552
FEDERAL REPORTER, vol. 38. MAYOR OF CITY OF NEW YORK et al. April 15,1889.)
WESTERN UNION TEL. CO. 1.
'V.
({}ircuit Oourt,S. D. N6'IlJ York.
CONSTITUTIONAL LAw-FEDERAL AGENCIES-INTERSTATE COMMERCE-POLICE REGULATIONS.
:a.
LawsN. Y. 1884, c. 534: Id. 1885, c. 499, requiring all electric wires in any city having a population of 500,000 or more to be placed under the surface of the streets, is valid as a poUce regulation, as to a telegraph company which has accepted the provisions of act Congo July 24, 1866. and which thereby became, as to government business, an agency of the general government. and entitled W construct. etc., lines of telegraph over and alonK any postroad, etc., and which is au instrument of interstate commerce. The statute does ndt infriuge the power of congress to regulate commerce. or the exemp· tion of the agencies of the federal government from state control. SAME-SPECIAL PRIVILEGES.
The board ofcommissioners of electrical subways, created by the act of 1885, made a contract with a subway company to lay subways for the use of all electrical companies: authorizing the subway company to charge a rental for the use of the subways; reserving. to the commissioners such control over the subways as was calculated to secure, to all companies reasonable facilities and protection; and {lroviding that all companies using the subways should own, control, etc., theIr conductors, and that the commissioners would use all lawful means to campel all companies to use the subways and pay a fair rental therefor. Held. that Laws 1887, c. 716, ratifying contract. was none the less a police regulation because of the special privileges given to the subway company. Neither is the statute of 1887 invalid as a confiscation of property rights by deprivinlt cO!Xlpanies owning electric wires of their easements for the benefit of the subway company. ' OF LAW. .' ' 'I"
8.
4.
SUrE-MONOPOLIES AND PRIVILEGES.
As there is nothing in the contract precluding 'the commissioners from building subways or entering intocontraets with other companies for building them, sndas it extends only to such subways as the commissioners shall direct the company to build, and provides that nothing in it shall be construed as, KraI!-tiI!-g any exclusive privilege or franchise. the act does not violate Const. N. Y. art. 8, § 16,prohibiting any local bill granting to any corporation any exclusive privilege, immunity, or franchise. PRIVILEGE.
G.
But there is suc\l doubt as to the validity of the statutes to the extent that they permit the telegraph company to be deprived of its right to maintain its wires on the structures of an elevated railroad, .which is a post-road. that an injunction against any interference with the wires thereon should be granted until the question can be passed on by the court of last resort. the maintenance of·wires thereon not being attended with any public inconvenience. EQUITY-JURISDICTION-PU:&LIC AUTHORITIES.
Where the public authorities areuot acting malajide, the exercise of their discretion will not be reviewed in a court of equity on the allegation of the telegraph company that they are attempting to compel it to place its wires in insufficient and defective subways. ,
In Equity. Action by the Western Union Telf'graph Company against the mayor ofthe city of New York and others. Wager Swayne, George H. Fearons, and RU8hTaggart, for complainant. John M. Bowers and David J. Dean, for defendants. WALLACE, J. This case presents the general question whether certain acts of the municipal authorities of the city of New York, respecting
WESTERN UNION TEL. CO. V. MAYOR OF THE CITY OF NEW YORK.
