American Rapid Telegraph Co. v. Hess

The chief object of this action is an injunction to restrain the mayor of the city of Hew York, the commissioner of the department of public works, and the members of the board of electrical control, their agents and servants, “ from cutting, pulling down, removing, or otherwise injuring any of the lines of. telegraph poles and wires ” owned by the plaintiff in the streets ■of that city.

The apprehension exists on the part of the officers of the plaintiff that the removal of its poles and electrical wires from the streets, so far as it has not been already done is designed to be made under the authority of the act of the legislature of'this state, known as chap. 716 of the Laws of 1887.

Subways have been constructed under this act and chap. 499, ■of the Laws of 1885, and chap. 503, of the Laws of 1886, for the reception of the wires of this and other companies in the streets of the city of Hew York. This has been done through the instrumentality of a subordinate company brought into existence for that object. And the plaintiff has been notified of that fact, and required to place its electric wires therein, but it has neglected ' to do so, and it is because of such neglect that the officials of the ■city have in part removed, and intend to remove, from the streets in which the subways have been constructed and prepared, the poles and wires of the plaintiff. And that removal they have been empowered to make by § 3 of the act of 1887, as they previously also had been by § 3 of chap.' 534, of the Laws of 1884.

But for the purpose of maintaining the action, the plaintiff has ■alleged its right to resist these acts, especially that of 1887, as in conflict with certain restraints created by the constitution of this state and by the constitution of the United States. It is not, however, any part of either of these acts to permit or promote the violation of any corporate contract existing in favor of the plaintiff, nor to deprive it of any of its property, or to subject it to any unlawful expense. The object, on the contrary, is to secure the removal of the poles and the wires suspended upon them from the streets in which the subways were to be and so far have been constructed, and to place the wires in the subways under ground. It is to clear the public streets of unsightly, obstructive and dangerous apparatus. And that is an appropriate subject for legislative interference. It is fully empowered by the broad grant of legislative power, delegated by the constitution of the state, and in no way abridged by anything contained in the constitution of the United States, to provide for the unobstructed safety of the public streets of the cities of the state, and no more than that has been attempted by this legislation. The plaintiff does not appear to have acquired any right to the use or occupancy of these streets for its poles or wires in the least conflicting with the ■exercise of this authority over them. And § 3 of the act of 1887 has provided and declared, in case the owners and operators of suspended wires in the streets shall not cause them to be removed from the streets mentioned in the notice served requiring their removal, “ that it shall he the duty of the commissioner of public works of said city to cause the same to be removed forthwith by

The plaintiff having failed to comply with the notice served by removing its poles and wires from the streets containing the subways, the commissioner of public works under the order of the mayor has in part caused that removal to be made and probably intends to make their removal complete as that may be lawfully done under the authority of the act of 1887. That act in its scope and effect is a police regulation as that has been declared by express language contained in it and as this power has been defined in other cases. Kidd v. Pearson, 128 U. S., 1 ; People ex rel. Electric Lines Co. v. Squire, 107 N. Y., 593 ; 12 N. Y. State Rep., 832; U. S. Illuminating Co. v. Hess, 19 id., 883.

It has been no part of the intention to deprive the plaintiff of its property in its poles and wires or to appropriate them to the use of either of the defendants. But the design has been to remove them as unlawful incumbrances, as they had in fact become under the law, from the streets. If the plaintiff desires to repossess itself of the removed poles and wires it is entitled to take other means for that object. An injunction is not the remedy which has been provided for that end. The judgment was fully authorized and it should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.