paired the obligation of the contract made between the relator and the city. The court held that the first contention as to being deprived of property without due process of law was without foundation, it being based upon the ground that the requirement of the statutes that the salaries of the subway commissioners should be paid by the electrical companies was in violation of the Fourteenth Amendment to the Constitution of the United States, since it had been previously held by the Supreme Court that a statute requiring railroad companies to pay the salaries of the railroad commissioners was constitutional, and no violation of this amendment. The other contention as to the obligation of the contract having been impaired by these acts, was also held to be untenable, and it was also asserted in this court that such acts were within the proper exercise of the police power of the State. The decision in substance was that the acts referred to were clearly applicable to the relator; that the rights which the relator obtained under the ordinance were expressly subject to regulation by the supreme power of the State, acting in behalf of the general public, so long as essential rights were not impaired or invaded; that the contract, if there was one, was to be gathered from statutes of the State and the ordinances conferring the privilege of constructing the subways; that, under the general law for the use of streets, provision had been made to secure the rights of the public, the law of 1881 providing that before any company could construct its lines in the streets, it must "first obtain * * * permission to use the streets within such city," thus reserving in express terms to the State the power to regulate highways; that the rights conferred were not absolute, but qualified, subject to the public easements; that conceding that there was a contract, it was subject to ordinary and necessary uses of the street by the public; that the statutes creating a board of electrical control did not take away any of the rights of the relator, but simply required a submission of plans and specifications to the commissioners, "who will determine. whether they are in accordance with the terms of the ordinances giving you the right to enter and dig up the streets of the city." The court, continuing on this line, then said: "This the statutes had a right to do. It would be an anomaly in municipal administration, if every corporation that desired to dig up the streets of a city and make underground connections for sewer, gas, water, steam, electricity or other purposes, should be allowed to proceed upon its own theory of what were proper plans for it to adopt, and proper excavations to make. The evils that would follow from such a system of practice would be of great gravity to the public, and would entail endless disputes and bickerings with prior parties having equal rights. The utmost that can be said against the Acts of 1885 and 1886 is that they transferred the supervision and control of the matters of excavation of the streets, and the construction of underground electric systems from the commissioner of public works to the board of subway commissioners. That is the sum total of the change effected. Not a right of the electrical companies was violated, and no contract was impaired. The expressly reserved power of the State or municipality to regulate the use of the streets and highways in such manner as not to injuriously affect the public interests was merely transferred from one public functionary to another. The power was not enlarged; only the agency by which the supervising power of the State was to be exercised was changed. It requires no argument or citation of authorities to demonstrate that such proceedings did not impair the obligation of the relator's contract. If it did, every act of incorporation would involve a loss of authority by the legislature to change its public functionaries, or their respective powers and duties. Independently, however, of the contractual relations of the relator, the statutes of 1885 and 1886 are so clearly an exercise of the general police powers of the State that we do not deem it necessary to add anything on that point to what was said by the Court of Appeals of New York, 107 N. Y. 593, 603, 604."9 § 423. Other cases under New York Subways Acts.- In the case of People v. Squire,1o the constitutionality of the Act of 1887 11 was not considered, since that act was not before the court for construction. Shortly after the decision in that case, however, the constitutionality of this act was challenged in a case before the Special Term of the Supreme Court. The People ex rel. New York Elec. Lines v. Squire, 145 U. S. 175, 12 S. Ct. 880, 4 Am. Elec. Cas. 122, 133, 134, per Mr. Justice Lamar, 10 See preceding section. court, however, said that if there was any reason for doubt as to its being constitutional, "the doubt is so remote that a justice, sitting at Chambers, would not, upon well-established authorities, be justified in entertaining it." 12 Following this decision the question was again raised in the United States Circuit Court. It was contended that the Laws of 1884 13 and 1885 14 were an invasion of the paramount authority of the National Government over post roads and interstate commerce. As to the Act of 1887 15 it was claimed this operated so as to confiscate property rights of the companies owning electric wires, by depriving them of their easements for the benefit of the subway company. It was held that, although the companies might be subjected to great expense, interruption of business, and loss and inconvenience, yet the question was as to the reasonableness of the regulation, and whether the loss and inconvenience were not such as every property-owner and citizen were subject to for the common good. And the court, continuing, said: "The subordination of the property