553
matters 'of grave local concern, done or about to be done pursuant to powers devolved upon them by the legislature of the state, are such an invasion of the paramount authority of the national government as to render them unwarranted. The mere statement of this proposition shows that the complainant has properly invoked the jurisdiction of this court, and has a right to rely upon its interposition by injunction, if the acts of the defendants are thus unwarranted, are injurious to the complainant, and are of a nature remediable by courts of equity. Telegraph companies that have accepted the restrictions and obligations of the law of July 24,1866, (title65, Rev. St. U. S. ,) become, as to government· business. agencies of the general government, and are given the privilege to "construct, maintain, and operate" lines of telegraph over and along any post-road of the United StateEl, but not so as to interfere with "the ordinary travel" on such roads. All the streets of the city of New York are post-roads, because they are letter carrier routes; and all railroads are post-roads. Rev. St. § 3964. Thecomplainantacceptedthe provisions of this law of congress in 1867. A telegraph company occupies the same relation to commerce, as a carrier of messages, that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself. Telegraph companies are subject to the regulating power of congress in respect to their foreign and interstate commerce, and this power resides exclusively in congress. The complainant has long been engaged in interstate and foreign commerce. In the course of its operations the complainant has lawfully erected its poles, and strung its wires, ill and along many of the streets of New York city, which, as has been stated, are post-roads of the United States; arid it has also put up and now maintains over and along other streets a number of wires upon the structures of the Manhattan Railway Company, an elevated railway of the city, also a post-road, pursuant to a lease from the railway company. The defendants, assuming to proceed by the sanction and mandate of certain acts of the state legislature, have compelled the complainant to remove its poles and wires from some of the streets, and have notified it to'remove them from other streets, and to remove its wires from the structures of the elevated railway; and they propose, if the complainant fails to comply with these requirements, to remove the poles and wires themselves. Under these circumstances the complainant asks this court to examine the authority under which this destruction of its property is threatened, and determine whether there is any justification in law for acts which apparently invade its privilege to maintain and operate its lines upon the post-roads of the United States, interfere with its operations as a government agent, and interrupt and impede the discharge of its functions as an instrument of interstate and foreign commerce. It is not open to discussion that the complainant is protected by the national authority against any encroachment under state authority upon the rights and immunities expressly granted to it by the act of congress, or which it. enjoys in its dual capacity as an agent of the general government and an instrument.ofinterstate and foreign commerce. Speak-
FEDERAL REPOM'ER,
vol. 38.
ing of thepnroege' ctmferi'ed upon telegraph compa.nies by the act of congr,ess,the supreme c.ourt ofthe Uhited States, in.' Telegraph Co. v. Telegraph Co., 96 U. S. 1,11, useathis language: "It gives no foreign corpdrationthe right to enterupon private property without the consent of the owner,and 'erect necessary structures for itsbusiness; 'but it does prOVide that, whenever the consent of the owner is obtained. no state legislation shall prevent. the occupation of post-roads for telegraph purposes by such corporations as are, willing to avail themselves of its privileges." . ' "'.' Indeed, the language of one, of the very'latest opinions of that court 'upon the question of the power of the state to ,interfere with the right of a telegraph company to maintain and operate its lines along a post-road applies to the specific facts of this case, and, if literally interpreted, would control the present decision. The question before the court was :88 to the power of a state. to tax, the rea.I and personal property, within the state, ofa telegraph 'company which had accepted the provisions of the act of congress; but the court, while holding that the pri vilege granted did not exempt the telegraph company from such taxation, said: .." While 'the state could not interfere by any specific statute to prevent a cor'poration from placing its lines along these post-roads, or stop the use of them after'they were placed there,. nevertheless the company, receiving the benefit of the. Ia ws of the state for the protection of its property'and its rights, is lia,ble to upon, its, ,teal Or personal, property. as any other person would be."7'elegraph 00. v. 125 U. S. 548, 8 Sup. Ct. Rep· .961. ' .,. .. ;j'. ,.
.
. . ' .'
··..
·
',;Concerning the immunity ofthecQII:lplainant, a.san agent of the gen\eratg.o,vernment for the transaction of government business, from an un,warranted interference through state legIslation with it!3operations, the .d6ctrinefirst enunciated in M(;.OulJoch v. State, 4 Wheat. 316, and reiterated in subsequent adjudications.whenever the question has arisen, ·isJamiliar, that the, states have; no power,by taxation or otherwise, to ,retard,impede, burden, or in' any, mjl,nnercpntrol the agencies of the ·,fe8:eral.government, and they are from the effect of state legislation, so far as, that legislation may interfere with or impair their effi,ciency in performing tbe functions by whiobthey are designed to serve the'government. Respecting ,the position of the complainant as an in'stmment of interstate and foreign commerce, it suffices to, quote the Ian.guage Of the supreme court in ;one of the more recent cases in which the qnestior. was considered: . ;. "',Notwithstanding what is there said, [in previous judgments,] this court ,hold& now, and hll,s never held othel'wise,. that a statute of the to regulate, 01' to ,tax, ,or ioimpose any upon the'trlinsmission of persoils orp'roperty or telegraph m'essages 'from one state i\' not within that class of legislation which the states. may ellkct 'in'tInl a,bserice'of legislation:by' congress; and that such statutes are void even 'as'lk> thiltpartofsuch transmission which may be wHhin the state." BenZpo., '{.Illinois, 118 557,7 Sup. Ct. Rep. 4. , persons anqcorporaHolls enjoying privileges . 'the' United states; exerCising' federal agencies, and engaged in in-
WESTERN UNION TEL. CO. V MAYOR Ol'" THE ·.
