154 Ga. 731 | Ga. | 1922
The Georgia Railway & Power Co. and the Georgia Railway & Electric Co. brought an equitable petition against the City of Atlanta, the Mayor and General Council of said city, and H. L. Collier, as chief of construction of said city, to prevent the defendants from interfering with and preventing them from making certain installations in the streets of the City of Atlanta, which they contended were necessary to enable them to exercise their rights under their franchises, in furnishing com
The material allegations of the companies’ petition are the following: That by virtue of their charter rights and franchises they had the right to make certain installations fully described in their petition, upon complying with all reasonable police powers, and regulations of the city. That the companies and their predecessors entitled under their franchises from the city had the right to make 'use of the streets under police regulations, and to place under the surface thereof, and maintain and use all necessary conduits, wires, manholes, service-boxes, etc., for the purpose of conducting, supplying, and distributing electricity for heat, lights, and power to the public, and for the purpose of extending, operating, repairing, and renewing the same. That on December 9, 1921, by the reason of the growth of said city, and of their public business, and particularly within the inner fire limits, or underground district, it became necessary for them to lay additional conduits, cables, manholes, and appliances; and on January 13, 1922, they made application to the city for permission to open Ivy Street, Auburn Avenue and James Street for the purpose of constructing these duct lines and five manholes. On January 18, 1922, the city issued to the companies two permits authorizing the construction of the duct lines and manholes in said streets, upon conditions previously fixedtby the General Council of the city. The .condition fixed to these permits (which is the storm center of the instant litigation) reads as follows:
“ The city reserves the right at any time, after six months notice to said applicant company (said applicant company being the ■ applicant above named) to rescind and repeal the grants herein made and without liability to the city on account thereof; provided that the same agrees not to rescind or repeal permits except to accommodate- public or municipal purposes, and not for the purposes of accommodating private individuals or private purposes.”
On January 19, 1922, the companies declined to accept the permits with said condition fixed thereto.
The companies’ petition further alleges, that the extension of
The prayers of said petition are, that defendants be enjoined from denying to the companies their contract rights to install their appliances in said streets; from interfering with them in the exercise of said rights, etc.; from affixing or attempting to affix upon said permits said illegal conditions, especially said condition of revocability at will; and that defendants be required to allow said companies the free exercise of their contract rights in doing said work, subject to reasonable police regulations, and to issue to petitioners such permits as may be necessarjr to accomplish said purpose; and that defendants be enjoined from completing the pavement on Auburn Avenue until petitioners’ structures are built below said street.
The following is substantially the answer of the defendant city:
- The issues in the case, both of law and fact, were, by agreement of the parties, submitted to the court to pass upon the same both
'' (1) That the franchise granted by ordinance of 1899, authorizing the Georgia Electric Light Company to use the streets, avenues, alleys, and public places of the City of Atlanta as in said ordinance provided, and the franchise granted the Georgia Eailway & Electric Co., by ordinance of 1902, to use the streets, avenues, alleys, and public places of the City of Atlanta as therein specified, and the franchise granted the Georgia Eailway & Power Co., by ordinance of 1912, to use the .streets, avenues, alleys, and public' places of the City of Atlanta as therein provided, constitutes a perpetual franchise, and the contracts executed by the acceptance of the same are now of force and effect and existing and operating.
“ (2) That the raise of rates for the furnishing of electricity for light, heat, and power, ordered by the Eailroad Commission of Georgia, upon the application of the Georgia Eailway & Power Co., did not afford the City of Atlanta any right of defense to the present case, by reason thereof.
“ (3) That the City of Atlanta had the legal right to affix to said permits the condition which is attached in the petition, to wit: ' The city reserves the right at any time, after six months notice to said applicant company, to rescind and repeal the grants herein made, and without liability to the city on account thereof; provided that the city agrees not to rescind or repeal permit except to accommodate public, or municipal purposes, and not for the purpose of accommodating private individuals or private purposes/ « the counsel for the city having stated in judicio, and said statement being made a part of this finding, that the words ' public purposes/ above set out, mean the same thing as the words 'municipal purposes/
" (4) The City of Atlanta had the right and power to affix the said condition to said permits as against all the contentions of the plaintiffs as set out in their petition.
