tion, the reverse of the proposition equally prevails; or in other words, the rights of both Federal and State Governments should be so exercised that neither will conflict in a material degree with the other. § 106. Commerce Federal Constitution - Rental for poles in streets. It is held, in the United States Supreme Court, that an ordinance requiring the payment of a fixed sum for each and every telegraph or telephone pole erected or used in the streets, alleys or public places of a city does not impose a tax on the property or business of the company, or a privilege or a license tax, but that such charge is in the nature of a rental or a pecuniary compensation to the general public for being deprived of the use of that portion of the street exclusively appropriated, by placing said poles. In a Rhode Island case the court says: "Whether or not the city may not properly obtain a revenue from petitioner, by way of charging a rental for the use of that part of the public streets occupied, by said poles and wires, as has been done in other States, we are not called upon to decide, but we do not think they are taxable to the corporation owning them, either as real or personal estate." 68 In Mississippi an ordinance was. entitled," An ordinance to fix the rent charged telegraph for the use of the streets," and it was held that such charge was not a tax, but a rent pure and simple, and that the enactment did not regulate the use of its wires and poles by the telegraph company, nor the use 67 * * * companies * * * 66 St. Louis v. Western Un. Teleg. Co., 148 U. S. 92, 37 L. Ed. 380, 4 Am. Elec. Cas. 102, 13 Sup. Ct. 485; S. C., 149 U. S. 465, 13 Sup. Ct. 990, 4 Am. Elec. Cas. 115; S. C. (U. S. C. C., E. D. Mo., 1894), 63 Fed. 68, 5 Am. Elec. Cas. 43. 67 Citing St. Louis v. Western Un. Teleg. Co., 148 U. S. 92, 37 L. Ed. 380, 4 Am. Elec. Cas. 102, 13 Sup. Ct. 485; St. Louis v. Western Un. Teleg. Co., 149 U. S. 465, 4 Am. Elec. Cas. 115; Lancaster v. Edison Elec. Illum. Co., 8 Penn. Co. Ct. Rep. 178, 2 Am. Elec. Cas. 116; 68 Newport Illum. Co. v. Tax Assessors Newport, 19 R. I. 632, 36 Atl. 426, 36 L. R. A. 266, 6 Am. Elec. Cas. 659, 666, 667, per Tillinghast, J. of the streets by said company in the occupation of them by poles.69 § 106a. Where entire control of streets is granted cityPower as to rental charges. Where the legislature grants by statute to a city the entire control of its streets, such a grant includes the power to demand and receive by way of rental compensation for facilities afforded to a telegraph company for a use and occupation not enjoyed by the general public; especially so where no machinery is provided by statute for the levy and collection of such compensation, charges, or rental by the State. The entire control so granted would evidently appear to be a more absolute delegation of power than a grant of authority to regulate, and the above would apply though such charge or rental be called a tax, as "Taxes" in constitutions and statutes does not generally mean such charges. 70 § 107. Commerce Federal Constitution — License fee, etc., valid - Special conditions.- In some of the cases wherein such license fee or tax, or privilege or occupation tax, and the like, have been held valid, special conditions have existed, which have necessarily affected the decision. This is illustrated by a case where the imposition of a license tax, which the court said appeared very large, was sustained. There was no proof, however, that the tax was unreasonable, and it was declared that it could not be determined as a matter of law, without proof, that it was excessive, oppressive or prohibitive, and that the mere amount of the tax did not prove its invalidity.71 So, in another decision, it was held that a license fee might be imposed upon a telegraph company for the privilege of trans 69 Hodges v. Western Un. Teleg. Co., 72 Miss. 910, 18 So. 84, 29 L. R. A. 770, 5 Am. Elec. 56. TO City of Memphis V. Postal Teleg. Cable Co., 145 Fed. 602, revg. in part 139 Fed. 707 and