rights of the owner to the just exercise of the police power of the State is as complete as it is to the taxing power of the State, which requires him to contribute his portion of the burden of taxation. * * * It is not apparent how the regulation imposed impairs in any just sense the privilege granted to the complainant by the law of Congress. The privilege to maintain telegraph wires over and along' post roads is not to be construed so literally as to exclude regulations by the State respecting location and mode of construction and maintenance which the public interests demand, but is to be construed so as to give effect to the meaning of Congress, which was to grant an easement that would afford telegraph companies all necessary facilities, and which to that extent should be beyond the reach of hostile legislation by the State. The legis * * * * * * lation in question does not contemplate any regulation which is not practically feasible. The expense, and the temporary or occasional interruptions and inconveniences which are incident to the scheme proposed, constitute the extent of 12 United States Illum. Co. v. Hess, 19 N. Y. St. R. 883, 3 N. Y. Supp. 777, 2 Am. Elec. Cas. 187, per Lawrence, J. 13 Laws of 1884, chap. 534. * * * Such their sacrifice for the general comfort and convenience. legislation does not infringe upon the power of Congress to regulate commerce, or upon the exemption of the agencies of the General Government from State control. These agencies are exempt from State control by police regulation, or by the exercise of the taxing power, so far only as that legislation may interfere with or impair their efficiency in performning the functions by which they are designed to serve the Government. "16 § 424. Same subject- American Rapid Telegraph Company v. Hess. In 1891 an action was again brought by one of the electrical companies in New York city for the purpose of testing the constitutionality of these statutes. The ground upon which the claims of the plaintiffs were based differed from those raised in the preceding cases in one respect. In this case it was claimed that the company incorporated under the Laws of 1848, which was a general act for the incorporation and regulation of telegraph companies and the acts amendatory thereto, had conferred upon it a right operating as a grant or franchise to use the streets for its poles and wires, and that this grant constituted a contract within the protection of the Federal Consitution, and, therefore, that neither its poles nor wires could be removed by either the city or State except as prescribed by the Constitution, providing that private property shall not be taken for public use except upon making compensation. It was held, however, that the company obtained merely an authority or license to enter upon the streets and erect its poles and wires, and that the State did not abdicate any of its power over the streets, or relinquish any of its rights to supervise and control the use of the streets in the exercise of its power for the welfare of the public. The court declared that by virtue of the police power which the State possessed over streets and highways, the legislature could lawfully pass such acts requiring removal of poles, and conferring power to remove if the companies did not comply with the statute, and that the removal of the poles and wires from the streets was 16 Western Un. Teleg. Co. V. Mayor of City of New York, 38 Fed. 552, 2 Am. Elec. Cas. 195, 205, 206, 207, per Wallace, J. 17 Laws of 1848, chap. 265. not a taking of private property, but that the poles and wires having become a nuisance, the municipal authorities were empowered to remove them the same as any other incumbrance. As to these acts, it was held that there was no interference with the Post Roads Act of Congress, since it was perfectly feasible for the company to avail itself of the privileges conferred by such act, by using the subways, and that this act did not operate to deprive the State of the control and regulation of streets and highways under the police power for the public welfare. It was also declared that the legislature had undoubted power to ratify and confirm the contract entered into between the board of electrical control and the defendants in the present action, The Consolidated Telegraph & Electrical Subway Company.18 Thus, again, were these acts declared to be constitutional. 19 $425. Subways Acts General propositions in reference to.It will be seen from the preceding sections that the constitutionality of the New York Subways Acts has been tested upon almost every conceivable ground, but in all the cases the courts have held them to be constitutional, as being a valid exercise of the police power of the State. From the cases which have arisen under these acts the following general propositions of law may be deduced: 1. The legislature of a State may, in the exercise of its police power, require electrical wires to be placed underground. 2. The municipal authorities may, under a proper delegation of power, require electrical wires to be placed underground. 3. Such acts may be made to affect not only companies subsequently organized, but those already maintaining poles and wires upon the streets. 4. Acts of this nature do not deprive companies formed under the Post Roads Act of Congress of any of the rights or privileges conferred upon such companies by that act. 5. Acts of this nature do not conflict with the powers of Congress in reference to post roads. 6. Acts of this nature are not in conflict with the paramount right of the National Government to control and regulate inter 18 Laws of 1887, chap. 716. 19 American Rapid Teleg. Co. v. Hess, 125 N. Y. 641, 36 N. Y. St. R. 252, 21 Am. St. R. 764, 26 N. E. 919, 39 Am. & Eng. Corp. Cas. 526, 3 Am. Elec. Cas. 142, affg. 58 Hun (N. Y.), 610, 35 N. Y. St. R. 606, 12 N. Y. Supp. 536. |