145 U.S. 175
12 S.Ct. 880
36 L.Ed. 666
PEOPLE ex rel. NEW YORK ELECTRIC LINES Co.
SQUIRE, Commissioner of Public Works.
May 2, 1892.
This was an application for a writ of mandamus on behalf of the New York Electric Lines Company, a New York corporation, to compel the commissioner of public works of New York city to give it written permission to make excavations and open up the streets and pavements of the city for the purpose of laying its wires and other conductors of electricity underground, and of making its underground electrical connections, in accordance, it was claimed, with its franchise for such purposes, theretofore obtained from the city
The application was presented to the court of common pleas for the city and county of New York, at a special term, and was denied, on the ground that the relator had not obtained the approval of the commissioners of electrical subways for that city and county of the plans and specifications proposed by it for the construction of its underground electrical system. Upon appeal to the court in general term the order denying the application was affirmed, (14 Daly, 154, 166,) and the relator thereupon appealed to the court of appeals of the state, which affirmed the judgment below, (107 N. Y. 593, 14 N. E. Rep. 820.) The record having been remitted to the court of common pleas, and the judgment of the court of appeals having been there entered as its judgment, this writ of error was sued out.
The case as presented by the petition for mandamus and its accompanying exhibits is substantially this. The relator was incorporated on the 14th of October, 1882, under the general telegraph law of April 12, 1848, (chapter 265, Laws 1848,) and the various acts amendatory thereof and supplementary thereto, 'for the purpose,' as stated in its certificate of incorporation, 'of owning, constructing, using, maintaining, and leasing lines of telegraph wires or other electric conductors for telegraphic and telephonic communication and for electric illumination, to be placed under the pavements of the streets, avenues, and public highways of the cities of New York and Brooklyn, in the state of New York, and under the sidewalks of the streets and avenues of the said cities, and upon, over, or under private lands in the said cities, within blocks of buildings erected or to be erected therein, and for the purpose of owning franchises for laying and operating the said lines of electric conductors, and the purchasing, owning, and disposing of such real estate within the said cities, and such personal property as may from time to time be necessary and convenient to the building, using, maintaining, and leasing the said lines of electric conductors.'
By section 5 of the original act of 1848 telegraph companies were authorized to construct their lines 'along and upon any of the public roads and highways, or across any of the waters within the limits of the state,' 'provided the same shall not be so constructed as to incommode the public use of said roads or highways, or injuriously interrupt the navigation of said waters.'
By section 2 of the amendatory act of June 29, 1853, (chapter 471,) the privilege was extended to such companies of erecting or constructing their lines 'upon, over, or under any of the public roads, streets, and highways, and through, across, or under any of the waters' of the state, subject to the same restrictions contained in the act of 1848.
By section 1 of the act of June 10, 1881, (chapter 483,) amendatory of the preceding acts on this subject, it was provided as follows: '(1) Any company or companies organized and incorporated under the laws of this state for the purpose of owning, constructing, using, and maintaining a line or lines of electric telegraph within this state, or partly within and partly beyond the limits of this state, are hereby authorized, from time to time, to construct and lay lines of electrical conductors underground in any city, village, or town within the limits of this state, subject to all the provisions of law in reference to such companies not inconsistent with this act: provided, that such company shall, before laying any such line in any city, village, or town of this state, first obtain from the common council of cities, the trustees of villages, or the commissioners of highways of towns permission to use the streets within such city, village, or town for the purposes herein set forth.'
The foregoing embraces the material parts of the statute law of New York relating to telegraph companies, in force when the relator was organized.
Within a few months after the relator was incorporated, to wit, April 10, 1883, the board of aldermen of the city of New York adopted resolutions giving to the relator permission to lay its wires underground through the city, in accordance with certain restrictions, and upon conditions particularly specified. The material portions of these resolutions were as follows:
'Resolved, that permission be and hereby is granted to the New York Electric Lines Company to law wires or other conductors of electricity in and through the streets, avenues, and highways of New York city, and to make connections of such wires or conductors underground by means of the necessary vaults, test boxes, and distributing conduits, and thence above ground, with points of electric illumination or of telegraphic or telephonic signal, in accordance with the provisions of an 'ordinance to regulate the laying of subterranean telegraph wires and electric conductors in the streets of the city,' passed by the common council and approved by the mayor, December 14, 1878: provided, however, and it is hereby ordained and.
