Farrell v. Railroad Co. The city of New Haven, also a defendant, demurred to the complaint because it is empowered by section 3595 of the statutes to permit all horse railroad companies, including the Winchester Avenue Railroad Company, to use electricity by means of overhead wires, etc. The case is reserved for the advice of this court. The case is argued on the briefs as though only a single question was presented by the court, namely, does the charter repeal section 3595 of the General Statutes so as to prevent its application to the Winchester Avenue Railroad Company? It does not seem to us that this is the whole question, or quite the proper one. The real question is not one of repeal, but what powers may the railroad company exercise under its charter? Not what may the mayor and council grant, but what may the railroad company take? The charter of the railroad company is the full measure of the powers which it possesses. It cannot lawfully exercise any others. In ordinary cases every corporation is just what the incorporating act has made it, and is capable of exerting its faculties only in the manner the act authorizes. That charter was granted subsequent to the enactment of the section in the General Statutes. It would have been competent to the Legislature to grant to that company the right to exercise other powers than such as by the quoted section could be granted by the mayor and common council of the city. It was equally within the power of the Legislature to forbid the company to use electricity in a way which, under other circumstances, might have been given by the mayor and council. Suppose the charter had contained express words of prohibition, as-"said company is forbidden to use electricity in any way that involves the use of overhead wires." It would be admitted that the mayor and council could not then confer upon the company the right to use electricity in that way. It cannot be claimed that the mayor and common council of a city could give to a corporation the right to exercise a power which the Legislature had expressly forbidden it to exercise. But the exception in the charter of the right to use Farrell v. Railroad Co. electricity in any way that involved the use of overhead wires makes the legal effect of the charter precisely the same that it would have been had such express words of prohibition been contained in it. In all statutes granting powers to a corporation or to an individual or to a body, things not enumerated in the grant, or excepted out of it, are held to be as distinctly negative as though there were express words of negation. Endlich on Interpretation of Statutes, section 354; Sutherland on Statutes, section 327; Sedgwick on Statutory Construction, 354. Thus in Durousseau v. The United States, 6 Cranch. 307, a statute of the United States had conferred appellate jurisdiction on the Supreme Court in certain enumerated cases, and it was held that that statute implied a negative on the exercise of appellate powers by the Supreme Court in all cases not comprehended within the enumeration. The national banking act empowers a national bank "to carry on the business of banking, by loaning money on personal security." It was held in Fowler v. Scully, 72 Penn. St. 456, that this act prohibited the loaning of money on the security of real estate, and that a mortgage given to a national bank as security for money so loaned was void. To the same effect are Page v. Allen, 58 Penn. St. 338; Fridley v. Bowen, 8 Ill. 151; Ex parte McCardle, 7 Wall. 506. "In so far as the rights granted to corporations are destructive of or encroach upon public or common rights, they are undoubtedly to be construed most strongly against those setting them up and in favor of the State or the public; they are not to be extended beyond the express words in which they are given or their clear import; and what is not given in unequivocal terms is to be deemed as expressly withheld." Endlich on Interpretation of Statutes, section 354. See also Sprague v. Birdsall, 2 Cowen, 420; Coolidge v. Williams, 4 Mass. 145; The People v. Broadway R. R. Co., 126 N. Y. 29; City of New Haven v. Whitney, 36 Conn. 373; City of Bridgeport v. Housatonic R. R. Co., 15 Conn. 501. Construing the charter of the Winchester Avenue Railroad Company by Electric Imp. Co. v. City and County of San Francisco. these rules, it is apparant that it has no capacity to take the right to use electricity in any way that involves the use of overhead wires for the mayor and common council of the city of New Haven; and that the injunction should be granted. In this opinion the other judges concurred. NOTE.- See note to next case. ELECTRIC IMP. Co. v. CITY AND COUNTY OF SAN Circuit Court, N. D. California, March 30, 1891. (45 Fed. R. 593.) MUNICIPAL CONTROL OF WIRES IN STREETS.