of trees overhanging the sidewalk, which did not obstruct the use of the sidewalk and had not been considered a nuisance, especially so, when the poles and wires could, without greater inconvenience, have been elsewhere located.69 Again, although an electric street railway is authorized to operate cars in the streets the city is not devested thereby of its right to control the company in the use of the trees standing upon the highway,70 reg $ 150. Extent of powers conferred on municipal agencies continued. Another asserted principal is that the power to ulate," specified in a grant of power in a city charter, carries with it all the necessary concomitants of its exercise, and in accord therewith it is held that the authority to license and regulate the telephone service, conferred on the common council of a city, made it necessary to grant permission to maintain and use the requisite appliances in the streets.71 In line with this doctrine, although an enlargement thereof, is the rule constantly sanctioned by the highest authorities, that recourse must be had to the enabling act, grant or delegation of powers to public or private corporations to determine the extent of their authority. A corporation is a creation of the legislative department of Government-it exists solely by virtue of the sovereign will. A municipal corporation is an instrumentality, and its authority is conferred for certain public. purposes. It is a rule of construction that whether a corporation is public or private it is precluded from exercising any rights or powers, regard being always had to the objects of its incorporation, which are not expressly or impliedly comprehended in the creating enactment. In addition thereto, a corporation may exercise those powers which may fairly and 69 Tissot v. Great Southern Teleg. & Teleph. Co., 39 La. Ann. 996, 2 Am. Elec. Cas. 289, 3 So. 261, per Bermudez, C. J. 70 State, Consol. Tract. Co. V. Township of East Orange, 61 N. J. L. 202, 38 Atl. 803, affd. 63 N. J. L. 669, 44 Atl. 1099. 71 Hershfield v. Rocky Mountain Bell Teleph. Co., 12 Mont. 102, 4 Am. Elec. Cas. 81, 29 Pac. 883, per Harwood, J., citing Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 203, 15 Sup. Ct. 826, per Mr. Justice Field upon the construction of the words " power to regulate" commerce in the Constitution of the United States. 1 Dill. on Mun. Corp., §§ 114, 357-360. reasonably have been contemplated as necessarily incidental and indispensable to effectuate the expressly granted rights and specified purposes of the corporation within these limits. All acts of a municipal corporation done or performed through its proper officers are legitimate. 72 72 Grand Rapids Elec. L. & P. Co. v. Grand Rapids Edison Elec., etc., Co., 33 Fed. 659, 2 Am. Elec. Cas. 159, 160, per Jackson, J., a case as to the power of a city to grant exclusive rights for the maintenance of electric light lines. "It is a general and undisputed law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation and the power is denied. Of every municipal corporation, the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, make any contract, incur any liabilities not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void." Dill. on Mun. Corp. ed.), § 89, quoted in Levis v. City of Newton & Newton Elec. Co. (U. S. C. C., S. D. Iowa, 1896), 75 Fed. 884, 6 Am. Elec. Cas. 18, per Woolson, Dist. J., in a case relating to the power, under a statute, of a municipal corporation to light its streets, and the validity of an ordinance. Judge Dillon's rule, as (4th above given, is quoted also in St. Louis v. Bell Teleph. Co., 96 Mo. 623, 10 S. W. 197, 2 Am. Elec. Cas. 46, per Black, J., a case relating to the municipal control of telephone rates. The same rule is also stated in Florida, C. & P. R. Co. v. Ocala Street & S. R. Co., 39 Fla. 306, 22 So. 692, 7 Am. & Eng. R. Cas. (N. S.) 686. So also in the Brush Elec, Light Co. v. Jones Bros. Elec., etc., Cos., 23 Week. L. Bull. 329 (Hamilton Co., Ohio, C. P., 1890), 3 Am. Elec. Cas. 521, per Kumler, J., citing Straus v. Eagle Ins. Co., 5 Ohio St. 59, a case relating to the rights of certain corpora tions to furnish electric lights, their charter not giving