Electric Imp. Co. v. City and County of San Francisco. "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 of dense population, on the general and rational principle that every person ought to use his property so as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community." In 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 the exercise 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 bring 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 gun powder, or dymanite, in, under, upon, or about our houses. Even if these wires can be so put up and insulated as to be safe, in the mode suggested by one of the complainant's witnesses, Prof. Kieth, it has not been done. The professor himself does not claim that they 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 such dangerous Electric Imp. Co. v. City and County of San Francisco. 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? We 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 large quantity of gunpowder or dynamite among the buildings in the midst of the city, would a like remedy be deemed unreasonable or inadmissible, or void, as not being due process of law? The fact is, the 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 be 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 can not 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 of 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 provisions of the national Constitution. I regret to be obliged, by this decision, to affect, so seriously, the interests of the enter Electric Imp. Co. v. City and County of San Francisco. prising parties who are endeavoring to supply our citizens with electricity for the various purposes to which it is now applied. But I can not decline to administer the law as I find it, for the safety and security of the lives and prop. erty 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. NOTE. Upon the power of municipal corporations to authorize and regulate the use of their streets for the purpose of maintaining electrical appliances, which is the principal subject of the decisions in the last six cases and the next following, see note at vol. 2, p. 175; also INDEX to this volume, title " Poles and Wires in Streets: Municipal Control." In Jersey City & Bergen R. R. Co. v. Mayor and Aldermen of Jersey City, 15 N. J. L. J, 109, Nov., 1891, it appeared that a statute authorized the operation of street railroads by electricity, upon obtaining the consent of the municipal authorities; that after obtaining such consent, the complainant erected in certain streets the apparatus necessary to operate the trolley system; that afterwards, at the urgent request of the board of aldermen, who then had charge of the streets, the company commenced to extend the electrical system into other streets; that while this work was in progress, and after the company had expended considerable money upon it, the management of the streets was transferred to a "board of street and water commissioners," who prevented the completion of the work, and passed an ordinance prohibiting such extension of the trolley system, except with its permission. The Chancellor, being of opinion that the street railway company, complainant, "by reason of the ordinance and resolution of the board of aldermen aforesaid, and its action upon the faith thereof, in preparing apparatus and expending money, secured the legal right to introduce said system of locomotion in Montgomery street, which could not be taken away, and was not taken away by the action of the board of street and water commissioners, and further, that the complainant is entitled to the assistance of this court in the exercise of its aforesaid right, provided that such exercise may be had with due regard to the public rights and convenience, and that this court should protect it in the enjoyment of its rights upon its undertaking to exercise the same in manner indicated," granted an order for the municipal authorities to show cause why the company should not be allowed to exercise its right to erect and maintain the trolley system. Illuminating Companies v. Grant. UNITED STATES ILLUMINATING COMPANY, Respondent, v. HUGH J. GRANT, as Mayor of the City of New York, and others, Appellants. THE BRUSH ELECTRIC ILLUMINATING COMPANY, Respondent, V. THE SAME. THE MOUNT MORRIS ELECTRIC LIGHT COMPANY, Respondent, v. THE SAME. N. Y. Supreme Court, General Term, First Department, Dec., 1889. (55 Hun, 222.) DANGEROUS ELECTRIC LIGHT WIRES. NUISANCE.-POWER OF REMOVAL. NEW YORK SUBWAYS ACTS. Even if the board of electrical control of the city of New York had refused permission to certain electric light companies for whose use subways had not yet been provided (as specified in the statute creating the board), to make such repairs as were necessary to keep their plant in a perfect and safe condition, without which permission said companies were by statute prohibited from making such repairs, such refusal would not excuse the company for their failure to make such repairs, until they had exhausted their legal remedy against the board to compel them to give the requisite permission. The commissioner of public works of said city, either by virtue of his office, or as a private citizen, has a right summarily to remove a public nuisance existing in the street, dangerous to the lives of citizens, e. g., uninsulated electric light wires, without first going to the creator of the nuisance and informing him of the discovery of its existence and requesting him to abate the same, and thereafter waiting, before proceeding to protect the lives of the citizens, for some indefinite length of time, called a reasonable time, in order to see whether the creator of the nuisance will not abate it. Although another department or agency of the city government, e. g., the board of health, had a concurrent right and duty to remove wires dangerous to the public safety, such right was not exclusive. Chiefly for the reasons above given, though incidentally the statutes known as the New York subways acts were considered somewhat at length, orders continuing temporary injunctions restraining the board of electrical control and the commissioner of public works of New York city Illuminating Companies v. Grant. from interfering with the plaintiffs' overhead wires during the penden of an action for permanent injunction, were reversed. Cases of this series cited in opinion: People v. Squire, vol. 2, p. 176; U. Illum. Co. v. Hess, vol. 2, p. 187; W. U. Tel. Co. v. Mayor of New Yor vol. 2, p. 195; East River Elec. Light Co. v. Grant, post. APPEAL by defendants, the mayor, the commissioner public works and the board of electrical control of the ci of New York, from orders granted at Special Ter decreeing the continuance, during the pendency of t action, which was for a permanent injunction, of an ord enjoining the defendants from removing or preventi repairs to or the replacing of plaintiffs' poles or wir except where suitable subways should have been provid and notice thereof given as prescribed by statute, witho first notifying the plaintiffs of particular defects in poles wires. Facts stated in opinion. John M. Bowers and Divid J. Dean, for the appellan James C. Carter, Joseph H. Choate and Charles Hughes, for the respondents. VAN BRUNT, P. J.: The circumstances relating to organization of the United States Illuminating Compa and the Brush Electric Illuminating Company are similar that it is not necessary, in the statement of fa to refer distinctly to those two plaintiffs. The Mo Morris Electric Light Company stands in a different p tion in some respects, which will be hereafter notic The two plaintiffs first above mentioned seem to have b organized, pursuant to the laws of this State, for the 1 pose of generating and distributing through New York electric currents for light and power. They were aut ized to erect and maintain wires, poles and other fixt incidental to their business, over and upon the streets the city, upon obtaining the consent of the munic authorities. This consent was given by resolution of common council; and pursuant to this authority a la |