“ (5) And it is further ordered, adjudged, and decreed that all the prayers of the plaintiffs as contained in the petition, both for injunction and for the issuance of said permits, be and the same are hereby denied; and final judgment is hereby rendered in*738 said case in favor of the defendants and against plaintiffs for costs, etc."
The evidence introduced, other than the petition and answer, while somewhat voluminous, is not in conflict, except in a few instances pertaining to the necessity of the installation of the manholes in question, and the reasonableness of the size of the same.
F. B. Davenport, a witness for the companies, testified, in part, as follows: He is an electrical engineer; he graduated from the Georgia School of Technology in 1904, with the degree of B. S. in Electrical Engineering. He is familiar with the underground electrical distribution system of the Georgia Railway & Power Co. in the City of Atlanta; he prepared the application for the permit for the underground conduits, manholes, etc., which are involved in this suit. He is acquainted with the proposed conduits, manholes, etc., and their uses, and of the necessity for the construction and maintenance of said conduits, manholes, and other structures for the purpose of conducting, supplying, and distributing electricity for use in the City of Atlanta. These manholes are necessary at all street intersections, for the purpose of feeding into the cross-streets; they are likewise necessary for the purpose of taking off service connections to customers along the way or in the immediate neighborhood. The depth of the manhole structure is approximately eight feet. These manhole structures consist of brick masonry walls, the top thereof being covered with reinforced concrete, reinforced with railroad rails, the top of the structure being approximately one foot below the surface of the street, the opening into the surface of the street being circular in form, having a diameter of thirty-five inches, and covered with a cast-iron manhole top or cover; the structure is designed to and will support the street traffic, and when completed it does not interfere with or impede or diminish in any way the full use of the surface of the street. This conduit line and these manholes are needed at the present time, to meet the increased' demands for electrical service in .the City of Atlanta, and particularly in the inner fire limits of the city.' The conduits, manholes, and structures are no larger than are reasonably required for the business and purpose of conveying and distributing electricity for light, heat, or power within the close or inner district of the fire limits of the city. Hn
The plaintiffs introduced in evidence a franchise granted by the City of Atlanta in 1899 to the Georgia Electric Light Co., its successors and assigns, as follows:
“ Sec. 1. That the Mayor and General Council of the City of Atlanta do ordain that the right and privilege is hereby .granted to the Georgia Electric Light Co., its successors and its assigns, to open the streets, avenues, alle3?s, and public places (or such of them as it may from time to time deem necessary or proper) within the close or inner district of the fire limits of the City of Atlanta, as said district is now defined by the ordinances of the City of Atlanta, and to lay, maintain, and use therein tubes, conduits, duets, wires, conductors, cables, insulators, manholes, and all necessary appliances and connections for the business and purpose of conveying, using, conducting, supplying, and distributing electricity for light, heat, or power for public or private use for the unexpired period covered by its franchise heretofore granted.
“ Sec. 2. This right and franchise granted, however, only upon*740 the following conditions: . . Fifth condition: Said company, its successors and assigns, shall further submit and be subject to such reasonable regulation in the establishment and maintaining their system of underground conduits, etc., as the Mayor and General Council may hereafter, from time to time, ordain.
E. C. Turner, for the city, testified as follows: He is City Electrician of the City of Atlanta; it is within the scope of his duties to supervise all electrical construction within the corporate limits of the City of Atlanta. The Georgia Eailway & Power Co. now has and is using, within the City of Atlanta, a number of transformer stations which are located on private property; among some of said stations are the Transporation Building on Marietta Street; another in Ponce de Leon Apartments. The plaintiffs have and also maintain transformer substations at several places in the city. In order to serve the general public with heat, light, and power generated by electrical current, it is not absolutely essential for transformer stations to be located under the surface of the street; but the same service could be rendered by locating the transformers ■ on private property, by exercising due regard for the protection of life and property.