such rights. So also given in State ex rel. St. Louis Underground Service Co. v. Murphy (Mo., 1896), 6 Am. Elec. Cas. 83, per MacFarlane, J. "It is a well-settled rule of construction of grants by the legislature to corporations, whether public or private, that only such powers and such rights can be exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public." Minturn v. Larue, 23 How. (U. S.) 435, 436, per Mr. Justice Nelson, quoted in Levis v. City of Newton & Newton Elec. Co. (U. S. C. C., S. D. Iowa, 1896), 75 Fed. 884, 6 Am. Elec. Cas. 19, § 151. Extent of municipal powers continued - Class legislation. As municipal corporations exercise only such powers as are delegated to them by the legislature, they cannot do what the legislature has no power itself to do. It is a well per Woolson, Dist. J.; also quoted in Grand Rapids Elec L. & P. Co. v. Grand Rapids Edison Elec., etc., Co., 33 Fed. 659, 2 Am. Elec. Cas. 159, 160. (The nature of these last two cases is given ante in this note.) In State ex rel. Laclede Gas Light Co. v. Murphy, 130 Mo. 10, 5 Am. Elec. Cas. 81, 31 S. W. 594, the same rule is given by MacFarlane, J., citing Carroll v. Campbell, 108 Mo. 559; Fanning v. Gregoire, 16 How. (U. S.) 53. See further, White v. McKeesport, 101 Penn. St. 394; Ogden City v. Bear Lake & R., etc., Co., 16 Utah, 440, 52 Pac. 697, 41 L. R. A. 305; Henke v. McCord, 55 Iowa, 381, 7 N. W. 623; McManus v. Hornaday, 99 Iowa, 507, 68 N. W. 812; Short-Conrad Co. v. School Dist., 94 Wis. 535, 69 N. W. 337; Old Colony Trust Co. v. Atlanta (U. S. C. C., N. D. Ga.), 83 Fed. 39, 1 Dill. on Mun. Corp. (3d ed.), pp. 118, 119; Cooley's Const. Lim. (6th ed.), cited in City Council of Charleston V. Postal Teleg. Cable Co., 9 Ry. & Corp. L. Jour. 129, 3 Am. Elec. Cas., per Izlar, J. (Com. Pl., So. Car., 1891). Municipal, as well as other corporations, derive their power from the legislature, and can exercise none not confided to them." State ex rel. St. Louis Underground Service Co. v. Murphy, 134 Mo. 548, 6 Am. Elec. Cas. 70, per MacFarlane, J., in a case deciding the right of a city to require electric light wires to be placed underground. (S. C. [Mo., 1896], 6 Am. Elec. Cas. 77.) Germania Sav. Bank v. Dar lington, 50 S. C. 337, 27 S. E. 846. That a public corporation is a mere instrumentality of the State for the administration of local affairs, see Klein v. New Orleans, 98 U. S. 393, per Mr. Justice Field; Commissioners of Laramie Co. v. Albany, 92 U. S. 310, per Mr. Justice Clifford. That the power of chartering corporations belongs to the legislature alone, unless expressly taken away by the Constitution, and that it "is incidental to the general power of making laws for the State." See Morawetz on Private Corp. (ed. 1882), § 4, citing Briscoe v. Bank Ky., 11 Pet. (U. S.) 257; Bank of Chenango v. Brown, 26 N. Y. 467; Bell v. Bank of Nashville, 1 Peck. (Tenn.) 269. See also, the same treatise, § 506, as to the power of Congress to charter a corporation, and as to constitutional limitations on State legislatures. See further as to the power of Congress, Ang. & Ames on Corp. (ed. 1871), § 72 et seq. "The theory of a corporation is that it has no powers except those expressly given or necessarily implied. But this theory is no longer strictly applied to private corporations." 1 Cook on Corp. (ed. 1898), p. 9, § 3. Examine 5 Thompson on Corp. (ed. 1894), §§ 6021 to 6031; Phelps v. Blatchf. Town of Yates, 16 (U. S. C. C.) 193, per Wallace, J. It is held that a municipality is not restricted to the exercise merely of the police powers conferred by its charter, but that a penal ordinance enacted by it may settled rule that constitutional inhibitions upon the legislature are necessarily imposed upon municipalities. The former cannot do indirectly through the local government anything which it is prohibited by the Constitution from doing directly.73 As an illustration of this rule, an ordinance which is not only oppressive and unreasonable, but which is class legislation, cannot be upheld. Thus an ordinance comes within this doctrine and is invalid, which discriminates against one of several telephone companies and which demands a relocation of its poles without