'Resolved, that whenever the said New York Electric Lines Company, in the progress of laying its lines of electric conductors, shall be prevented or obstructed from placing its wires in the spaces which may have been generally selected under the ordinance, passed and approved as aforesaid, by manholes of sewer. gas, steam, or water mains, or other underground or pavement impediments, now and heretofore existing, then, and in such cases, the said company may, under the privileges hereby granted, vary the space selected by adopting, appropriating, and using equivalent and nearest practicable spaces as said, by manholes of sewer, gas, steam, further, and it is hereby further.
'Resolved and ordained, that the connection vaults or test boxes aforementioned may be extended underground not more than four feet in depth or two feet in any lateral direction beyond the limited spaces contemplated for the lines of wires, in the ordinance passed and approved as aforesaid, and may be fitted with covers, or other means of access, at the level of the pavements of the several streets and avenues.'
Then follow several paragraphs of the ordinance relating to the compensation to be paid by the relator for the franchise thus given to it.
The ordinance of December 14, 1878, referred to in the first paragraph of that of 1883, as regulating the conditions and limitations upon which the franchise was granted, was as follows:
'No telegraph line or electric conductor shall be laid under the streets of this city at such depth from the surface that the necessary excavation incident to laying or repairing the same shall expose or endanger any water or gas pipes, sewers, or drains, or any parts thereof.
'Such wires or conductors shall in no case be placed at a greater distance from the curbstone separating sidewalks from carriage way than four feet, except in crossing streets running transverse to the direction of said lines, when such crossings shall be made in the shortest straight line, or in making necessary connections with buildings and stations.
'The method employed in laying said conductors shall be such that it will at no time be necessary to remove so much of the pavement, or to make such excavation, as to materially impede traffic or passage upon sidewalks or streets during operation of laying or repairing said conductors, except when in crossing streets transversely, where it shall be permitted to remove the paving stone for a width not exceeding two feet, and in the nearest straight line from corner to corner. In no case during the general hours of passage and traffic shall passage be interrupted thereby for a longer period than one bour.
'The work of removal and replacement of the pavements in any and all of the streets, avenues, highways, and public places in and through which the wires of any telegraph company shall be laid shall be subject to the control and supervision of the commissioner of public works. Excavations in any and all of the unopened streets, avenues, highways, or public places shall also be subject to like control and supervision.
'The space selected for placing said wires, in every case being limited as to direction and general position by the foregoing provisions, shall not exceed two feet in width by two feet in depth.
'Grantees under this ordinance shall be required, within six months after such permission shall be granted, to file with the county clerk maps, diagrams, and tabular statements, including the amount and position of the spaces proposed to be occupied by them, and their rights and privileges under this ordinance shall be confined to the spaces, positions, and localities as indicated by said maps, diagrams, and statements.'
On the 16th of April, 1883, the relator accepted the franchises granted to it by the resolutions of the 10th of that month, and on the 18th of May of the same year it filed in the office of the clerk of the county of New York a map, diagram, and tabular statement, indicating the amount and position and localities of the spaces it proposed to occupy in and under the streets and other land in the city and county of New York. The petition avers that the relator immediately thereafter proceeded to make ready its material and plant for the construction of its electrical conductors and underground lines in the city, and began to develop and elaborate its mechanical constructions for the same, and to make ready the machinery, appliances, and implements for its work, in pursuance of the objects of its incorporation, and at great expense; that since then it had purchased and partly paid for and become obligated to pay the sum of $50,000 and upwards for property essential to the execution of jits rights under the aforesaid laws and ordinances; and that more than 3,000 shares of its capital to the execution of its rights under issued by it, and sold to persons who had relied upon its said franchise.
It seems, however, that, notwithstanding the acts done by the relator, as above averred, it took no steps towards opening up the streets and avenues of the city for the purpose of laying its wires and other electrical connections underground, until on or about July 21, 1886, when it made an application to the commissioner of public works for a permit to be allowed to make the necessary excavations, etc., for such purpose, which application was denied by the commissioner on the 23d of the following month. This denial, as already stated, was made because the relator had not obtained the approval of the board of commissioners of electrical subways, created by the act of the New York legislature, approved June 13, 1885, (chapter 499,) of the plans and construction proposed by the relator.