H. L. Collier, for the city, testified as follows: He is present Chief of Construction of the City of Atlanta, and at different times has been connected with the engineering and construction department of the city for many years. Heretofore, up to about three years ago, neither the Georgia Eailway & Electric Co., 'nor the Ga. Eailway & Power Co., nor their predecessors in this city used underground or subsurface vaults for transformers of the size and dimensions as now proposed' by plaintiffs. Such vaults as they have heretofore used have been about six feet by eight feet in size, and only a limited number of them. Hnderground rooms or vaults of the size of 11 feet and 4 inches by 16 feet and 4 inches, and of the other sizes which plaintiffs propose to construct, and for which they have asked for permits, will interfere with the use which the city is required to make of the underground portion of the street, and from time to time extending its sewer-pipes and mains and its water-pipes and mains. Sewers are required to be run on a regular grade, sometimes about 12 or 15 feet underground, but more often at a smaller depth; these depths are oftentimes not more than from 2 to 6 feet underground. On Auburn
Depositions of F. B. Davenport, introduced by the city, read as follows: I am one of the assistant engineers of the Electrical department of the Georgia Bailway & Power Company. I am familiar with the construction and uses which these transformer vaults, to install which I have made application to the mayor and general council. I am familiar with the plans and specifications of these proposed structures. The proposed vault in Ivy Street is to be 16 feet, 4 inches, by 11 feet, 4 inches, exterior dimensions. The width of Ivy Street at this point I estimate to be 40 feet. The portion of the street these car lines occupy is about 14 feet. The size of the usual water-main in the down-town section of the city, some are 12-inch and some are 14-inch mains. It would be impractical to run such sewer-pipe through this structure. It is not true that we contemplate, in the construction and maintenance and use of this vault and similar vaults, that our company shall have the exclusive use of the interior of these structures. That is, of course, if there is a reasonable case where any other party want to go through that hole- — finds-it necessary to go through that hole with a reasonable size construction, it is perfectly feasible for them to do it. There are cases in town where this is done; there would be only certain kinds of service that could be rendered the utility companies by passing through this particular kind of vault; it would not admit of general use for that purpose. The company has transformer stations in the city, located at places other than those in the public streets of the City of Atlanta; located on private property; they have transformers in the streets too. There are 52
Aside from the questions raised in the cross-bill of exceptions filed by the city, the latter concedes that the companies, by virtue of the charter rights granted them by the State and the franchise rights granted them by the citjq have the privilege and right of entering upon the streets* of the city for the purpose of constructing conduits, laying ducts and building manholes, but denies the right of the companies to use the streets of the city for the purpose of building transformer stations therein. On the other hand the companies contend that their right to install the manholes applied for unconditionally is legitimately within the purview of the charters and franchises granted them, and that the effort of the city to grant the permit in question on said condition is an impairment of their contract rights with the city. It seems, therefore, that the paramount and controlling questions are, what are the rights of the companies under their charters and franchises, and of the City of Atlanta under its delegated and implied powers as a municipality, so far as the same relate to the acts sought to be enjoined? Let us consider first the rights and duties in general of the city to control and regulate its streets.
