On the other hand, an order of a commission requiring a street car company in a large city, on a particular line, to furnish cars and seats at all times and on all ordinary occasions for all who may present themselves for transportation is unreasonable, since "one to which no transportation company can conform." 99 So a commission cannot require a street railway company, in extending its lines into new territory, to construct, equip and operate the extension in a specified manner, since that is a matter to be determined by the directors of the company.1 And, unless authority so to do has been delegated by the legislature, it has been held that a municipality has no power to compel interurban and street railway companies to light the streets occupied by their tracks.2 § 4453. Regulations of telegraph, telephone and electric light companies-In general. Telegraph, telephone and electric light companies are subject to governmental regulation, the same as other public service companies,3 and they generally are within the supervision and control of public service commissions. However, telegraph companies are not subject to state regulation which amounts to an Traction Co., 90 Vt. 506, Ann. Cas. 1918 B 841, 99 Atl. 4. 99 Puget Sound Traction, Light & Power Co. v. Reynolds, 223 Fed. .371, 378. 1 Towers v. United Rys. & Elec. Co., 126 Md. 478, 95 Atl. 170. 2 Ohio Elec. Ry. Co. v. Ottawa, 85 Ohio. St. 229, 97 N. E. 835. 3 State v. Iowa Tel. Co., 175 Iowa 607, Ann. Cas. 1917 E 539, 154 N. W. 678. "It is well settled that telegraph and telephone companies are subject to all regulations falling properly within the police power of the state or of a municipal corporation." East Boyer Tel. Co. v. Incorporated Town of Vail, 166 Iowa 226, 147 N. W. 327. "That they [telegraph companies] are common carriers of news and information, and subject to legislation as such, I have no doubt." Clark v. New Jersey Postal Tel. Co., 82 N. J. Eq. 15, 87 Atl. 640. "Telephone companies are common subject to the condition that their property shall not be taken except by due process of law." State v. Skagit Telephone & Telegraph Co., 85 Wash. 29, 45, 147 Pac. 885. Telegraph companies "are subject to regulation under legislative authority on the ground that they are impressed with a public character." Western U. Tel. Co. v. Foster, 224 Mass. 365, 372, 113 N. E. 192. 4 Western U. Tel. Co. v. Myatt, 98 Fed. 335. Particular companies as not within jurisdiction of public service commission, see § 4379, supra. undue interference with interstate commerce, but the right to regulate is not affected by the fact that telegraph or telephone instruments or appliances are patented under the federal laws. Regulations which have been held proper include those designating the location of poles, including a change in their location, even going as far as to require a removal to another street, provided the change ordered is reasonable and not merely arbitrary," fixing the height of wires crossing the street, providing for the insulation and protection of wires, requiring the placing of wires in underground conduits,10 imposing a penalty on telegraph companies for delay in sending or delivering messages,11 and many other regulations, the construction and effect of which are beyond the scope of this work. So the Massachusetts court has held that telegraph companies may be compelled by a public service commission to furnish to those properly applying therefor quotations of sales upon the New York stock exchange by means of a ticker service on the same terms that such quotations are furnished by it to other persons.12 But this decision was reversed by the United States Supreme Court on the ground that the transmission of the quotations was interstate commerce.12a § 4454. Regulations as to poles and wires. Telegraph, telephone and electric light poles and wires are erected with an implied understanding that, if the public necessity require it, they shall be changed or so regulated as to make their use of the streets as slight an inconvenience to the public as possible.13 Moreover, even if a public vice. Commonwealth Elec. Co. v. Rose, 214 Ill. 545, 73 N. E. 780, aff'g 114 Ill. App. 181. Ordinance requiring stretching of guard wires along electric cables is presumed to be reasonable. Conrad v. Springfield Consol. R. Co., 145 Ill. App. 564, aff'd 240 Ill. 12, 130 Am. St. Rep. 251, 88 N. E. 180. 10 See § 4454, infra. 11 As interference with interstate commerce, see § 4392, supra. 12 Western U. Tel. Co. v. Foster, 224 Mass. 365, 113 N. E. 192. 12a Western U. Tel. Co. v. Foster, 247 U. S. 105, 62 L. Ed. 1006. 