As this act of the legislature has a very important bearing upon the material questions in this case, it will be necessary to refer more particularly to it. Its first section authorized and directed the mayor, comptroller, and commissioner of public works of cities having more than 1,000,000 population to appoint three disinterested persons, residents of the city for which they should be appointed, to be a board of commissioners of electrical subways. By its second section it was made the duty of such board to cause all electrical wires and other conductors of electricity to be removed from the surface and placed underground wherever practicable, and to require all electrical companies operating or intending to operate electrical conductors in any street, avenue, or highway of the city to transact their business by means of underground conductors wherever practicable. Its third section provided as follows:
'Sec. 3. When any company operating or intending to operate electrical conductors in any such city shall desire or be required to place its conductors, or any of them, underground in any of the streets, avenues, or other highways of such city, and for that porpose to remove the same from the surface thereof, and shall have been duly authorized to do so, it shall be obligatory upon such company to file with said board of commissioners a map or maps, made to scale, showing the streets or avenues or other highways which are desired to be used for such purpose, and giving the general location, dimension, and course of the underground conduits desired to be constructed. Before any such conduits shall be constructed it shall be necessary to obtain the approval by said board of said plan of construction so proposed by such company; and said board has and shall have power to require that the work of removal and of constructing every such system of underground conductors shall be done according to such plan so approved, subject at all times to such modification as shall from time to time by the board be made, and subject also to the rules and regulations, not inconsistent herewith, prescribed or to be prescribed by the local authorities having control of such streets, avenues, or other highways of such city.'
Various other duties were devolved upon this board by the subsequent sections of the act, but they need not be referred to in this connection. This act of 1885 was amended in certain particulars, also not material to the questions involved in this case, by the act of May 29, 1886, (chapter 503.) The only other section of the statute necessary to be mentioned is section 7, which, as amended, is as follows:
'The amount of such salaries and expenses [of the board of subway commissioners] shall, in such proportion as is prescribed in section eight of this act, be by the comptroller assessed upon and collected from the several companies operating electrical conductors in any such city of the state which, under the provisions of this act, are or shall be required to place and operate any of their conductors underground, and shall be paid into the treasury of the state, in such installments as the comptroller shall require.'
After the refusal of the commissioner of public works to issue the permit above mentioned, the relator applied to the common pleas court for a peremptory mandamus to compel him to issue it, with the result as stated in the opening paragraphs of this opinion.
E. M. Marble, for plaintiff in error.
[Argument of Counsel from pages 182-186 intentionally omitted]
M. Egleston and Jas. C. Carter, by leave, filed brief on behalf of Metropolitan Telephone & Telegraph Company, with plaintiff in error.
D. J. Dean, (James Hillhouse, of counsel,) for defendant in error.
Mr. Justice LAMAR delivered the opinion of the court.
In the New York courts it was contended by the relator (1) that the aforesaid acts of the legislature of that state, passed in 1885 and 1886, were not applicable to it, because passed subsequently to the date of the alleged contract between it and the city of April 16, 1883; (2) that, if they were applicable to it, they were violative of the constitution of the state of New York for several reasons stated; and (3) that, if applicable, they also violated the constitution of the United States in certain particulars specified. All of the points made by the relator were decided adversely to it in the state courts.
In this court necessarily the contention that the acts in question are violative of the constitution of the state is not raised, as we would have no jurisdiction to consider such questions. The contention here on the part of the relator, as gathered from the assignment of errors, may be thus stated:
(1) The acts of 1885 and 1886 are not applicable to the relator, for the reason urged before the courts of the state; and
(2) If they be held to apply to the relator they are violative of the constitution of the United States in two particulars. (a) They deprive the relator of its property without due process of law; and (b) they impair the obligation of the contract made between the relator and the city on the 16th of April, 1883, the date of the acceptance by it of the provisions of the city ordinance of the 10th of that month. All the other points raised may be arranged under one or the other of the above heads.
It will be convenient to consider the questions involved in this case in somewhat the above order. In no sense of the term do we think it can be safely averred that the acts of 1885 and 1886 are not applicable to the relator. The language of both of these acts clearly precludes such a construction. It is declared in the third section above quoted that 'any company operating or intending to operate electrical conductors' in the city shall be obliged to file with the board of subway commissioners a 'map or maps, made to scale,' showing the proposed plan of construction of its underground electrical system; and shall also be obliged 'to obtain the approval by said board of said plan of construction so proposed' before any underground conduits shall be constructed. The board is further given the power to compel the construction of the electrical system in accordance with the plans approved by it, and to modify, from time to time, those plans, if the public interests should require it. This language is plain and unambiguous, and is broad enough to include any and every electrical company, irrespective of the date of its incorporation, operating or desiring to operate, either directly or indirectly, any lines of wire for telegraphic, telephonic, or illuminating purposes within the cities to which it is applicable, the city of New York confessedly being the only one affected.