OF NEW YORK.
terstate COmmerce, ,are DQt beyond the operation of the lawsof tlIe state in which they on their business; and it is only when these laws incapacitate or unrel!-80nably impede them in. the exercise of their federal. privileges or duties, and transcend the powers which each state possesses over its purely domestic affaira, whether of police or ternal commerce, that they invade the national jurisdiction. This .trine is well expressed in the words of the supreme court in Pattei'sO'n v. Kentucky, 97 U. S. 501, 504, as follows: "By the settled doctrines of this conrt the police power extends at least to the protection of the lives, the health. and the property of the community againsL the injurious exercise by any citizen of his own rights. State tion, strictly and legitimately for police purposes, does not, in the sense of the constitution, necessarily intrench upon any authority which has been confided; expressly. or by implication, to the national government. " The statutes which the defendants are proceeding to enforce tionably belong in the category of police regulations, the power to esta blish which has been left to the individual states. But statutes of this class may sometimes trench upon the federal jurisdiction; and when their provisions extend beyond a just regulation of rights for the public good, and unreasonably abridge or burden the privileges which the national authority conserves, they cease to be operative.. The state, when ing by legislation for the protection of the public health, the public als, or the public safety, is subject to the paramount authority of the constitution of the United States, and may not violate rights secured or guarantied by that instrument, or int,erfere with the execution of the powers confided to tht3 general government. Mugler v. Kansas, 123 U. S. 623, 663, 8 Sup. Ct. Rep. 273. In Morgan v. Louisiana, 118 U. S. 462, 6 Sup. Ct. Rep. 1114,:thi:J supreme court say: "In' all eases of this kind it has been repeatl'dly held that when a question is raisel! wb'ether the state statute is a just exercise of staLe power,or is intended by roundabout means to invade the domain of federal authol'itythis court will look into the operation and effect of the jitlltute to discern its purpose." And again the court Say, (page 464:) "For, While it may be a police power in the sense that all provisions for the health, comfort, and security of the citizens are police regulations and an exel'cise of the police power, it has been said more than once in this court that, even where such powers are so exercised as to come Within the dOlllain of federal ::.uthority, as defined by the constitution. the latter must pre\raU," Applying these principles, it is now to be considered whether the utes in question, or the acts of the defendants under them, can be de-fended under the state power of police regUlation, or whether what is proposed to be done exceeds in any respect theboundarieij of legitimate regulation, and encroaches upon the rights of the complainant founded upon the law of congress, or incidental to the nature of its commerce. By chapter 534 of the Laws of 1884 it was enacted. in effect, that all electric wires and cables in any city having a population of 500,000 or over should be placed under the surface of the streets, and the controlling the same should by a specil1ed date have the sallle
056
FEDERAL REPORTER,
vol. 38. I
from the surface; and the local governments of such cities were authorized to remove such wires and cables wherever found above ground in case the owner failed to comply with the provisions of the act. By chapter 499 of the Laws of 1885 a board of commissioners of electrical subways was created for such cities, and charged with the duty of enforcing the provisions of the previous act, and power was conferred upon them to devise and make ready a general plan of underground con-' duits, and to compel all companies operating electric wires to use the subways so prepared. They were also empowered to allow the wires to remain above ground when compatible with the public interest. In April, 1887, the commissioners for the city of New York entered into a contract with the Consolidated Telegraph & Electric Subway Company to lay subwa)'s in the city of New York for use of all the electrical companies when therefor by the commissioners. furnished witp plans and This contrMtauthorized the subway company to cha,rge a rental for the and conmined provisions reserving such a control use of the in the comw,issioners over them as Was calculated to secure to all comto use them reasonable facilities and protection. It conpanies tained aproV;ision by which all