People New York Electric Lines v. Squire

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.