use or both.

§ 913. Character of right; regulation.

Where municipal or public quasi corporations possess the power of regulation, an exercise of that power is legislative in its character and, therefore, discretionary.115 Its exercise is presumed to be within the powers of the corporation and in a lawful and proper manner and, as said in a Missouri case,1155 "In all matters pertaining to the police regulation of municipalities, their ordinances, being of the nature of legislative discretion, are prima facie reasonable." The exercise of a discretionary power is not, in the absence of fraud or a gross abuse, ordinarily subject to judicial control.1156 This principle, however, does not apply to the result of such legislative discretion.

Delegation of delegated powers. To municipal and public corporations is given by the state the right to exercise certain governmental powers. There is a delegation of this right by the state to its agent. Where these governmental powers or functions involve the exercise of judgment and discretion they can

datory that provision of Act 1893, 83 (P. L. p. 241), relative to the manner in which place shall be located and strung wires for a city railway. Columbia Elec. St. R., Light & Power Co. v. Sloan, 48 S. C. 21, 25 S. E. 898.

1150 Electric Imp. Co. v. City and County of San Francisco, 45 Fed. 593, 13 L. R. A. 131; Norwalk & S. N. Elec. Light Co. v. Common Council, 71 Conn. 381, 42 Atl. 82; Ellinwood v. City of Reedsburg, 91 Wis. 131, 64 N. W. 885.

1151 City of New Haven v. New Haven Water Co., 44 Conn. 105.

1152 See Thornton, Oil & Gas, § 480.

1153 Hershfield v. Rocky Mountain Bell Tel. Co., 12 Mont. 102; Hudson Tel. Co. v. Jersey City, 49 N. J. Law, 303.

1154 See §§ 496 et seq., ante.

1155 City of St. Louis v. Western Union Tel. Co., 63 Fed. 68, 5 Am. Electrical Cas. 50; City of Des Moines v. Des Moines Water-works Co., 95 Iowa, 348, 64 N. W. 269. The principle applied to a schedule of water rates. Brown v. Chicago Great Western R. Co., 137 Mo. 529, 38 S. W. 1099.

1156 Forman v. New Orleans & C. R. Co., 40 La. Ann. 446, 4 So. 246; Gay v. Mutual Union Tel. Co., 12 Mo. App. 485; Consolidated Traction Co. v. Elizabeth City, 58 N. J. Law, 619, 34 Atl. 146, 32 L. R. A. 170; Robinson v. Gilroy, 10 Misc. 205, 30 N. Y. Supp. 411; Sheehy v. Clausen, 26 Misc. 269, 55 N. Y. Supp. 1000. Joyce, Elec. Law, § 220, and cases cited.

1158

not be delegated but must be exercised under the immediate authority of the corporation to whom they have been originally delegated by the state.1157 The rule also obtains that governmental powers in whatever body the right to exercise which may exist cannot be surrendered or sold to corporate or natural private persons, Governmental powers are such as pertain to the sovereign to be exercised for the benefit of the public at large. It follows from an application of this principle that the right to regulate whether based upon the police power or that one which has for its purpose the protection and maintenance of public property to the uses for which acquired cannot be surrendered or disposed of by contract, license or grant to natural or corporate persons engaged in supplying the facilities or any of them under discussion,1159

1157 City of Indianapolis v. Indianapolis Gaslight Co., 66 Ind. 396. 1158 Citizens' St. R. Co. v. Jones, 34 Fed. 579; Logansport R. Co. v. City of Logansport, 114 Fed. 688; Florida Cent. & P. R. Co. v. Ocala St. & S. R. Co., 39 Fla. 306, 22 So. 692; City of Louisville v. Wible, 84 Ky. 290, 1 S. W. 605. "The power to protect, through her cities and towns, and other public agencies, the public health, the public morals and the public safety, cannot be relinquished or surrendered; for the government is bottomed upon the fundamental principle of the promotion of the peace, safety, happiness and security of its citizens. Therefore, any surrender of its power to protect the public health, the public morals, the public peace, the public safety of the citizen, would violate this fundamental principle, and tend to revolution and anarchy. The power, therefore, cannot be surrendered. The state, however, and its municipalities intrusted with the execution of this power, may provide the means of protecting the

public health. It is its duty to do so, and any means may be adopted that will effect that end, such as employing competent and trusty persons to take the matter in charge under the supervision and control of the State or City."