13 Western U. Tel. Co. v. Richmond, 178 Fed. 310, 322. Reasonable rules and regulations for the erection and maintenance of the service company is granted the right by the legislature to place poles in the streets of a city, the municipality, in the exercise of its police power, may compel such poles to be placed in such manner and in such places as the public interests require; 14 and in some states the municipality is required to designate the streets on which telegraph or telephone poles shall be erected.15 So a municipality may prohibit the poles and wires of electric light companies may be adopted and enforced. The removal of those that are dangerous may be compelled. Wyandotte Electric-Light Co. v. Wyandotte, 124 Mich. 43, 82 N. W. 821; Michigan Tel. Co. v. Benton Harbor, 121 Mich. 512, 47 L. R. A. 104, 80 N. W. 386; Michigan Tel. Co. v. St. Joseph, 121 Mich. 502, 47 L. R. A. 87, 80 Am. St. Rep. 520, 80 N. W. 383. If poles placed in the streets are no longer used, their removal may be compelled by the municipality. Hempstead v. Ball Elec. Light Co., 9 N. Y. App. Div. 48, 41 N. Y. Supp. 124. 14 Monongahela City v. Mononga. hela Elec. Light Co., 12 Pa. Co. Ct. Rep. 529. A city authorized to control its streets may require the location of poles and the further occupation of its streets by a telephone company authorized by statute to erect its poles in city streets, to be only upon approval of the municipal authorities. State v. Sheboygan, 111 Wis. 23, 86 N. W. 657. 15 In Massachusetts, a statute authorizing the erection of electric telegraph lines along the highways in streets in such manner as not to incommode their use by the public' and providing that the mayor and aldermen of the municipalities through which they pass shall specify "where the posts may be located," etc., even if to be construed as mandatory as to the granting of a location for the posts, cannot be considered as mandatory in regard to electric light companies, notwithstanding statutes extend the provisions of the former statutes to electric light companies so far as applicable. Suburban Light & Power Co. v. Aldermen of Boston, 153 Mass. 200, 10 L. R. A. 497, 26 N. E. 147. In New Jersey, telegraph or telephone companies have no right to erect poles in a municipality without first obtaining from it a designation of the streets in which they shall be placed. New York & N. J. Tel. Co. v. Borough of Bound Brook, 66 N. J. L. 168, 48 Atl. 1022; Home Tel. Co. v. New Brunswick, 62 N. J. L. 172, 40 Atl. 628; New York & N. J. Tel. Co. v. East Orange, 42 N. J. Eq. 490, 8 Atl. 289 (holding requirement applicable only to lines through the municipality as distinguished from local system of lines maintained within the municipality). Common council need not, however, specify precise place where each pole shall be located. Marshall v. Bayonne, 59 N. J. L. 101, 34 Atl. 1080. Statute requiring the designation of streets by cities before poles can be erected thereon by private companies for public lighting, etc., is complied with by a general designation of all the streets of the city. Meyers v. Hudson County Elec. Co., 63 N. J. L. 573, 44 Atl. 713, rev'g 60 N. J. L. 350, 37 Atl. 618. The regulations which may be imposed in connection with a statutory duty of designating a route for a telegraph or telephone line, does not justify requiring the filing of the written consent of abutters with the map of the route, or requiring a bond for encumbering of a certain street with wires and poles; 16 and general power conferred on a municipality to prevent the encumbering of streets, etc., authorizes it to exclude the poles and wires of a telephone company from the main business block of a street, where the only effect thereof is to make the route less convenient or involve a larger expenditure.17 Under its general powers, a municipality may designate the particular spots in which poles shall be erected and the manner in which wires shall be strung,18 and may designate the particular street or streets to be used.19 Furthermore, the granting by a municipality of a franchise to erect poles in the streets does not create a right to maintain each pole in the identical spot in which located, though the munici performance of the conditions imposed by the municipality, or prohibiting sale or transfer or rental to other parties without permission, or requiring fire and police wires to be carried on the poles free of charge, or providing that ownership of poles and wires shall vest in the municipality in case of abandonment or nonuser. Hudson & M. Telephone & Telegraph Co. v. Township Committee of Linden Tp., 80 N. J. L. 158, 76 Atl. 444. Where municipality is required to designate streets in which poles of telephone or telegraph company shall be erected, such designation must be of a reasonably practical route and is not legally made when the prescribed