"Without express legislative authority, a municipality cannot grant to any person the right to erect or maintain a structure or obstruction in a public street.” Civil Code, § 894. " When opened the streets are usualty subject to the control and regulation of the municipality, subject to the paramount authority of the State to resume its power at will. This municipal power, however, is liberally construed so as to effect the object of the grant and authorize the control of the entire length and breadth of the street; also above and below the surface as far as any proper street use may require, but not beyond the street line. A municipality ordinarily has the power to prohibit the obstruction of streets, and to fix the penalty for violation thereof; and ordinarily the determination of the common council that certain things are obstructions cannot be reviewed.” 28 Cyc. 848, 849, 850. " The measure of municipal power to regulate the use of streets by quasi-public corporations chartered by the State to supply the public with water, light, conveyance, heat, information, and other conveniences, depends
In the case of Simon v. Atlanta, 67 Ga. 618 (44 Am. R. 739) it was held, “that streets and public places belong to the general as well as the local public; and that if the control and general supervision of streets is conferred by the legislature upon the municipality, such a corporation holds them in trust for the convenience and use of the public at large, and it becomes its duty not only to keep them in safe and suitable condition for the passage of persons and transportation of commodities, but the duty also devolves upon it of keeping them free from any such unauthorized obstructions as may permanently or unreasonably interfere with their public use and enjoyment. . . Usually this power is conferred in such general terms that it may be well said that municipalities in our State generally have the authority to open, care for, regulate, and improve their streets, and, when taken in connection with other powers, have all necessary authority to keep the streets free from obstructions, and to prevent the improper use of the same, and to pass such ordinances as will effectuate such an end. But with reference to streets in populous places the public convenience will require more than the mere right to pass over thém.
In the case of Macon Consolidated Street R. Co. v. City of Macon, 112 Ga. 782 (38 S. E. 60), the question involved was whether or not the city had the right, by a resolution, to require said railroad to change the location of its track from the side to the center of a certain street, the track having been originally laid
“Municipal corporations ‘may make authorized contracts, but they have no power as a party to make contracts or pass by-laws which shall cede away, control, or embarrass their legislative or »governmental powers, or which shall disable them from performing their public duties.’ 1 Dillon, Mun. Cor. (4th ed.) § 97. ‘A city cannot alienate its governmental and police powers.’ Elliott’s Eds. & Sts., § 805. ‘ It may be said, generally, that the State, or its duly authorized municipality, may require a street-railway company to do whatever is required for the health, safety, and welfare of the community; for the authority to enact measures for this purpose never passes from the sovereign, no matter what grants it may make.’ Ibid. § 758. . . ‘While municipalities, when authorized so to do, doubtless have the power to make certain contracts with respect to the use of their streets, which are obligatory upon them [citing authorities], the general rule to be extracted from the authorities is that the legislative power vested in municipal bodies is something which cannot be bartered away in such manner as to disable them from the performance of their public functions.’ [Citing Wabash Railroad Co. v. Defiance, 167 D. S. 88 (17 Sup. Ct. 748, 42 L. ed. 87)]. The City of Macon having no power to make a contract whereby it surrendered its power to require the plaintiff in error to move its tracks from one part of the street to another, whenever such removal was necessary for the public welfare, such agreement made by the city cannot be used as the foundation for an estoppel to prevent the city from exercising its discretionary power to require such a change to be made.”
“ Municipalities are charged not only with the duty of regulating their streets, but also of controlling the same for the use and benefit of the public in general; and in the exercise of these governmental functions, there is necessarily a broad discretion vested in these municipalities, which will not be disturbed by the
It will be observed that the original franchise granted by the city in 1899 to the Georgia Electric Light Co. (which company is properly termed the parent one), whereby this .company, obtained the right and franchise to open streets “within the close or inner district of the fire limits of the city, . . and to lay, maintain, and use therein tubes, conduits, ducts, wires, conductors, cables, insulators, manholes, and all necessary appliances and connections for the business and purpose of conveying, using, conducting, supplying, and distributing electricity for light, heat, or power for public or private use,” was granted only upon certain conditions. The fifth condition in this grant being as follows: “ Said company, its successors and assigns, shall further submit and be subject to such reasonable regulation in the establishment and maintaining