The San Francisco call., 1898-02-13

of it's tenure, concluded to put the en- joyment of it's rights on higher grounds and under paramount authority. Can It now be said that the complainant can- not avail itself of the privileges of the act of 1866. and must look for them to the City Council, because formerly the city granted privileges which 1t has re- voked? Can contract. revocable and revoked by one party, still bind the other party after it's revocation?
 The complainant is not now using the post roads of the city of Richmond under any grant from the City Council. The Council themselves, by their own act, with the complainant. But for the act or Congress, it would be trespasser on these post roads. Under the act Of Congress, it has the right to construct, maintain and operate lines of telegraph over and along any of the post roads of the United States, and when an effort Is made, or threatened, to deal with 1t as trespasser, it can refer to that act
 3. The next question is: To what ex- tent does the protection of the act of Congress go. Does 1t free the company accepting It's provisions from any control of the municipality through whose streets 1t may go?
 TO WHAT EXTENT.
 This act of 1866 authorizes the company accepting its provisions to maintain and operate its lines on any postroad. The lines of telegraph must not interfere with the ordinary travel. It is, therefore, sub ordinate to the public use The privileges of this act, like any other franchise, are to be exercised in subordination to public as to private rights" (St. Louis vs. Western Union Telegraph Company, 14S U, s., lO0l, These privileges must be en- joyed, subject to the lawful exercise of the police power. In Western Union Tel egraph Company vS. Massac achusetts 125 U. S., 030 telegraph company, protected by the act of 1866, and engaged in busi- ness as a common carrier, was held to be subject of taxation by a State. The Su- preme Court uses this language: Tt never could have been intended by the Congress of the United States in confer ring upon corporation of one State the authority to enter the territory of any other State and erect poles and lines therein, to establish the proposition that such company owed no obedience to the laws of the State into which it thus entered.
 In the case of St Louis vs Western Union Telegraph Company, supra, a charge by a city for poles was held valid against this same company, the only lim- itation being that the charge be not un- reasonable. In Western Union Telegraph Company vs. the Mayor, 3 Law Reports Ann, 44s. an ordinance requiring that tel egraph wires be placed in conduitS was sustained. Streets and alleys in a city are the public property placed under the supervision and control of the municipal lty, the representatives of the sovereign power. They exercise this supervision and control for the benefit of the whole ] ing through such streets and alleys. And Tn the exercise of this supervision, which IS the police power, they must see to it that the rights of the public and of pri- vate persons are not infringed.
 The complainant, under the act of Con- gress, has the right to use these high ways. Neither the State nor any munich pality can prevent it. But this use must be subordinate to the rights of the pub lie, must not endanger those rights. And as the municipality is the guardian of the ord tnlN N1feta lawful provisions as may regulate the use, always. however, avoiding such reg ulations as will make the use burden some and intolerable. and so practically impossible. (City of Philadelphia vs. Western Union Telegraph Company. S2 Fed Rep, 7&.)
 This being SO, the injunction granted language and effect. There should have been the recognition of a proper exercise of the police power by the municipal cor of its poles and lines should have been declared to be subject to such regula- tions and restrictions as may now or may be herafter imposed by the City Council of Richmond, In the proper and lawful exercise of the police power.
 INTOLERABLE AND IMPOSSIBLE.
 The only remaining question is. do the ordinances of the city of Richmond pre- scribe regulations which will make the use burdensome and intolerable, and practically Impossible?
 Tt belongs to the Legislature to exer. else the police power of the State, sub' sect to the power of the courts to ad- judge whether any particular law is an invasion to rights secured by the constf- tuition" (Mugler vs. Kansas, 123 U. S., 623) ''The Legislature may not, under the guise of protecting the public inter ests, arbitrarily interfere with private businesses of or impose unusual and un- necessary restrictions upon lawful occu- pations. In other words, it's determine ton as to what is proper exercise of it's police power is not final or conclusive, but is subject to the supervision of the courts' Qawton vs. Steele, 152 U. S.. 137) If this be the case with regard to the Legislature fortiori it applies to a municipal corporation, the creature of the Legislature.
 On examination of these ordinances it will be seen that as a condition precedent to the use of the streets of Richmond, pose of erecting and maintaining poles and wires for telephone purposes, in ac- cordance with the conditions of that or dinance, and such conditions as the Coun- cil may see fit to impose. Ordinance approved 10th September, 1s95.) The sev- enth section of that ordinance expressly reserves to the City Council the right to put at any time other restrictions and regulations And the whole tenor and effect of the ordinance is to put the com pany absolutely under the control of the city. And the terms of the ordinance are enforcible under heavy penalties. The next ordinance-the one providing for wires in conduits-after providing that the City Council may compel the removal of wires from poles overhead in certain streets and the putting them in conduits in certain streets, under penalty of not less than S100 or more than $500 for each pole per week, provision is made for per mission to build conduits of sufficient ca pacity to accommodate the wires in such streets and to provide for an increase thereof to at least the extent of 100 per cent, the increase of space not to be oc- cupied by the party building the conduits without the consent of the Council the conduit to be used for the wires of the Council free, and the City Council to allow any other person or corpora tion to use such conduit for wires upon paying compensation in the mode prescribed by the City Council. This privilege of build ing and owning conduitS to last no longer than fifteen years, at the end of which time the city may put such other restric- tions, conditions and charges as 1t may see fit, or may order their removal at the expense of the owner. The charge for using or owning any wire in any such conduit shall be for each year until Jan uary l, 1900, S2 per wire per mile; af- ter January l, 1900 such larger com pensation for the rest of the term as the City Council may see fit.
 These are some of the conditions now imposed, with the right to i'm pose any others which the Coun- ell may see fit. Now it goes without saying that if the complainant, notwith- standing its claim of protection under the