pursuance thereof has occupied the streets, the municipality cannot require it to vacate the streets on the theory that it had no legal right to use them, and not in the exercise of its police power.27 The right of a telegraph company, which has accepted the provisions of the federal act of 1866, to use the streets of a municipality, is subject to reasonable municipal regulations.28 For instance, a municipality may require that positions shall be reserved upon the poles for the use of the municipality,29 and that space be left in conduits for wires of third persons, to be used upon permission by the municipality and payment of compensation,30 since this is merely another incident of the necessity for insisting upon a single system. So an ordinance applicable to all telegraph companies is not objectionable because it provides that the poles shall be subject to the determination of the city engineer as to size, number, location and manner of erection; 31 nor because it gives the municipality the right to use such poles for its fire alarm and police telegraph wires without compensation.32 The prescribing of rules and regulations to govern those erecting and maintaining poles in a street does not exhaust the police power of the municipality in regard to such poles.33 An order of a commission 27 Duluth v. Duluth Tel. Co., 84 Minn. 486, 87 N. W. 1127. 28 Western U. Tel. Co. v. Richmond, 224 U. S. 160, 56 L. Ed. 710, aff'g 178 Fed. 310, 319. Telegraph companies which have the right by the federal statute of 1866 as amended, to use the streets of a municipality are nevertheless subject to the exercise of police power by the municipality. Ganz v. Ohio Postal Telegraph Cable Co., 140 Fed. 692, rev'g 137 Fed. 947; Toledo v. Western U. Tel. Co., 107 Fed. 10, 52 L. R. A. 730; Michigan Tel. Co. v. Charlotte, 93 Fed. 11. 29 Western U. Tel. Co. v. Richmond, 224 U. S. 160, 56 L. Ed. 170, aff’g 178 Fed. 310. May require the company to permit other persons or companies to place wires on its poles upon payment of compensation where, in the judgment of the municipal committee on streets, it will not unreasonably interfere with its business. Western U. Tel. Co. v. Richmond, 178 Fed. 310, 320. Where city is authorized to make reasonable regulations of telegraph lines, a regulation. that a telegraph company shall permit the city to place its electric wires on its poles, free of charge, and that other corporations shall be allowed to place their wires there on payment of reasonable compensation, is reasonable; nor are such regulations an interference with interstate commerce. Postal Tel.-Cable Co. v. Chicopee, 207 Mass. 341, 32 L. R. A. (N. S.) 997, 93 N. E. 927. 30 Western U. Tel. Co. v. Richmond, 224 U. S. 160, 56 L. Ed. 710, aff'g 178 Fed. 310. 31 Western U. Tel. Co. v. Richmond, 178 Fed. 310, 320. 32 Western U. Tel. Co. v. Richmond, 178 Fed. 310, 321. 33 Ft. Smith v. Hunt, 72 Ark. 556, 66 L. R. A. 238, 105 Am. St. Rep. 51, 82 S. W. 163. made on behalf of a telegraph company, requiring a traction company owning its right of way, to remove its high tension power wires from dangerous proximity to the telegraph wires, is not a taking of property without due process of law.34 § 4455. Requiring wires to be put underground. Wire using companies may be compelled to place their wires underground or in subsurface conduits, when convenience or the good government of the municipality requires.35 For instance, creating an "underground district" and requiring all poles and wires in use therein to be removed from the surface, except trolley wires, and to be placed in conduits, where the underground section is the congested center of the city, is a valid exercise of the police power.36 But it has been held that requiring a telephone company to build conduits through ungraded streets in suburban parts of the city and in the open country, to carry its wires, was clearly an unreasonable exercise of the police power.37 However, it is held that a municipality cannot require wires to be put underground unless authority so to do has been delegated to it by the legislature; 38 and that municipal power to regulate the erec 34 Western U. Tel. Co. v. Burlington Traction Co., 90 Vt. 506, Ann. Cas. 1918 B 841, 99 Atl. 4, and see § 4397 et seq., supra. 