their system of underground conduits, etc., as the Mayor and General Council may hereafter, from time to time, ordain. By regular deeds of purchase and conveyance this franchise was transferred to the plaintiffs. By virtue of a consolidation ordinance passed by the city in 1902, the terms -and conditions of said franchise became a part of the franchise under which the companies were operating at the time the permits in question were applied for. Can it be said that a court sitting both as a judge and a jury would not be authorized in concluding that the “permits” in question are within the purview of the above fifth condition of the companies’ franchise? The only limitation placed upon the city in regulating the “ establishment ” of the companies’ system is that the same shall be reasonable. The reasonableness or unreasonableness of the “ permits ” in question was a fact for the judge to determine under all the evidence submitted to him. From the
The city’s sworn answer in the case was a part of the evidence submitted to the presiding judge. In this answer we find the following : “ These defendants take issue upon the use of the word ‘manhole’ and insist that petitioners desire to construct transformer stations or vaults at the places named.” “ That such station or vault would practically usurp one side of the street, and either prevent or render doubtful any further use of that side of the street for such municipal purposes as sewers and water-pipes, , or from any other proper and public use thereof. “ The term f manhole,’ as used in the ordinances, describes an occupation of a portion of a street of sufficient size to permit corners to be turned and the presence of a man in said hole to make necessary adjustments.” “The city denies that these ordinances contemplated the erection of vaults of the size now proposed, in which "vault large transformers will be installed, and which vaults are of such size as to monopolize the side of the street in which they are constructed.” B. C. Turner, city electrician, testified: “ That in order to serve the general public with heat, light, and power generated by electrical current, it is not absolutely essential for transformer stations to be located under the surface of the street; but that the same service could be rendered by locating the transformers on private property.” In fact the evidence discloses that the companies have transformers located on private property. H. L. Collier, chief of construction of the city, testified: “ That underground rooms or vaults of the size of 11 feet 4 inches by 16 feet four inches, and of the other sizes which plaintiffs propose to construct, and for which they have asked for permits, will interfere with the use which the city is required to make of the underground portion of the street, and from time to time extending its sewer pipes and mains and also its water-pipes and mains.”
It is quite certain that the city has the inherent and sovereign power, as a municipal corporation, to pass all necessary regulations as will protect its drainage and water systems; and it is equally certain that these powers cannot be surrendered by- contract, grants, franchises, or otherwise. In the case of the City of Augusta v. Cleveland, 148 Ga. 734 (98 S. E. 345), this court held that
Able and learned counsel for the plaintiffs argue with considerable force, that, while the city has the right, ir the exercise of its police power, to regulate the installations in question, the condition affixed to the permits is not a legitimate exercise of the police power, but is an impairment of the companies’ contract rights with the city under their franchises. It is often quite difficult to determine whether a certain municipal act is a lawful one as being within the scope of its police power, or whether it is an unlawful one as impairing contract rights. Oftentimes the line of demarcation is so close, as in the instant case, that the classification of the act in question cannot be made by considering only the nature of the act itself, but all the attending circumstances of its commission must be well considered. When we view this case from this light, we are driven to the conclusion that the city, in affixing the condition to the permits in question, was within the legitimate exercise of its police power, and in so doing no contract right of the companies was impaired thereby. “A municipality, in the public interest, has authority to prescribe the plan and location of the pipes and hydrants of a water company.” 40 Cyc. 782. “ Corporations which receive franchises take granted privileges subject to the power of the State to require them at all times to do whatever may be necessary for the health, safety, and welfare of the community.” 33 E. C. L. § 33. “Although the grant of a utility franchise must, unless otherwise provided, be held to be in perpetuity, jret it is subject to the full exertion of the police power of the State in respect of the mode of conducting the business and the character and quality of the services rendered. For example, the State may at all times regulate the size and location of poles, the height of wires from the surface of the ground, and 'their location in the street; and when poles and wires become a