companies occupying space in the subways were to own their own conductors, and have the full management and contrpJ thereof, subject to the, rights of all other occupants, and to such reasonable rules and regulations as should be made by the COllimissioners. !talso contained a stipulation, that the commissioners would 1;Ise all lawful means to compel all companies to place their conductors in the .subways, and pay a fair rental for the use. By chapter 716 <;>fthe Laws of 1887 the legislature ratified and confirmed the contract made between the commissioners and the subway corporation; and the act provided that it' at any time the agreement should be found inoperative or ineffectual for the accomplishment of its just purposes the commissioners were empowered to make such new or different contracts with the same'or, other parties as might be reasonably necessary. The act also contained a provision authorizing an application to be made to the courts for It mandamu8 whenever it appears that the subway corporation or the commissioners have failed to furnish just and equal facilities to any company operating electrical conductors upon just and reasonable terms. By'sections 3 and 4 it declared as follows: "Sec,3. Whene.ver,in the opinion of the bu:ud bereinbefore constituted, in any street or locality of said city a sufficient construction of conduits or suqways underground shall be made, ready under theprovisiolls of this act, reference being had to the general direction and vicinity of the electrical conductoils then in use overhead, the said board shall notify the owners or operators of electrical conductors above groulld in such street or locality to mako'such electrical cunnections in said street 01' through other streets, 10calities,or parts of the city with such underground conduits or subways, so specified, as shall be determined by the saidboarc1, and to remove poles, or othel' ell;lctr,ical conductors above gruulld, and tbeir supporting fixture,,«;>r ot,ller,dev,tces,fl'om said street and locality within ninety days after notice, Such ,effect shall be given. This pruvision .iii! made a policeregulatiol1 in anll'for the city of New York, and in case, the several owners or operators Of'8tlcll'wires, and the owners of such poles, fixtures', or'devices,
WESTERN UlI/ION TEL. CO. V. MAYOR OF THE CITY OF NEW YORK.
557
shall not cause them to be -removed from such street or locality as required by such notice, it shall be the duty or the commissioner of public works of said city to cause the same to be removed forthwith by the bureau of incumbrances, upon the written order of the mayor of said city to that effect. Sec. 4. It shall be unlawful, after the passage of this act, for any ,corpora· tion or individual to take up the pavements of the streets of said city, or to excavate in any of said streets for the purpose of laying underground any electrical conductors, unless a permit, in writil)g, therefor shall have been first obtained from the said board or its predecessors; aud, except with such permission, no electrical conductors, poles, 01' other figures -or devices therefor, 1I0r any wires, shall hereaitel' be continued, erected, or maintained. or strung above ground in any part of said city. The said board of electrical control may establish, and from time to time may alter, add to, or amend, all proper and necessary rules. regulations, and provisions for the manner of use and management of the electrical conductors" and of the conduits or subways therefor constructed or contemplated under the provisions of this act, or of any act' herein mentioned." It was said of the acts 'of 1884 and 1885, by the court of appeals, (People-v.Squire, 107 N. Y. 593,) 14 N. E. Rep. 820, that they" "sprung out of a great evil, which in recent times has grown up and affiicted larg,: cities by the multiplication of rival and competing companies, organiZed for the purpose of distributing light, heat, water, the transportation of freight and passengf'rs, and between distant points"and which require in their enterprises the occupation of not only the surface and air above the streets, but indefinite space under ground. This evil h,ad become so great that every large city was covered with a network of cables and wires attached to poles, houses, buildings, and elevated structures, bringing danger, inconvenience; and annoyance to the public. ... ... ... The necessity of a remedy for th'se public annoyances had long been felt, and it finally culminated in the enactment of the sevefitl statutes referred to. These statutes were obviously intended to restrain and control, as far as practicable, the evils alluded to, by requiring