citing upon the power to collect reasonable rental charges: Postal Teleg. Cable Co. v. Baltimore, 79 Md. 502, 29 Atl. 819, 24 L. R. A. 161, affd. 156 U. S. 210, 15 Sup. Ct. 356, 39 L. Ed. 399; Western Un. Teleg. Co. 71 Re Chipchase, 56 Kan. 357, 43 Pac. 264, 6 Am. Elec. Cas. 92. acting business within a city, even though the messages received and delivered within the city were transmitted to and from points outside the municipality, but within the State. But the court said: "The petition expressly avers, which the demurrer admits to be true, that plaintiff in error was and is engaged in carrying on within the corporate limits of said city the business and occupation described in paragraph 1 of the ordinance under consideration. Plaintiff in error is, therefore, carrying on a business or occupation in the city of Fremont, within the meaning of the statute, and is liable to the license tax imposed by the municipal authorities." 72 In a New York case it was decided that a license fee or like charges might be imposed by the city of Philadelphia upon telegraph companies by virtue of the police power; also, that said charges were for regulation and not for revenue, and that they were not a tax on business, but, if so, they were invalid. But the ordinances in question related to the safety of the citizens and of their property, and to the inspection of wires. They were, therefore, upon their face, an exercise of the police power, and in addition, all charges were removed from wires which were placed underground.73 So, in another case where a license tax was authorized to be imposed by cities of the third class upon different kinds of business, including express. telephone and other corporations and individuals furnishing communication, light, heat, or power, it was held that the tax need not be the same upon each of the different classes speci 72 Western Un. Teleg. Co. v. Fremont, 39 Neb. 692, 26 L. R. A. 698, 4 Am. Elec. Cas. 626, 631, 632, 58 N. W. 415. Followed upon principle involved in City of York v. Chicago, Burlington & Quincy R. Co., 56 Neb. 572, 76 N. W. 1065. See Western Un. Teleg. Co. V. Hughes, 104 Va. 240; Western Un. Teleg. Co. v. Reynolds, 100 Va. 459, 93 Am. St. Rep. 971, 41 S. E. 856. Examine as to principle involved Kehrer v. Stewart, 197 U. S. 60, 49 L. Ed. 663, 25 Sup. Ct. 403; Han ley v. Kansas City Southern Ry. Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333. 73 Philadelphia v. Postal Teleg. Cable Co., etc., 67 Hun (N. Y.), 21, 50 N. Y. St. R. 301, 21 N. Y. Supp. 556, 4 Am. Elec. Cas. 92. See Philadelphia v. Western Un. Teleg. Co., 81 Fed. 948, 82 Fed. 797, revd., but on different ground (Aug., 1898); Western Un. Teleg. Co. v. Philadelphia (Penn.), 12 Atl. 144, 2 Am. Elec. Cas. 98, 11 Cent. Rep. 192. fied.74 Again it is held that the city of St. Louis might impose a reasonable charge in the nature of a rental, for the exclusive use of a certain part of its streets for poles for electrical wires; but that city had full control of its streets in this respect, and represented the public in relation thereto; the charter of the city not being derived from legislative grant, but having been framed under express authority of the people of the State, given by the Constitution.75 § 108. Commerce Federal Constitution License fee, etc., void Special conditions. In certain cases the imposition of a charge, under municipal ordinance, upon a telegraph or other electrical company's poles or wires, have been held void by reason of some special conditions operating as a determining factor. Thus, an ordinance required the payment of $5 per year upon every pole erected or then in use, " said payments to be in consideration of the privilege of entering upon, using, and permanently occupying the streets, ways and places of the city for private property." A prior ordinance granted to the telephone company the right to construct and maintain its lines within the city, under conditions which amounted to a contract. The line was constructed and an expensive and valuable