- INJUNCTION. It is within the police power of a municipal corporation to prohibit by ordinance the suspension of electric wires over or upon the roofs of buildings, on pain of fine and imprisonment; and the municipal authorities will not be restrained by injunction from removing wires erected or maintained contrary to such ordinance. ON motion for injunction. An ordinance of the board of supervisors of San Fran cisco, January 25, 1890, was as follows: Order No. 2163. Prohibiting the suspension of electric wires over or upon the roofs of buildings, etc. The people of the city and county of San Francisco do ordain as follows: Section 1. It shall be unlawful for any person, company or corporation to run or suspend or stretch over or across or upon the top or roof, or any portion of the top or roof, of any building in the city and county of San Francisco, any wire used for the purpose of conducting electricity, or an electric current, or for any purpose whatsoever. Sec. 2. It shall be unlawful for any person, company or corporation to keep or maintain over or across or upon the top or roof, or any portion of the top or roof, of any building in the city and county of San Francisco, Electric Imp. Co. v. City and County of San Francisco. any wire used for the purpose of conducting electricity or an electric current, or for any purpose whatsoever, for more than ten days after such person, company or corporation shall have received notice in writing, signed by the chief engineer of the fire department of said city and county, to remove the same; and each and every day subsequent to the ten days after such prescribed notice shall have been given, and maintenance or keeping of any wires hereinabove prohibited shall constitute a new and separate violation of this ordinance. Sec. 3. It shall be unlawful for any person, company or corporation to attach to or suspend from or support upon any building in the city and county of San Francisco any wire used for the purpose of conducting electricity, unless the same be attached, suspended or supported for the purpose of supplying to the owner or the occupant of such building, or to the owner or occupant of some part thereof, electric light or electric power, or telephone or telegraph service. Sec. 4. It shall be unlawful for any person, company or corporation to run or suspend or stretch, or keep or maintain, upon any pole or other support erected in or upon the streets, or in or upon any street, in the city and county of San Francisco, any electric light wire, or any wire used to conduct electricity, or an electric current, for the purpose of producing elec tric light or motive power, unless such person, company or corporation shall have heretofore obtained, or shall hereafter obtain, permission of the board of supervisors of said city and county so to do. Sec. 5. The provisions of this ordinance shall not apply to any building occupied in his or its business, by any person, company or corporation engaged in selling or furnishing or supplying electric lights or electric power, or engaged in conducting or carrying on a telephone or telegraph business; nor shall they apply to any wire erected and used exclusively for fire alarm and city and county purposes. Sec. 6. Any person violating any provision of this ordinance shall be guilty of a misdemeanor, and shall be punished by a fine not exceeding five hundred dollars, or by imprisonment in the county jail not more than six months, or by both fine and imprisonment. Sec. 7. If any person, who has heretofore run or suspended or stretched, or who shall hereafter run or suspend or stretch, over or across or upon the top or roof, or any portion of the top or roof, of any building in the city and county of San Francisco, or shall hereafter keep or maintain any such wire over or across or upon the top or roof, or any portion of the top or roof, of any building in said city and county, shall fail to remove the same within ten days after the receipt of written notice to do so, signed by the chief engineer of the fire department of said city and county, then it shall be lawful for said chief engineer of the fire department, and he is hereby authorized and directed to cause such wire to be removed. In attempted enforcement of such ordinance, the city and county of San Francisco, through David Scannell, chief Electric Imp. Co. v. City and County of San Francisco. engineer of its fire department, notified the complainant to remove its wires suspended on numerous buildings in violation of the ordinance, under pain of prosecution. Whereupon complainant immediately sought the protection of the court against such interference with its business by bringing these suits, and it now asks for injunctions pending the hearing of the suits which it has instituted against said city and county, and against said David Scannell, the chief engineer of the fire department of said city and county, to restrain it and him from enforcing or proceeding under such ordinance. Haggin & Van Ness and George C. Gorham, Jr., for complainant. Langhorne & Miller and Estee, Wilson & McCutcheon, or respondent. Before SAWYER, Circuit Judge. 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 Bartmeyer 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 Butchers' Union, etc. Co. v. Crescent City, etc. Co., 111 U. S. 747 (4 Sup. Ct. Rep. 652), the court, quoting from Chancellor KENT, says: |