aU such' wires to be placed' under ground in such cities, and be subject to the control and supervision of local officers who could reconcile and harmonize the claims of conflicting compaif nies -and obviate in some degree the evils which had grown to be not quite, intolerable to the public." , The act of 1887, by validating the contract between the commissionets and subway company, in efl'ect incorporated the terms of that contract into its provisions. But the statute is none the less an exerdse of the police power, and within the competency of the legislature, because of the special given to the subway company. ' It has. been urged that, in effect, this statute confiscates property rights of the complainant and other companies owning electric wires, by depl'iving them of their easements for the benefit of the subway company, and therefore cannot be sustained as an exercise of police power. But in the Cases, 16 Wall. 36, the supreme court upheld a statute far more obnoxious to these objections than the present act. In that case'the statute under consideration was one passed by the legislature of Louisiana, granting to a corporation created by it the ,exclusiva right for 25 years to have and maintain slaughter.h,ouses, landings,' and ('.attIe intended for sale or slaughter within certain parishes 'ofthat- state, ll1cluding the city of New Orleansj.· prohibitinga11
vol. 38. . other perspnsfrom, or. having landings, or yards for cattle intended fouale or slaughter; requiring that all cattle intended for sale or slaughter should be brought to the yards and slanghter-houses'ofthe cOl:porati'on; ahdauthorizing to exact certain fees for each animal slaughtered. This act was sustained as a police regulation by the court:. It has also been to the ayt of 1887 that contravenes section 16, art. 3, of the state constitution. prohibiting the legislaturefrom passing any local bill granting toaDy-corporation any exclusive privilege, immunity, or franchise·. ' Without intending to' intimate that such a question is properly to beco'nsidered by this court iIi the present case, it to say that the seems to be without substance. is nothing in the cQntract with the subway company which pre.cludes the commissioners from; building subways, or entering into contracts with other companies for building them, similar to the one made .witH the Ilubway company.· oIlly extends.to such subways as the commissioners shall dire<;t tb.esubway company to build,and it ,provides in express terms that l10thing in it shall be construed as grantjug to the subway company any exclusive privilege. or franchise. . , <The question, then, is whether 'or not these statutes unreasonably abridge or burden privilegesal:ld immunities which the complainant derives from the general government. In whateverlanguage a statute may .be framed, its purpose must b¢ determine(i by its natl1raland reasonable effect; and these statutes are t4 be judged. by the. exten.t. of the' powers only to the extent which they confer, and tl'eated. as to which their operation. can be justified by the police power of the state. Undoubtedly, in carrying them into effect, the complainant will be subjeoted to great expense, the' temlJora.ry interruption of its business, and possibly t() inconvenience and loss in coriducting its business. But, after all, the . question is one of reasonableness of the regulation, and whether the losses and inconveniences to which the complainant may be subjected are not such as may justly beex.acted of every common good. It is a settled princicitizen or property owner for ple, "growing out of the nature8f.well-ordered society; that every holder of property, however absoJute and unqualified may be his title, holds it ,lin,derthe hnplied liabilitythat his use of it shall not be injurious to the 'equal' enjoyment ot others having an equal right to the enjoyment of their .p,rqperty.no,r,injurious to. the rights,of the cOlnmunity." Com. v. Alger, ·. Q3·. This liability is quite irrespective of the source or charactfilr,()ffils .' Thus the OWllElr of a patent for ll:n invention-property »rhich is .created and only exists by force of the statutes of the United .only enjoy his .property "supject to the >complete and salnwhich the states have neverparted-of so defining and regulating the sale and use of property within .their J6spectivelimits as to:afford protectiop to tIle illan,y against the injn,rious condu.ct. of the few." u . .s. 501. Th.e. llqbordination ofthe property rightS of to the just exercise pf the police power of t§estate JS,a,.scomplete i,s to the taxing power of the state, which
WESTERN UNION TEL. CO, V.MAYOR OF THE
ciTY OF NEW YORK.