apparent good reason; which also demands a total removal of all standing poles as a condition precedent to the right of relocation and fails to provide for any praeticable relocation, and, even if there were no constitutional inhibition as to class legislation, such legislative ordinance would be void.74 § 152. Extent of municipal powers continued — Illustrations. It has been asserted by the United States Court of Appeals, that in the absence of any statute there is no implied restriction, springing from public policy, upon the power of a city to grant a street easement to a street car company having the requisite franchises from the State, unlimited as to time, and that the power of a city to impose terms and conditions upon the grant to a street railway company of the right to use its streets implies the authority to agree upon the duration of such use. 75 Where a statute provides that borough authorities shall have power to pass, alter or repeal ordinances relating to nuisances, obstructions and incumbrances in and upon its streets, and to declare what constitutes such nuisances, the be valid, though more comprehensive than the State statute on the subject. Seattle v. Chin Let, 19 Wash. 38, 52 Pac. 324. 73 Grand Rapids Elec. Light & P. Co. v. Grand Rapids Edison Elec. L., etc., Co., 33 Fed. 659, 2 Am. Elec. Cas. 167, per Jackson, J., citing Dill. on Mun. Corp. (2 ed.), § 263; Hannibal v. Missouri & Kansas Teleph. Co., 31 Mo. App. 23, 2 Am. Elec. Cas. 151, per Rombauer, J. 74 Hannibal v. Missouri & Kansas Teleph. Co., 31 Mo. App. 23, 2 Am. Elec. Cas. 151, per Rombauer, J. 75 Louisville Trust Co. v. Cincinnati, 47 U. S. App. 36, 22 U. S. C. C. A. 234, 76 Fed. 296. But see sections as to exclusive use. See also Booth on Street Rys. (ed. 1892), § 17. 76 power granted must be exercised in the mode prescribed; although in Indiana a private individual, in the absence of legislative restrictions, may own and conduct a telephone system without assent by the legislature.77 And where a city grants consent to the use of its streets by a telephone company and reserves a right to regulate the manner of occupation, there is included in such reservation the power to compel the adoption of such reasonable and accepted improvements as may tend to increase the public safety or convenience, or which will decrease the obstruction to the city streets incident to the telephone corporation's use thereof.78 It is also held in New Jersey that a municipality cannot authorize any person, natural or artificial, to erect telegraph or telephone poles in its public streets, except by virtue of express or implied powers granted by the legislature, and that the charter of Newark did not confer such authority.79 And in Kentucky it is declared that the power to close city streets and alleys can only be delegated by the State; 80 nor in the absence of an express or implied authority can a municipality destroy, even in part, a public street of a city.81 Numerous other illustrations of the doctrines and principles as to the powers of and limitations upon municipal corporations will be found throughout this work under their appropriate heads. § 153. Powers of village trustees Electric light poles Obstruction of highway. If an act incorporating a village confers upon a board of village trustees jurisdiction and control over the streets therein, and such trustees have also power to 76 Brigantine v. Holland Trust Co. (N. J. Ch.), 35 Atl. 344, under New Jersey act of April 5, 1878. 77 Magee v. Overshiner, 150 Ind. 127, 49 N. E. 951, 40 L. R. A. 370. See also Citizens' Elec. L. & P. Co. v. Sands, 95 Mich. 551, 4 Am. Elec. Cas. 58, 55 N. W. 452. 78 Commercial Bell Teleph. Co. v. Warwick, 185 Penn. St. 623, 40 Atl. 93. See chap. XXI, herein, as to improvements and safety appliances. 79 State, The Domestic Teleg. & Teleph. Co. v. Mayor of Newark, 49 N. J. L. 344, 2 Am. Elec. Cas. 141, 8 Atl. 128, construing the act of April 9, 1875 (Revision 1174), and supplement March 11, 1880 (Laws of 1880, p. 201). 80 Louisville v. Bannon, 90 Ky. 74, 35 S. W. 120, 18 Ky. L. Repr. 10. 81 Florida C. & P. R. Co. v. Ocala Street & S. R. Co., 39 Fla. 306, 22 So. 692, 7 Am. & Eng. R. Cas. (N. S.) 686. |