Opinion
12-09-1898
SUBURBAN ELECTRIC LIGHT & POWER CO. v. INHABITANTS OF EAST ORANGE TP.
C. W. Riker, for complainant. P. Woodruff, for defendant.
Bill by the Suburban Electric Light & Power Company against the inhabitants of East Orange township in the county of Essex. Heard on bill and affidavits and answer and affidavits on an order to show cause why an injunction should not issue. Injunction issued.
C. W. Riker, for complainant.
P. Woodruff, for defendant.
PITNEY, V. C. The complainant is a corporation organized under the general corporation act for the purpose of supplying electriclight and power, and in the exercise of its corporate rights has strung certain electric wires along a street known as Central avenue, within the territorial limits of the defendant, the township of East Orange. The municipal authorities of that town threaten to remove said wires by force, and the object of the bill is to restrain such threatened action. The wires in question are strung upon poles belonging to, and by the permission of, a telephone company, which poles were erected and are maintained lawfully, and the right of the company so erecting them to maintain the same, so far as the municipality is concerned, is not challenged. It was admitted that the wires are maintained at such a height as not in any wise to interfere with the use of the streets. The right of the complainant to so maintain the wires is based upon the act of May 10, 1884 (P. L. p. 331), which was in substance re-enacted by the act of April 21, 1896 (P. L. p. 322). That act provides that a company like the complainant "shall have full power to use the public roads or highways, streets, avenues and alleys in this state for the purpose of erecting posts or poles on the same to sustain the necessary wires and fixtures, upon first obtaining the consent in writing of the owners of the soil," with a provision that "no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the street in which the same shall be placed, and the manner of placing the same, and that the same shall be so located as in no way to interfere with the safety or convenience of persons traveling on or over the said roads and highways, and that the public streets in any of the incorporated cities and towns of this state shall be subject to such regulations as may be first imposed by the corporate authorities of such cities and towns." The township committee of East Orange, by a special charter, are authorized by subdivision 9 of section 6 of the supplement to the act organizing the township, which supplement was passed March 10, 1873, "to prevent or regulate the erection or maintenance of any awning, stoop, steps, platform, bay window, swinging gate, cellar door, area, descent into a cellar or basement, sign, banner, post or erection or projection of any kind in, over or upon any street or highway or public place, and to remove the same when already erected, at the expense of the owner or occupant of the premises in front of which the same may be." P. L p. 324. By authority of that section alone, on the 11th of October, 1886, the township committee passed an ordinance regulating the mode in which telegraph, telephone, or electric light poles should be erected in the city; and the fourth section of that ordinance provides that "all telegraph, telephone or electric light wires shall be placed so as to hang not less than twenty feet above the street crossing over which they are drawn." That is the only provision in that ordinance as to the stringing of wires. On the 19th of February, 1889, the township committee passed an ordinance which provides "that no person or persons shall run or suspend across or through any public street in this township any electric wire, except at railroad crossings, without first obtaining the permission of the township committee." Subsequently, on the 14th of October, 1895, the township committee adopted the following resolution: "Resolved, that consent be, and the same is hereby, given to the Suburban Electric Light and Power Company [the complainant] to erect poles and string wires within this township for electric lighting purposes, subject to all the provisions and restrictions contained in the ordinance of the township, and especially of a certain ordinance entitled 'An ordinance regulating the erection of telegraph, telephone and electric light poles in the township of East Orange,' adopted October 11, 1886: provided, however, that no poles shall be erected within the lines of any accepted street within the township without the further consent of the township committee." It is alleged by complainant, and admitted by the defendant, that Central avenue, along which the wires in question are suspended, is not an accepted street, but is a street within the control and jurisdiction of the Essex county park commission, subject to certain reserved rights in the defendant. Under this resolution the wires in question were strung upon the poles of the telephone company, as we have seen, by its consent it was held by Vice Chancellor Emery in Inhabitants of Summit Tp. v. New York & N. J. Telephone Co., 41 Atl. 146, that the language of the telephone act which is substantially the same as that of the electric light act above cited, gave the telephone corporation the right to string wires over the streets without the consent of, and subject only to proper regulation by, the municipal authorities. The regulation contained in the ordinance of the defendant herein of October 11, 1886, provides only that the wires shall be strung a certain number of feet above the street. No other regulation has ever been ordained. The later ordinance of February 19, 1889, provides that wires shall not be suspended across any street without first obtaining permission of the township committee. That permission was given by the resolution of October 14, 1895. And I am of the opinion declared by Justice Reed in Hudson Telephone Co. v. Jersey City, 49 N. J. Law, 303, 8 Atl. 123, at page 307, 49 N. J. Law, and page 125, 8 Atl., that a resolution was quite sufficient to give such a permission, and that an ordinance was not necessary for that purpose.