telephone plant was established. The contract with the city was also fully complied with. The court, therefore, held that the later ordinance could not be upheld; that the charge imposed was not a tax either on property, or a license, and could not be sustained as an exercise of the taxing power; that it was not an exercise of the police power, as no consideration of public morals, health, or convenience was involved; and that the city could not disregard its contract and impose new and onerous conditions.76 This doctrine as to contracts has been ap 74 Harrisburg v. East Harrisburg Pass. Ry. Co. (C. P.), 4 Penn. Dist. Rep. 683. 75 St. Louis v. Western Un. Teleg. Co.. 149 U. S. 465, 13 Sup. Ct. 990, 4 Am. Elec. Cas. 115, 148 U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380, 4 Am. Elec. Cas. 102. 76 City of New Orleans v. Great Southern Teleph. & Teleg. Co.. 40 La. Ann. 41, 8 Am. St. Rep. 502, 2 Am. Elec. Cas. 122, 3 So. 533. See also Mayor of New York v. Third Ave. R. Co., 33 N. Y. 42; Mayor of New York v. Twenty-third St. Ry. Co., 113 N. Y. 311, 22 N. Y. St. R. 958, 21 N. E. 60, affg. 48 Hun (N. Y.), 552, 16 N. Y. St. R. 137. Examine Mayor of New York v. Third Ave. R. Co., 117 N. Y. 404, 27 N. Y. St. R. 170, 22 N. E. 755. proved by the Federal courts, so the grant of an easement granted by a State or city, with a condition attached to be performed by the grantee, beneficial to the grantor when accepted by the grantee, and acted on by both parties, constitutes a contract between them from which neither party can recede, except upon the terms provided for or contemplated by the contract.78 And in this case certain conditions, whereby the city reserved the use of crossarms of telegraph poles, having been accepted, it was held that a rental for the use thereof could not be thereafter exacted from the telegraph company. In a Mississippi case the statutes authorized any telegraph company chartered under the laws of that or any other State, upon making due compensation, to construct, maintain and operate telegraph lines on, across, or along all streets; but no compensation was provided for cities in case their streets should be. used, and it was held that a telegraph company which had entered under this statute, upon a city's streets, could not thereafter be charged, by ordinance, a rental for such use and occupation, and that said charge was not a tax. The ordinance also, in terms, was entitled, "An ordinance to fix the rent charged telegraph companies for the use of the streets." 79 And the same ruling has been made in * * 77 Approved but distinguished in St. Louis v. Western Un. Teleg. Co., 148 U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380, 4 Am. Elec. Cas. 102, 112, citing Commonwealth v. New Bedford Bridge, 2 Gray (Mass.), 339; Kansas City v. Corrigan, 86 Mo. 67; Chicago v. Sheldon, 9 Wall. (U. S.) 50, as being controlled by the same principle as to contracts. 78 St. Louis v. Western Un. Teleg. Co. (U. S. C. C., E. D. Mo., 1894), 63 Fed. 68, 5 Am. Elec. Cas. 43, 45, 46, per Phillips, Dist. J., (citing). United States: Coast Line R. Co. v. Mayor, 30 Fed. 646. Illinois: City of Quincy v. Bull, 106 Ill. 342. Indiana: Western Paving Co. V. Citizens' St. Ry. Co., 128 Ind. 525, 26 N. E. 188, 28 N. E. 88. Louisiana: City of New Orleans V. * * * Great Southern Teleph. & Teleg. Co., 40 La. Ann. 41, 8 Am. St. Rep. 502, 2 Am. Elec. Cas. 122, 3 So. 533. Missouri: State v. Corrigan St. Ry. Co., 85 Mo. 264. New Jersey: State, Hudson Teleph. Co. v. Mayor, etc., Jersey City, 49 N. J. L. 303, 2 Am. Elec. Cas. 133, 8 Atl. 123. Vermont: Rutland Electric L. Co. v. Marble City Elec. L. Co., 65 Vt. 377, 26 Atl. 635, 4 Am. Elec. Cas. 256; Dill. on Mun. Corp. (3d ed.), par. 472. But see St. Louis v. Western Un. Teleg. Co., 149 U. S. 465, 4 Am. Elec. Cas. 115, 121, 13 Sup. Ct. 990, 37 L. Ed. 810; Landsdowne v. Citizens' Elec. L. & P. Co. (C. P.), 7 Del. Co. Rep. 173. 79 Hodges v. Western Un. Teleg. Co., 72 Miss. 910, 18 So. 84, 29 L. R. A. 770, 5 Am. Elec. Cas. 56, |