There can be no question as to the right of the companies to install manholes, conduits, etc., in the streets of the city, by virtue of their franchises, subject to reasonable regulations that may be prescribed by the city authorities. However, this right .to install manholes does not mean the right to establish any size the company may deem proper. Therefore, if the city has the authority to regulate the size and prohibit the installation of manholes of an unreasonable size, the fact that it permits the companies to establish manholes of a size it deems unreasonable cannot invalidate a condition attached to such permit to the effect that the companies are to remove these manholes on six months’ notice whenever the municipal necessities require it, and such removal to be without compensation. As to the right of the city to affix conditions to franchises, see 19 B. C. L. 1153; 13 B. C. L. 193; 36 C. J. 1031. A reasonable construction of the condition affixed to the permits in question, when viewed in the light of all the evidence submitted, is that the city could not disturb any of the manholes established under the permit, except when governmental or municipal purposes required it. The language of the permit seems to preclude even the right of the city to interfere with such manholes should the city become a competitor of the company and the manholes should prove to be an obstruction to its operation. It seems that the city has been somewhat laborious in its effort to convey the idea that it would not disturb the companies’ manholes, ,etc., established under the permit, except for municipal or governmental purposes. The use of the words, “ and not for the purpose of accommodating private individuals or private purposes,” when taken in connection with the preceding words, “public or municipal purposes,” in the permits in question, evidently means that the city could not “rescind and repeal the grants,” unless it became necessary for governmental or municipal purposes. This meaning is reinforced by the city’s attorney’s admission in judieio,
Counsel for the companies in their briefs cite authority to the effect that “municipal purposes” may be private purposes as distinguished from governmental or police power and regulations. That is true; and it will be observed that the words “private purposes” are used in the permit for the sole purpose of distinguishing such purposes from “ municipal purposes.” “ Municipal purposes are public or governmental purposes as distinguished from private purposes.” 5 Words & Phrases, 4629.
After giving the entire voluminous record in the instant case mature consideration, and keeping in view the principle of strict construction of grants and franchises in favor of the public, yet giving them a fair and reasonable construction, the conclusion is reached that the city had the right to affix the condition to the permits in question, and that by doing so no right of the companies has been violated, either under their franchises or under the laws of the State or of the United States.
Beck, P. J. I am of the opinion that the judgment of the court below should be affirmed on the grounds stated by Judge Hodges in construing the judgment and decree of the court below. And giving to that decree the construction thus placed upon it, an order for the removal of the structure in question, which the plaintiff in error proposes to place in the street under the surface, would amount to nothing more than an exer'cise of the police power.
Tarver; Judge. I cannot agree that the effect - of the language in the reservation attached by the city to the permit was merely an exercise of its police power, and that in the exercise of the rights thus reserved hereafter it will be limited to purposes of a governmental nature, as distinguished from those in which a municipality is not acting for the preservation of the public morality, peace, safety, and health. The operation of a system of waterworks, for example, is not the exercise by a city of a purely govermnental function. Huey v. Atlanta, 8 Ga. App. 597 (70 S. E. 71). The reasoning of Judge Hodges leads also to the conclusion, and logically so if police power regulation alone is contemplated by the language of the permit, that the permit “seems to preclude even the right of the city to interfere with such manholes, should the
Having this view of the meaning of the permit with the condition attached, the question remains, in so far as my conclusion is concerned, whether or not such a reservation is an impairment of the contract rights of the plaintiffs, evidenced by the various franchises granted them by the city, and is an attempt on the part of the city to deprive the company of property without due process of law. If the franchises granted to the plaintiffs, under which they are operating, convey the right to erect a structure such as the one concerning which this issue exists, subject only to reasonable police regulations intended to protect the safety and convenience of the public in the use of its streets, then it seems to me that the condition attacked is invalid, and the judgment of the court below upholding it should be reversed; for the city, by this condition, manifestly undertakes to reserve to itself a much greater power than that which it is privileged to exercise in its governmental capacity, as a creature of the State, in the matter of preserving public health, morals, safetjq convenience, etc., which are properly the subjects of police power. It is, of course, well settled that when a municipal corporation, by virtue of authority expressly or impliedly delegated to it, lawfully grants permission to a public-service corporation to lay its rails, pipes, wires, or other structures in a public highway, and does not expressly reserve any power of rescinding its grant, the permission so. granted is a property right protected by the constitution from arbitrary revocation, impair