route is already so occupied by other poles and wires as substantially to prohibit any further erections of that character. Hudson & M. Telephone & Telegraph Co. v. Township Committee of Linden Tp., 80 N. J. L. 158, 76 Atl. 444. Borough is not a "city or town" in which permission to erect poles must first be obtained. Point Pleasant Elec. Light & Power Co. v. Borough of Bayhead, 62 N. J. Eq. 296, 49 Atl. 1108. Statutory provision that no posts or poles shall be erected in any street of any incorporated "city or town" without first obtaining a designation of the streets in which they shall be placed from the incor porated "city or town" does not include townships. Inhabitants of Township of East Orange v. Suburban Elec. Light & Power Co., 59 N. J. Eq. 563, 44 Atl. 628, aff'g (N. J. Ch.), 41 Atl. 865. 16 Marshfield v. Wisconsin Tel. Co., 102 Wis. 604, 44 L. R. A. 565, 78 N. W. 735. 17 Jonesville v. Southern Michigan Tel. Co., 155 Mich. 86, 130 Am. St. Rep. 562, 16 Ann. Cas. 439, 118 N. W. 736. 18 Louisville Home Tel. Co. v. Cumberland Telephone & Telegraph Co., 111 Fed. 663, rev 'g 110 Fed. 593; New Castle v. Central District & Printing Tel. Co., 207 Pa. St. 371, 56 Atl. 931; State v. Sheboygan, 111 Wis. 23, 86 N. W. 657. Delegation of power to commissioner of public works, see St. Paul v. Freedy, 86 Minn. 350, 90 N. W. 781. 19 Wichita v. Missouri & K. Tel. Co., 70 Kan. 441, 78 Pac. 886; Marshfield v. Wisconsin Tel. Co., 102 Wis. 604, 44 L. R. A. 565, 78 N. W. 735. But where a municipality grants rights to company to run its wires "over and through the streets of the city," the determination of what streets shall be occupied is for the company. Com. v. Warwick, 185 Pa. St. 623, 40 Atl. 93. pality may require a change of location of the poles.20 But a municipality, although having authority to direct any change in the location of the poles or wires of a company, cannot arbitrarily require a change without good cause, 21 nor arbitrarily remove poles from its streets,22 but may require a change of location if there are good reasons therefor.23 For example, a municipality may require a telephone company which has been granted the right to use a certain street, to remove its line, where another location on another street is offered, where the line has become dangerous and inconvenient to persons using the street.24 But if a grant or franchise to use the streets is a contract so that it cannot be rescinded or revoked except for just cause, an ordinance requiring a telegraph company to remove its poles from a certain street, is invalid where no provision is made for locating the poles and wires elsewhere or placing them in conduits, and where the purpose of the ordinance is merely to improve the appearance of the street.25 And a city cannot require an electric light company having a franchise to use the streets, to relocate poles, in order that the city may install a municipal lighting system, at least where there is no public necessity for another lighting system.26 So if a telephone company has the right to use the streets of a municipality by virtue of a statute and in 20 Merced Falls Gas & Electric Co. v. Turner, 2 Cal. App. 720, 84 Pac. 239, holding also that mere lapse of time cannot create prescriptive right to maintain poles in a certain spot. Telephone company acquires no permanent vested right in part of street occupied by its poles. Readfield Telephone & Telegraph Co. v. Cyr, 95 Me. 287, 49 Atl. 1047. A removal of wires and electrical appliances from streets pursuant to a statute authorizing designation by ordinance of city officers to carry out the provisions of the statute, held the act of the state rather than the municipality, so that city is improper party to be enjoined from removing wires. Postal Tel.-Cable Co. v. Worcester, 202 Mass. 320, 88 N. E. 777. 21 Southern Bell Telephone & Telegraph Co. v. Mobile, 162 Fed. 523; Hannibal v. Missouri & K. Tel. Co., 31 Mo. App. 23. 22 Northwestern Tel. Exch. Co. v. Minneapolis, 81 Minn. 140, 53 L. R. If a telephone company is lawfully granted the right to use a street, such right is an easement and a property right so that the municipality cannot require the removal of telephone poles and wires, where not interfering with the safety or convenience of ordinary travel, and where there has been no violation of the franchise. Southern Bell Telephone & Telegraph Co. v. Mobile, 162 Fed. 523, 532. 23 Ganz v. Ohio Postal Tel. Cable Co., 140 Fed. 692; American Telegraph & Telephone Co. v. Millcreek Tp., 195 Pa. St. 643, 46 Atl. 140. 24 Michigan Tel. Co. v. Charlotte, 93 Fed. 11. 25 Vandalia v. Postal Tel.-Cable Co., 274 Ill. 173, Ann. Cas. 1917 E 523, 113 N. E. 65. 26 Los Angeles Gas & Electric Co. v. Los Angeles, 241 Fed. 912. |