Electric Imp. Co. v. City & County of San Francisco
45 F. 593
U.S. Circuit Court for the Dis...
1891
Check Treatment
Sawyer, J.

Without discussing the question at large, I shall content myself with a brief announcement of my conclusions in this case. After a careful consideration of the questions involved, I am satisfied that “ Ordinance No. 2163. Prohibiting the suspension of electric wires over, or upon the roofs of buildings,” etc., is a valid ordinance, passed within the legitimate police powers of the city, under the authority of the state. In Bartemeyer v. Iowa, 18 Wall. 138, Mr. Justice Field says, that the dissenting judges in the Slaughter-House Cases, “recognized the power of the state in its fullest extent, [the police power,] observing that it embraced all regulations affecting the health, good order, morals, peace and safety of society, and that all sorts of restrictions and burdens were imposed under it; and that when these were not in conflict with any constitutional prohibition, or fundamental principles, they could not be successfully assailed in a judicial tribunal.” So, in Butcher's Union, etc., Co. v. Crescent City, etc., Co., 111 U. S. 747, 4 Sup. Ct. Rep. 652, the court, quoting from Chancellor Kent, says:

“Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building of combustible materials, and the burial of. the dead, may all be interdicted by the law in the midst oí dense population, on the general and rational principle that every person ought to so use his property as not to injure his neighbors; and that private intei-ests must be made subservient to thegeneral interests of the community. ’’

*595In Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357, and Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. Rep. 730, the court distinctly hold, upon a much milder case of danger than this, that the fourteenth amendment in no respect interferes with, or limits theexeir/ise of this police power. The exercise of no other branch of this power is more important, than that, which protects, or seeks to protect, the public safety of a great city, like San Francisco. That the stretching of these wires over buildings in the manner practiced, as shown by the evidence, no One, I think can doubt after reading the affidavits, is extremely dangerous, both as being liable to originate fires, and aS obstructions to the extinguishment of fires otherwise originated. Indeed, the danger is a matter of common knowledge. We might almost as well require strict proof of the danger of storing gunpowder, or dynamite, in, under, upon, or about our houses. Even if these wires can bo so put up and insulated as to be safe, in the mode suggested by one of complainant’s witnesses, Prof. Kieth, it has not been done. The professor himself does not claim thatthoy are, now, safe. The danger is of a character cognate to that of gunpowder. There is, doubtless, a difference in.the degree of the danger, but, the consequences are liable to be far more widespread and calamitous. Should a raging fire occur, originated by the electric current, or otherwise, these dangerous wires might so obstruct the efforts of the firemen to extinguish it, as to result in the destruction of the entire city. It is, certainly, competent under the police powers of the state, to suppress such dangerous erections, in the interest of the common safety of the, community. Who can say, in view of the constant, and perpetual menace, that the provisions' of this ordinance are unreasonable? Is it unreasonable because the remedy against the great public and private nuisance is prompt, and efficient, when no other remedy is certain to be equally so? Wo know not how soon a calamity from this source may come upon us. It may be while we are litigating the question. If one should store a Largo quantity of gunpowder or dynamite among the buildings in the midst of the city, would a like remedy bo doomed unreasonable, or inadmissible, or void, as not being due process of law? The fact, jS) iho gunpowder has no right to be there. It is a standing and dangerous menace to the neighborhood, which any one affected by the nuisance has a right to abate. And when it is so extended as to become a public menace and nuisance, the public officers, especially, when specifically authorized to do so. can lawfully abate it. And such a constant, and continuous menace and nuisance, in a less degree perhaps, it is manifest, these wires erected as they appear to be, are. They have no more right to he there than gunpowder. The only wonder is that owners of buildings in view of the recognized danger will permit their use for such purposes. True, the supervisors cannot make an article dangerous, by simply declaring it to be so, when, in fact, it is not. But the practice, as it now prevails, against which this ordinance is directed, is shown to be dangerous, and, we, ourselves, all know it to be so. There can be no successful disputing' of the fact. The order is general and applicable to all. If it is not enforced as to all, it ought to be, and the chief *596of police declares his purpose to enforce it, in all cases, that come to his notice. I see no good reason to believe, that it was passed for the purpose of discrimination in favor of another company, as claimed, or that it is intended to be so enforced. I do not think it violates any provision of the national constitution. I regret to be obliged, by this decision, to affect, so seriously, the interests of the enterprising parties, who are endeavoring to supply our citizens with electricity for the various purposes to which it is now applied. But I cannot decline to administer the law as I find it, for the- safety and security of the lives and property of the citizens of San Francisco. In accordance with the conclusions, which I have reached, an injunction must be denied, and it is so ordered.