“ On granting the privilege to use a street, the municipality ordinarily has the power, in its legislative discretion, to impose conditions.” 28 Cyc. 876, and cases cited. In addition to the citations given upon the same subject in the opinion of Judge Hodges, see 12 R. C. L. 179. The question, therefore, for determination here seems to be, whether the franchises granted by the city to the plaintiffs conveyed the right to erect these transformer vault structures in its streets. If they did, then removal after consideration could only be accomplished in the reasonable exercise óf the police power, and the city had no right to attempt to reserve a greater right, thereby impairing the contract rights of the plaintiffs, or attempting to do so; if they did not, then the plaintiffs could not force the granting of such a permit, which would be a matter of grace on the part of the city, which could attach such conditions as its governing body might think reasonable. In addition to the authorities cited by Judge Hodges, relative to the
The grant of the franchise by the municipality and its acceptance by the plaintiffs constituting a contract, it seems also very appropriate, if there be doubt as to its meaning, to take into consideration the circumstances and conditions under which the parties contracted, and to be aided in that way to arrive at their true intent. It is undisputed in the record that constructions of the character involved here are a matter of very recent development, having been used by the plaintiffs for not longer than three years; whereas the last franchise granted by the city was granted in 1912. It cannot be said, of course, that in contracting with reference to the maintenance of a public-service corporation such as the plaintiffs, the parties intended that it should be limited to the use of such construction and equipment as were in vogue at the time, This is a progressive age; and in agreeing that the power company might install in the streets of Atlanta “ all necessary tubes, conduits, . . manholes, and appliances and connections for the business and purpose of conveying, using, conducting, supplying, and distributing electricity,” etc., the city necessarily agreed to the use of such appliances and construction of the character stated as might at any time in the future be most reasonably suited to the conduct of the business of the plaintiffs.
That a room eleven feet four inches by sixteen feet four inches, eight feet deep, containing four transformers, cannot properly be denominated a " manhole ” is at least a contention amply sustained
Jones, Judge. On application by the power company the city first granted the permit, as requested. This resolution was vetoed by the mayor, and a new resolution was passed granting the permit with the condition or reservation attached, of which complaint is here made, to wit: “ The city reserves the right at any time, after six months notice to said applicant company, to rescind and repeal the grants herein made, and without liability to the city on account thereof; provided that the city agrees not to rescind or repeal permits except to accommodate public or municipal purposes, and not for the purpose of accommodating private individ
I am authorized to say that Mr. Justice Gilbert concurs in the views and the conclusion herein expressed.
Hammond, Judge. In opposition to the opinion written by Judge Hodges, in earnest support of the opinion written by Judge Jones, and in the light of all therein said, this word, touching only the high points in the case, is added. The judgment of the lower court should have been reversed on the main bill of exceptions, and affirmed on the cross-bill.
The court below seemed to treat casually, to minimize this anomalous resolution. Two of my associates here find it possible to explain away any legal wrong it does the companies. They discover in it explanatory clauses about “municipal and private purposes ” that render it toothless. Their reasoning is that it amounts only to a declaration of the city’s right to exercise police regulation over the companies. If it is only that, it is an idle declaration. We all bow to police regulation. What a striking example of its exercise we find in this very record: Several years ago the city said to these companies, in effect, “ Get off the earth.” They got off. Thej’' got under the earth. It cost them one and a half million dollars to dig in, but they dug in. Where is the question of police power pertinent in this discussion ? This regulation is nothing more than what in properly administered law should be' a vain attempt to superimpose upon these long-standing grants brand-new conditions. One of the contrary opinions goes the full length in declaring that the city, upon the acquiesence in the resolution by the companies, would have the right for any reason to exact the removal of these costly appliances. Certainly it is fraught with mischief for the companies, and they do well to beware. Under guise of a permit to do a simple street job, the city, in this resolution, is sapping the life-blood of the companies and tearing to shreds its own grant. Was there anything in the situation presented that suggested police regulation? No. Did the city council make any such claim? No. Do the terms of the resolution imply it? No. Note the word “grant” in the resolu