559
requires 'him to contribute his proportion of the burden of taxation. Indeed, the two powers of regUlation are' co-ordinateand OO'extensive, and the limitations upon one may well be ascertained by the limitations nponthe other. As is said by the court in Kidd v. Pearson, 128 U. S. 1,:9 Sup. Ct. Rep. 6: "The police power of a state is as broad and as its taxing power; and property within the state is subject to the operations of the former so long as Itis within the. regulating restrictions of the latter." And in a very recent adjudication it has been stated that the property within state of a telegraph cdmpany, privileged under the 1tlw Of congress'to maintain and. operate its lines over the post-roadsof.the United States, is subject to . the exercise of these two powers. In ,"elrr graph .co. v. Massachusetts,}'l.5 U. S. 548, 8 Sup·. Ct. court Sl1-y: ',"It ne,ver could have. been intended by the congreSs of the United in conferring upon a corporation of one state the authority to enter the territory of any other state and erect its poles and lines therein. to establisbttie proposition that such a company owed no obedience tathe laws·' of the·state ,towhiep entered. and was under JiO obligation to ,pay itsfair.propor· tion of .tpe necessary to, its II . · , It is ,not apparent how :the regulation' proposed impairs in any sense the privilege granted to the complainant by the law of congress. -The privilege to maintain telegraph wires "over and along" post-roadsis ')').ot- 'tQ,be oonstrued so literally as to e'X'cluae regulations by the; state -:respeoting location and mode ,of construction andmaintenanoo; whi(ih thepubliC'interestsd-emandj but is to be construed so asto 'give effeotto · tllemealling' cif cQhgress, which was to grant an easement.·that :would afford telegraph companies aU necessary facilities; and which ex'tent should be beyond the reach of hostilelegislaitionby the stittes. 'Thus interpreted, the grant is no moreil'lvaded when the regulation,re,quiresithewires to be placed in conduits under ground than it would'be . if they 'Were required robe pll'lced in conduits along the surface of·the 'streets j'and'"hen this becomes necessary for; the cornfort and safety of ,the community such a regulatidn>is as legitimate as ·one would be pre'scribing that the poles abouId be of a unifor'tn' ot ,designated' height, or ,should at given distances apart, or at designatedplacesa}()rtg ,the streets. Regulations of an analogous character, and entailing nearly , as on4!\rQus andexpensive bardens upon the propetty owner, are thol!le':by -which railroad companies have compelled to' maintain fences and -cattle-guardSj and in the instances where· the cornpetencyof such '·regula,tions hll'sbeen considered by the supreme coyrtit seems 'beell'llUggested that they were an unreasonable 'roads ofth'eUnited States, ortha agencies aBhe federal ·..w ith the' power ofcongress to regula.te comn-ierce. Railwdy,Oo:,i\r JctH'lt-nie8, Sup. et; Rep. 110; Railroad eo.v.:lleeht»ttN?9\\8\1p. ·OkRap. 20'7; The: ,legislatidn.in "l'egn1lition ;which is not practically .feasiblej'but 'what\is··preilciibetll,'if ijudiclously;eriforced',cail1be -complied iwithi by! We'compii.tlh:!s 61Mrtiting I
560
FEDERAL Rj<;P0RTER,
electric wires without serious detriment to, their instrumentalities. The expen,ge, and, the temporary or occasional interruptions and il1convenare incident to the scheme proposed, .constitute the extent of ,their sacrifice for the geneJ,'al comfort and convenience. Such legislation does not infringe upon the power of congress to regulate commerce, the exemption of the agencies of the general government from state The reports of the decisions of the supreme court abound with cases' illustrating the rule that all local arrangements and regulations'respeding highways, railroads, bridges, canals, ferries, and wharves withil. tlle state, their location, supervision, and details of management, though materially afl'ecting commerce, both internal and external, and thereby incidentally operating measurably upon the transaction of interstate commerce, are within the power and jurisdiction of the several states. When the regulations do not act upon the commerce through the local instruments to be employed after Cqming within the state, but directly upon business as it comes into state from without, or goes out from within', theyarenugatoryj otherwise they are valid. The most frequent are found in the exercise of the taxing power of the state; and the distinction has always beeh observed, though in many cases the line has seemed obscure, between tf'xation or regUlation of commerce itself, and of subjects which are merely auxiliary. So with respect to state legislation which touches the instrumentalities of.federalagencies. These agencies are exemptJtom state control by police regulation, or by the exercise of the taxing power, so far only as that legislation may interfere wHh or impair their efficienayin performing the functions by which they are designed to serve the government. Bank v. ann., 9 Wall. 803; Railroad Co. v. PeniBton, 18 Wall. 5. . . What has thus been said of these statutes has been confined to their effect as authorizing the municipal authorities to compel complainant to remove its poles and wires from the streets to the subways. There is serious .doubt whether the powers conferred by these statutes are not nugatory to the extent that they permit the complainant to' be deprived of its right to maintain and operate its wires upon the structures of the elevated railway. That railway is an independent post-road of the United States, in legal contemplation, carved out of the streets upon which its structures are erectedj and state legislation, under whatever power it may be classified, is impotent to destroy the privilege given by the act of congress. The power to remove the wires altogether from these structures, and. to refuse to permit them to be kept thereunder any circumstances, is not regulation, but is equivalent to a complete denial of the privilege.' S\lch.n power would seem to be as Obl'loxious to the federal privilege as that which was attempted to be exercised by the state of Florida in the statute considered by the supreme court in the Case of .Telegraph 00., 96 U.S. 1. The effect of that statute was to prec1udea telegraph company from constructing and operating its lines along the railroad of the Alabama & Florida Railroad Company, 'and to that extent the courts held it to be inoperative. Whether this conclusion is
CENTRAL TRUST
OF
NEW YORK
V.