State v. Minnesota Transfer R. Co., 80 Minn. 108, 83 N. W. 32; State v. Bell, 34 Ohio St. 194; City of Brenham v. Water Co., 67 Tex. 542, 4 S. W. 143; Altgelt v. City of San Antonio, 81 Tex. 436, 13 L. R. A. 383. The Constitution of Texas, however, forbids the granting of exclusive franchises, North Springs Water Co. v. City of Tacoma, 21 Wash. 517, 58 Pac. 773, 47 L. R. A. 214. But see Western Sav. Fund Soc. v. City of Philadelphia, 31 Pac. 185. See §§ 112 and 115 et seq., ante.

1159 Rogers Park Water Co. V. Fergus, 180 U. S. 624, affirming 178 Ill. 571, 53 N. E. 363; Stone v. Mississippi, 101 U. S. 817; Jackson County Horse R. Co. v. Interstate Rapid Transit R. Co., 24 Fed. 306; Nash v. Lowry, 37 Minn. 261; Flynn v. Little Falls Elec. & Water Co., 74

§ 914. Subways.

As already suggested, the use of electricity for light and power, because of the high currents necessarily generated, is destructive to life and property, and the use and occupation of public highways by electric companies and also by telephone and telegraph companies in erecting poles and stringing wires may not be only an obstruction to legitimate travel,1160 a nuisance because of their size and number, but also an interference in towns and cities in the work of extinguishing fires. It follows necessarily, therefore, that because of any or all of these reasons and conditions such companies may be required or given the option either when the license is granted to them for the use of the streets, or subsequently, 1161 to lay their wires in underground conduits or subways. Laws or ordinances when properly passed having this for their purpose will be regarded as reasonable and their re

Minn. 186; State v. St. Paul City R. Co., 78 Minn. 331, 81 N. W. 200; State v. Minnesota Transfer R. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656; West Point Water Power & Land Imp. Co. v. State, 49 Neb. 223, 68 N. W. 507, reversing 49 Neb. 218, 66 N. W. 6; Wabash R. Co. v. City of Defiance, 52 Ohio St. 262, 40 N. E. 89.

Cooley, Const. Lim. (7th Ed.) p. 293. "Another and very important limitation which rests upon municipal powers is that they shall be executed by the municipality itself, or by such agencies or officers as the statute has pointed out. So far as its functions are legislative, they rest in the discretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinates or of any other authority.”

1160 See § 908, ante.

1181 Missouri v. Murphy, 170 U. S. 78; Id., 130 Mo. 10; Western Union Tel. Co. v. City of New York,

38 Fed. 552, 3 L. R. A. 449; Hooper v. Baltimore City Pass. R. Co., 85 Md. 509, 37 Atl. 359, 38 L. R. A. 509; State v. Murphy, 134 Mo. 548, 31 S. W. 784, 34 S. W. 51, 34 L. R. A. 369, 35 S. W. 1132; National Subway Co. v. City of St. Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113; Paterson R. Co. v. Grundy, 51 N. J. Eq. 213; Trustees of Presbyterian Church v. State Board of Com'rs of Electrical Subways, 55 N. J. Law, 436; United States Illuminating Co. v. Hess, 19 N. Y. State Rep. 883, 3 N. Y. Supp. 777; Postal Tel. Cable Co. v. Grant, 58 Hun, 603, 11 N. Y. Supp. 323; Electric Power Co. v. City of New York, 29 Misc. 48, 60 N. Y. Supp. 590; People v. Squire, 107 N. Y. 593, 14 N. E. 820; American Rapid Tel. Co. v. Hess, 125 N. Y. 641, 26 N. E. 919, 13 L. R. A. 454; Empire City Subway Co. v. Broadway & S. A. R. Co., 159 N. Y. 555, 54 N. E. 1092; Kaukauna Elec. Light Co. v. City of Kaukauna, 114 Wis. 327, 89 N. W. 542.