Neither can it be said that the acts of 1885 and 1886 have a retroactive effect, at least so far as the relator is concerned, since whatever rights it obtained under the ordinance of 1883, which it accepted as the basis of the contract it claims to have entered into, were expressly subject to regulation, in their use, by the highest legislative power in the state acting for the benefit of all interests affected by those rights, and for the benefit of the public generally, so long as the relator's essential rights were not impaired or invaded. New Orleans Gas-Light Co. v. Louisiana Light, etc., Co., 115 U. S. 650, 6 Sup. Ct. Rep. 252; Stein v. Water Supply Co., 141 U. S. 67, 11 Sup. Ct. Rep. 892.
In order to determine whether the relator's essential right have been invaded, or the contract which it claims to have entered into impaired, or its property taken a way without due process of law, it will be necessary to ascertain what rights and property it possesses under the alleged contract of April 16, 1883. This contract, if such it be, must be gathered from the statutes of the state, under which the relator was organized, and the ordinance of the city, (which it accepted,) by which its privilege of constructing an underground electrical system was conferred. Recurring to the general telegraph act of 1848, and the acts amendatory thereof and supplemental thereto, the material provisions of which are set out above, it is observed that in none of those acts is there any unqualified right conferred upon any electrical company to construct its lines wherever or in whatever manner it might choose. On the contrary, in every one of those acts provision is made for the security of the rights of the public in the use of the streets and highways which may be used by the electric companies. Thus, in the act of 1848 the proviso is that the electric lines 'shall not be so constructed as to incommode the public use of said roads or highways, or injuriously interrupt the navigation of said waters.' Like restrictions are carried into the acts of 1853 and 1881; and the additional proviso is inserted in the act of 1881 that before any company shall be allowed to construct its lines in any city, village, or town it must 'first obtain from the common council of cities, the trustees of villages, or the commissioners of highways of towns permission to use the streets within such city, village, or town for the purposes herein set forth.' Here, then, in express terms, the power is reserved to regulate the use by the electrical companies of all the public highways of the state, and the rights conferred upon such companies are not absolute rights but the qualified right to construct their lines and operate them so as not to interfere with the public easements or the private rights of prior grantees.
Turning now to the ordinances of 1878 and 1883, the provisions of which were accepted by the relator on the 16th of April, 1883, which acceptance, it is claimed, constituted a contract between it and the city, we find that permission was given to the relator to lay its lines of wire underground, in and through the city, in accordance with certain specified plans of construction. These plans are elaborately described in those ordinances; the depth at which the wires are to be placed; the distance the conduits, test-boxes, and connection vaults must be placed from under-ground gas, sewer, steam, or water mains; the distance they are required to be from the curbstone; and the method employed in the construction,—are all specified with great particularity. And the supervision and control of these matters of excavation and construction, by the ordinance of 1878, devolve upon the commissioner of public works. Conceding, then, for present purposes, without deciding, that such was the case, that the relator had a contract with the city of New York for the laying of its wires, and the construction of its underground electrical system, the terms of the contract, as found in the statutes and the ordinances, gave the relator only the right to carry out the purposes of its organization in a manner which will in no wise interfere either with other underground systems and connections, such as gas, sewer, and water systems, already established and in operation, or with the rights of the public to use the streets, avenues, and highways of the city for the purposes of general travel. The rights of the public and the rights of prior occupants are to be respected and protected.
In what way, therefore, did the acts of 1885 and 1886 impair this contract? Did they take from there lator any rights which it theretofore possessed? Did they prohibit it from laying its lines and constructing its underground electrical system in accordance with the terms, and subject to the restrictions and conditions, of its said contract with the city? We think all these questions must be answered against the relator. The only thing that the acts of 1885 and 1886 did in this matter was to create a board of subway commissioners, whose duty it was to carry out the provisions of the ordinances of the city and the prior acts of the legislature relating to electric lines. The statutes of 1885 and 1886 did not prohibit the relator from carrying out the purposes of its organization, or from laying its wires underground. They simply said to it: 'Submit your plans and specifications of your electrical system to the board of subway 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.' 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, 14 N. E. Rep. 820.
The contention that the statutes referred to deprive the relator of its property without due process of law is equally without foundation. This argument rests upon the assumption that the legislature could not require the electric companies to pay the salaries of the subway commissioners, as provided in section 7 of the act of 1885, as amended in 1886; and that this requirement of the statute is in violation of the fourteenth amendment to the constitution of the United States. This contention cannot be sustained under the principles of Railroad Co. v. Gibbes, 142 U. S. 386, 12 Sup. Ct. Rep. 255. In that case it was held that a statute of South Carolina, requiring the salaries and expenses of the state railroad commission to be borne by the several corporations owning or operating railroads within the state, was not in conflict with the fourteenth amendment, which provides that no state shall 'deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'
There are no other features of the case that call for special consideration.