Argument for Appellant. 224 U.S. guidance of the telegraph company in the operations of its business within the city, but exposes the operations of the company to the arbitrary direction of the officers of the city without any definite rules to guide the officers in the discharge of their duties. The telegraph company is subject to such necessary provisions respecting its buildings, poles and wires which the comfort and convenience of the community may require, West. Un. Tel. Co. v. Pendleton, 122 U. S. 359, but it is not exposed to the arbitrary discretion of any officer of the city with respect to the operations of its lines. Neither the city nor the State can prevent it from operating within their limits by any form of legislation whatever. Pensacola Tel. Co. v. West. Un. Tel. Co., 96 U. S. 1; Baltimore v. Radecke, 49 Maryland, 217; Anderson v. Wellington, 40 Kansas, 173; Garrabad v. Dering, 84 Wisconsin, 585; State Center v. Barenstein, 66 Iowa, 249; Winthrop v. New England Chocolate Co., 180 Massachusetts, 464; Barthet v. New Orleans, 24 Fed. Rep. 363; Frazee's Case, 63 Michigan, 396; Chicago v. Trotter, 136 Illinois, 430; Lumber Co. v. Cicero, 176 Illinois, 9; Newton v. Belger, 10 N. E. Rep. 464; State v. Tenant, 14 S. E. Rep. 387; Sioux Falls v. Kirby, 60 N. W. Rep. 156; Boyd v. Frankfort, 77 S. W. Rep. 669; Omaha Gas Co. v. Withnell, 110 N. W. Rep. 680; Robison v. Miner, 37 N. W. Rep. 21; State v. Mahner, 9 So. Rep. 480; May v. People, 27 Pac. Rep. 1010; St. Louis v. Russell, 22 S. W. Rep. 470; Noel v. People, 58 N. E. Rep. 616; Elkhart v. Murray, 165 Indiana, 304; Montgomery v. West, 42 So. Rep. 1000. The ordinance imposes excessive fines and penalties for the failure to obey the arbitrary orders of the city officials in matters concerning which the company has no guide except the direction of these officers. Ex parte Young, 209 U. S. 123; Cotting v. Kansas City Stock Yards, 183 U. S. 79. The ordinance requires the company to furnish to the city large and extensive facilities for the doing of the city's 224 U.S. Argument for Appellant. business without compensation or reward therefor, and such compulsion is not a legitimate exercise of the police power. For instances in which license fees have been declared unconstitutional or illegal see 2 Dillon on Municipal Corporations, 5th ed., § 661; State v. Bean, 91 No. Car. 554; State v. Hoboken, 33 N. J. L. 280; Telephone Co. v. Sheboygan, 111 Wisconsin, 23; Muhlenbrinck v. Long Branch, 42 N. J. L. 364; Van Hook v. Selma, 70 Alabama, 361; Fort Smith v. Ayers, 43 Arkansas, 82; New Haven v. Water Co., 44 Connecticut, 106. The placing of a cable containing one or a dozen or any greater number of wires within the conduit can require no more work in the issuing of a license therefor, or in the inspection thereof, than if only one wire were placed therein, and in the ordinance in question we have the identical graduation of fees which was the leading reason causing the Connecticut Supreme Court to hold an ordinance void. Jackson v. Newman, 59 Mississippi, 385; Baltimore v. Harlem Stage Co., 59 Maryland, 330; City of Ottumwa v. Zekind, 64 N. W. Rep. 646; New York v. Hexamer, 59 App. Div. 4; State v. Glavin, 34 Atl. Rep. 708; Welch v. Hotchkiss, 39 Connecticut, 143; Allegan v. Day, 42 N. W. Rep. 977. In this case the license charges are made purely as measures for collecting revenue for the city and as a punishment against the telegraph company for endeavoring to protect its rights. The claim of the city to require reservation of space upon poles for overhead wires cannot be sustained, nor can its demand be sustained that the company, in placing its wires underground, furnish all the material and construct this expensive work and set apart at least one duct for the use of the city free of charge therefor. The ordinance respecting underground wires requires the company to construct property which may be available for others to use, and which it is not permitted to use Argument for Appellant. 224 U.S. without the consent of the city, and which may never be used. The ordinance imposes illegal conditions, restrictions, expenses and burdens as conditions of the right to use the streets of the City of Richmond, which right is secured to the telegraph company by the act of Congress of 1866, subject only to the compliance with reasonable police regulations for the protection and convenience of the inhabitants of the city. Within these underground limits, with manholes placed by the telegraph company at each block, the total cost of inspection in order to ascertain that the conduits are maintained in a safe and proper condition would be practically nothing. The charge of $2.00 per mile, therefore, cannot be maintained upon the pretext of the expense of inspection, because no such expense would be incurred by the city. West. Un. Tel. Co. v. New Hope, 187 