35 United States. Western U. Tel. Co. v. New York, 38 Fed. 552. Missouri. State v. Murphy, 134 Mo. 548, 34 L. R. A. 369, 56 Am. St. Rep. 515, 35 S. W. 1132, 34 S. W. 51, 31 S. W. 784. Montana. Butte v. Montana Independent Tel. Co., 50 Mont. 574, 148 Pac. 384. Nebraska. Plattsmouth v. Nebraska Tel. Co., 80 Neb. 460, 14 L. R. A. (N. S.) 654, 127 Am. St. Rep. 779, 114 N. W. 588. New York. American Rapid Tel. Co. v. Hess, 125 N. Y. 641, 13 L. R. A. 454, 21 Am. St. Rep. 764, 26 N. E. 919, aff'g 12 N. Y. Supp. 536. Pennsylvania. Duquesne Light Co. v. Pittsburgh, 251 Pa. 557, Ann. Cas. 1917 E 534, 97 Atl. 85. A municipality "has the undoubted right in the exercise of the police v. Minneapolis, 81 Minn. 140, 53 L. 36 Western U. Tel. Co. v. Richmond, 178 Fed. 310, 321. 37 Northwestern Tel. Exch. Co. v. Minneapolis, 81 Minn. 140, 53 L. R. A. 175, 86' N. W. 69, 83 N. W. 527. 38 State v. Red Lodge, 30 Mont. 338, 76 Pac. 758; Geneva v. Geneva Tel. Co., 30 N. Y. Misc. 236, 62 N. Y. Supp. '172. Legislature may delegate power. People v. Squire, 107 N. Y. 593, 1 Am. St. Rep. 893, 14 N. E. 820, aff'd 145 U. S. 175, 36 L. Ed. 666. tion of poles or stringing of wires does not authorize a municipality to require the placing of wires underground.39 41 § 4456. Requiring physical connection of lines. Statutes in many of the states now expressly authorize the public service commission to order physical connection of telephone lines, under certain circumstances, where for public convenience and necessity, and such authority has been held to exist under the general power to regulate.40 Such a requirement is within the police power of the state,11 and not invalid as a taking of property without due process of law.42 Thus, requiring one telephone company to permit a rival to connect with its long distance lines for through business does not deprive it of its property without compensation where it is to receive the tolls for the use of such lines.43 It is also held that, even if there are no constitutional or statutory provisions authorizing the requiring of physical connection of telephone systems, yet "when one telephone company has opened its lines to physical connection and services for another telephone company upon certain terms, it can be required, as a state regulation within the police power, to accord the same facilities, conveniences, and uses to another or other telephone companies upon equal terms." 44 However, it is held in Ohio, under the particular wording of its statute, that where two telephone companies are competing for local business, and one of them has a long distance connection, and public necessity does not require additional long distance service, the commission has no power to require physical connection for long distance purposes.45 And it is held in California that 39 Carthage v. Central New York Telephone & Telegraph Co., 185 N. Y. 448, 113 Am. St. Rep. 932, 78 N. E. 165. 40 Pacific Telephone & Telegraph Co. v. Wright-Dickinson Hotel Co., 214 Fed. 666; Michigan State Tel. Co. v. Michigan Railroad Commission, 193 Mich. 515, 161 N. W. 240; Hooper Tel. Co. v. Nebraska Tel. Co., 96 Neb. 245, 147 N. W. 674. See also Camp Rincon Resort Co. v. Eshleman, 172 Cal. 561, 158 Pac. 186. But the order must be without discriminations, with provisions for the payment of costs, and include reasonable regulations. State v. Skagit River Telephone & Telegraph Co., 85 Wash. 29, 147 Pac. 885. 41 Milbank v. Dakota Cent. Tel. Co., VII Priv. Corp.-28 37 S. D. 504, 159 N. W. 99; Wisconsin 42 Milbank v. Dakota Cent. Tel. Co., 37 S. D. 504, 159 N. W. 99. See also Michigan State Tel. Co. v. Michigan Railroad Commission, 193 Mich. 515, 161 N. W. 240. 43 Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383, L. R. A. 1916 E 748 with note, 156 N. W. 614. 44 State v. Skagit River Telephone & Telegraph Co., 85 Wash. 29, 48, 147 Pac. 885. 45 Shafor v. Public Utilities Commission of Ohio, 94 Ohio St. 230, L. R. A. 1917 E 1080 with note, 113 N. E. 809. a statute authorizing the ordering of physical connection between telephone companies is void as applied to an order which requires a company having long distance and local service to make a physical connection for long distance service with a company competing locally, where the first company has not professed to render this kind of service, since it constitutes a taking of property without compensation, where the only compensation provided for is an apportionment of tolls.46 § 4457. Regulation of gas companies. Gas companies are quasi public corporations 47 and subject to regulation as such. The most common regulations relate to the laying of the pipes in the streets of a municipality.48 A public service commission may order a gas company to extend its mains to give service, as provided for by statute, without regard to whether the immediate returns warrant it, if prospective future returns make such an order reasonable.49 An order of a