WABASH, ST. L. &I
P.
RY.
00.
561
sound or not, inasmuch as the maintenance of the wires of the complainant upon the structures of the railway company is not at present attended with any public inconvenience, and the question is one of sufficient novelty and importance to be considered by the court of last resort, any doubt should be resolved in favor of the complainant, for the purpose of its temporary protection. It is alleged by the complainant that in proceeding to enforce these statutes the defendants are attempting to compel it to place its wires in some of the subways of the subway company which are insufficient and defective to a degree that will seriously affect the workings of its wires. Jtis needless to say that the defendants deny this averment. However the fact may be, the defendants are not acting mala fide, and as they are exercising discretionary powers as public officers, which are lawful within the scope of their authority, the exercise of that discretion in good faith will not be reviewed by a court of equity, and their determination is conclusive. The well-settled doctrine concerning the exercise of duties by public officers is that, so long as they confine themselves to such as are confided to them by law, the court will not interfere to see whether 'theY are acting wisely or judiciously. Gaines v. ThornpsO'n, 7 Wall. 347; Philipsv. Wickham, 1 Paige, 590; High, Inj. § 1240; 2 Story, Eq. Jur. (l3thEd.) § 955. An order will be entered denying an injunction, and vacating the stay heretofore granted as respects the removal of thl;l complainant's poles and wires from the streets, and granting an injunction against any interference by the defendants with the complainant's use of the structures of the Manhattan Railroad Company for operating and maintaining its lines.
CENTRAL TRUST Co. OF NEW YORK et al. 'V. WABASH, ST.L. &P. Ry. Co. et 01., (CINCINNATI, 1., ST. L. & C. Ry. Co., Intervenor.) . (Cirouit Court, E. D. 1. CONTRACTll-MuTUAL ASSENT. MiaBOUf'i,
E. D. May 1,1889.)
Intervenor's freight agent at Cincinnati telegraphed to the receivers' freight agent at Springfield. Ill.: "Am asked to name rate on coal for Gas Co., Cin't. tl? .Springlield, lll. Can I necessary rate, on agreed per cents.· Vla Lafayette?" The recelvers' agent "YOl,l are at liberty to make necessary rate on coke to Springfield Gas Co. and prorate on agreed 'per cents.' via Lafayette. Ind." Intervenor's agent, on receipt of this. rephed: "See my wire 29th regarding rate on coal for Gas Co., Springfield. Answer." This was ,responded to by a second telegram saying: "You are at liberty to make necessary rate on coal for Springfield Gas Co.," etc. Held, that the receivers could not repudiate the transaction on the ground that permission was given.to make a rate only on coke. and not on coal. . The recehcers' freight agent had lived in Springfield. Where the gas company referred to in the telegrams was located. for B number of years; and he admitted that if he had understood the telegrams to refer to coal, he would have taken them to mean a season's supply of coal for the gas company. Held, . ' "
2. SAME-'-CONSTRUCTJON-SURROUNDING CIRCUMSTANCES.
...38F.no.7 -36