U. S. 419; Atl. & Pac. Tel. Co. v. Philadelphia, 190 U. S. 161; Postal Tel. Co. v. New Hope, 192 U. S. 55, do not sustain the contentions of the city in this respect. The ordinance seeks to put limits upon the right of the telegraph company to use the streets, and to require the abandonment of the use of the streets at the demand of the city, while the act of 1866 secures to the telegraph company the full and unlimited right to use the streets subject only to fair and reasonable regulations by the city. Pensacola Tel. Co. v. West. Un. Tel. Co., 96 U. S. 1; St. Louis v. West. Un. Tel. Co., 148 U. S. 92; Leloup v. Port of Mobile, 127 U. S. 640. The evident design of the preparation and passage of the ordinance was to compel the telegraph and telephone companies affected by it, to submit absolutely to the control of the city within the limits of the city; that is manifest from an examination of practically every section of the ordinance, and the question which we now present is: Can the city thus limit and control the operations of the telegraph company engaged in interstate commerce agency of the Federal Government, and compel it to submit in all essentials to the terms the city has set forth in this ordinance the same as the City of Richmond has compelled the Southern Bell Telephone Company to submit to it, the latter company not being invested with any of the rights conferred by the act of Congress of July 24, 1866? This question can only be answered in the negative. The definition as to what constitutes a proper, as distinguished from an improper, delegation of power under the authorities is perhaps not an easy one to make, but it is clear, that, with respect to this ordinance, it is not necessary that a close analysis of the authorities be made in order to discover the dividing line, because this ordinance goes so far beyond what is proper. United States v. Grimaud, 220 U. S. 506; Field v. Clark, 143 U. S. 694. Mr. H. R. Pollard for appellee. MR. JUSTICE HOLMES delivered the opinion to the court. This is a bill in equity filed on June 21, 1904, to restrain the enforcement of an ordinance of September 10, 1895; codified as chapter 88 of the ordinances of Richmond, and amended March 15, 1902, and December 18, 1903. The plaintiff alleges that the ordinance infringes its rights under the act of July 24, 1866, c. 230, 14 Stat. 221 (Rev. Stats., §§ 5263, et seq.), and under Article I, § 8 (the commerce clause), and the Fourteenth Amendment of the Constitution of the United States. The Circuit Court dismissed the bill, 178 Fed. Rep. 310, and the plaintiff appealed. The act of Congress gives to telegraph companies that accept its provisions the right to construct, maintain and operate lines over the post-roads of the United States, such as the streets of Richmond concerned are admitted to be. Rev. Stats., § 3964. Act of March 1, Opinion of the Court. 224 U.S. 1884, c. 9, 23 Stat. 3. Some of the objections to the ordinance are based upon this statute and some are not; we take them as they come. By § 1 poles and wires are not to be put up 'until the City Engineer shall have first determined the size, quality, character, number, location, condition, appearance, and manner of erection of' the same. By § 4 the Committee on Streets may require permission to be given to others to place upon the poles light current wires which in the Committee's opinion will not unreasonably interfere with the owners' business; terms, if not agreed upon, to be submitted to arbitration. By § 15 the Chief of the Fire Department and the Superintendent of Fire Alarm and Police Telegraph are to inspect poles and wires, and if a pole is unsafe, or the attachments, or insulations, etc., are unsuitable or unsafe, are to require them to be altered or replaced and removed, with a fine for each day's failure to obey the order. By § 26 violation of any provision, or failure to obey any requirement made under the ordinance by the City Engineer or the just named Superintendent or Chief, if not specially fined, is to be fined from ten to five hundred dollars a day, by the Police Justice. Finally by § 28, as amended in 1903, all overhead wires within a certain territory are to be removed, and within two months plans for conduits are to be submitted to the Committee on Streets and Shockoe Creek, showing location, plan, size, construction and material. These plans may be altered or amended by the Committee and when satisfactory to it are to be followed by the owner of the wires in a manner satisfactory to the City Engineer. The pavements are to be replaced and kept in repair to his satisfaction and the city saved harmless from damages. The conduits are to provide for an increase of 30 per cent, not to be occupied by third parties without consent of the Committee and compensation, but the wires of the city to be carried free, one duct being |