commission requiring a city gas company to extend its mains and service pipes to meet the needs of a growing community within the city cannot be deemed arbitrary or capricious, and a violation of due process, because the rate of return upon the cost of the extension will at first be lowfrom two to four per cent per annum-where it will probably soon become ample by reason of the growth of the community, and where it is not claimed that the comparatively small loss asserted will render its business as a whole unprofitable.50 46 Pacific Telephone & Telegraph Co. v. Eshleman, 166 Cal. 640, 50 L. R. A. (N. S.) 652, Ann. Cas. 1915 C 822, 137 Pac. 1119. For criticism of this case, see Pacific Telephone & Telegraph Co. v. Wright-Dickinson Hotel Co., 214 Fed. 666; Michigan State Tel. Co. v. Michigan Railroad Commission, 193 Mich. 515, 161 N. W. 240; State v. Skagit River Telephone & Telegraph Co., 85 Wash. 29, 47, 147 Pac. 885. 47 See $73, supra. 48 Requiring gas pipes to be laid in the alleys whenever practicable instead of the streets has been held reasonable. Traverse City Gas Co. v. Traverse City, 130 Mich. 17, 89 N. W. 574. But municipal prohibition against excavating a paved street to lay gas pipes is unreasonable. Northern Liberties v. Northern Liberties Gas Co., 12 Pa. St. 318. In one case it was held that an ordinance forbidding the cutting into any paved street without obtaining the consent of the property owners and filing bond, etc., was not a valid exercise of the police power as applied to a gas company that had laid pipes in the streets by virtue of a former ordinance whose conditions had been complied with. Indianapolis v. Consumers Gas Co., 140 Ind. 107, 27 L. R. A. 514, 49 Am. St. Rep. 183, 39 N. E. 433. 49 Root v. New Britain Gas Light Co., 91 Conn. 134, 99 Atl. 559. 50 People v. McCall, 245 U. S. 345, . § 4458. Regulation of pipe line companies. A pipe line company, organized to transport natural gas, cannot be compelled by the commission to extend its line into new fields.51 Furthermore, such a company is engaged in interstate commerce where it carries oil or gas from one state to another 52 § 4459. Regulation of water companies. Water companies are quasi public corporations 53 and like gas companies are subject to many police regulations relating to the use of streets by their pipes and hydrants.54 It is generally held that the municipality may require a change in the location of pipes, where public convenience or security requires it.55 Requiring a water meter to be supplied and paid for by the consumer has been held reasonable.56 Regulations compelling them to extend their mains to furnish water to inhabitants of the municipality are upheld.57 § 4460. Regulation of express companies. Express companies are common carriers and indeed are often so expressly declared by statute.58 Governmental regulation of such companies has been confined largely to regulations as to offices and the delivery of express matter. 62 L. Ed. 337, aff 'g 219 N. Y. 84, 681, Ann. Cas. 1916 E 1042, 113 N. E. 795. 51 Fidelity Title & Trust Co. v. Kansas Natural Gas Co., 219 Fed. 614. 52 See § 4392, supra. 58 See 73, supra. 54 Where use of streets is authorized by statute, borough cannot prohibit use of ungraded streets until the borough decides to grade them. Mountain Water Co. v. Emaus Borough, 43 Pa. Super. Ct. 179. 56 In re Deering, 93 N. Y. 361. Where right to determine location of water pipes has been reserved by the municipality, the location once fixed may be afterwards changed. Montgomery v. Capital City Water Co., 92 Ala. 361, 9 So. 339. May require pipes to be raised or lowered. Bryn Mawr Water Co. v. Lower Merion Tp., 15 Pa. Co. Ct. 527; Bryn Mawr Water Co. V. Lower Merion Tp., 4 Pa. Dist. 157. May require water pipes to be lowered so as to conform to a new grade. Water Com'rs of Jersey City v. Hudson, 13 N. J. Eq. 420. the Consumer cannot restrain removal of water mains and fire hydrants from near his property, notwithstanding such act will render his property practically valueless, where the municipality has determined that public welfare will be subserved by removing the mains and hydrants, there being no demand for fire protection and only one private consumer. Asher v. Hutchison Water, Light & Power Co., 66 Kan. 496, 61 L. R. A. 52, 71 Pac. 813. 56 Spring Valley Water-Works v. San Francisco, 82 Cal. 286, 6 L. R. A. 756, 16 Am. St. Rep. 116, 22 Pac. 910, 1046. 57 Lukrawka V. Spring Valley Water Co., 169 Cal. 318, Ann. Cas. 1916 D 277, 146 Pac. 640. 58 See State v. Pacific Exp. Co., 80 Neb. 823, 18 L. R. A. (N. S.) 664, 115 N. W. 619. |