This conclusion renders it unnecessary to consider the debatable questions: (1) Whether or not the authority given by the above-recited ninth subdivision of section 6 of the defendant's supplement of March 10, 1873 (P. L. p. 324), authorizing it to prevent certain erections, by its true construction included the right to prevent the stringing of wires chargedwith electricity; or (2) whether, if such authority was given, it was not, in effect repealed by the act authorizing electric light companies to string their wires, subject to proper regulations by the municipal authorities. Vice Chancellor Emery in the Summit Tp. Case, above cited, held that a right to regulate did not include a right to absolutely prevent the stringing of such wires. It is urged against the value of the permissive resolution of October 14, 1805, that it is entirely general in its character, and inefficient, because it does not designate any street in which the wires shall be strung. The answer to this is that the provision of the act requiring such designation applies only to the erection of poles, and not to the stringing of wires. This is the necessary result of the decision of Vice Chancellor Emery, above referred to. In support of this position, however, the defendant cites the case of Meyers v. Electric Co., 60 N. J. Law, 350, 37 Atl. 618. But that case relates entirely to the erection of poles, and varies from this in that it was a suit by the state, on the relation of property owners, to set aside an ordinance of the city which had authorized an electric company to set poles generally in any and all of the streets without designating any particular streets, and under that authority the electric company proposed to set poles along the lands of the prosecutors. The ordinance was set aside as against the prosecutors.
It is also urged that the resolution adds nothing to the force of the provisions of the act of the legislature giving general authority to the complainant corporation to string wires over streets. This is true, and it is only necessary to add that the permission given by the act, as we have seen, is quite sufficient of itself to authorize the mere act of suspending wires across the street. No action on the part of the municipal authorities was necessary to authorize it The true, proper, and only office of the permissive resolution in question was to counteract and suspend, in favor of the complainant the restrictive effect, whatever that may have been, of the ordinance of February 10, 1889. No right was reserved to the township authorities in the resolution of October 14, 1895, to revoke the same, nor was any limitation fixed upon the time during which the wires strung under it should remain. A resolution rescinding that resolution was, after the stringing of the wires, passed by the municipal authorities, and it is claimed by the defendant that it was authorized to make such rescission, and that, when rescinded, the authority of the complainant to maintain its wires was destroyed. This argument is based upon the ground that the permission was a mere license, revocable at the pleasure of the licensor. I am unable to adopt that view. Considering it as a mere license, it is still a license which has been acted upon, and may not be revoked at the pleasure of the licensor. In support of this proposition I refer, without citing at length, to the clear and forcible language and reasoning of Justice Reed in the case of Hudson Telephone Co. v. Jersey City, 49 N. J. Law, 303, 8 Atl. 123, at pages 305, 306, 49 N. J. Law, and pages 124, 125, 8 Atl. Moreover, the complainant's right to string the wires does not depend alone, if at all, upon the consent of the municipal authorities; it relates back to the legislative authority to string and maintain the wires upon certain conditions. No time is fixed by the legislative authority for the continuance of the exercise of the franchise, and the grant must be presumed to be perpetual, subject. it may be, as it probably is, to the right of the legislature to exercise upon it its police powers from time to time, as it in its wisdom may see fit.
It is further urged by the defendant that the original grant to the telephone company of the right to erect poles was, by implication, restricted to the right to use them for the purpose of sustaining telephone wires which are of a more harmless character than electric light wires. It is urged that the latter are dangerous in their nature, and that the grant to erect the poles should be construed as restrictive hi that respect. I am unable to adopt that view. The dangerous character of the wires must be presumed to have been in the mind of the legislature when it gave the general power above referred to. The poles are the private property of the telephone company, and they have a right to use them as they choose, so long as they do not maintain a public nuisance. If they are too small to bear the weight that is put upon them, or have become weak from age, it is probably within the power of the municipality to order them to be replaced, and made safe. And the case, in my judgment, must be viewed precisely as if those poles stood upon private ground, as was the fact in the Summit Tp. Case, above cited. The rights of the owners of the soil which supports the poles upon which the wires in question are strung are not here brought in question. They are quite distinct from the rights of the public in the street, and cannot, in my judgment, be invoked by the defendant in support of its proposed action, for the simple and all-sufficient reason that it is not within the scope of the power of the defendant to enforce those rights. The proposed action of the common council is probably excited by a desire to compel the electric light company to place its wires under ground. It is not intended by this decision to intimate any opinion as to the power of municipal authorities, under the present state of the law, to bring about that result by proper municipal action. I will advise an order that an injunction do issue pending the suit.