damage now being done to respondent's uary, 1896, and a hearing had thereon real estate. on the 14th of February; the defendant in the meantime having filed his answer to the bill. The York

(12,) I deny that the erection and maintenance of said pole at the point York Telephone Company is named in plaintiff's bill, at the southwest a corporation duly incorporated under corner of West Market and Beaver streets, the Act approved the 29th day of is essential and necessary to the conduct April, 1874, entitled an act to provide for of the plaintiff's business, and to the con- the incorporation and regulation of certinuity of its line; and I deny that to re- tain corporations, and under the supplemove said pole would be in violation of ment thereto approved the 1st day of the vested rights of said Company plain- May, 1876. It has secured from the mutiff, or that it would inflict upon it irre- nicipal authorities of the City of York parable injury, for which it has no ade permission to erect poles and run wires quate remedy at law. On the contrary, thereon in the streets, lanes and alleys of I aver that the said real estate of your re- the City of York, by an ordinance of the spondent, at the southwest corner of said city approved the 15th day of OctoMarket and Beaver streets, is unencum- ber, 1895, which ordinance is set out in bered, and is of greater value than the the plaintiff's bill. This was a special entire capital stock of the plaintiff Comp- ordinance and required the Company to any, so that plaintiff could recover in an comply with the provisions and regulaaction of trespass against the plaintiff, any tions of all ordinances then in force or damages to which it might be legally en- which might thereafter be enacted by the titled for any illegal and wrongful re- city. moval of said pole by the defendant; which would be a sufficient and adequate legal remedy for any loss plaintiff might sustain under the circumstances.

(13.) The Act of Assembly of May 1st, 1876, P. L. 90, under which the plaintiff claims to have been incorporated, is unconstitutional, in so far at least, as section one thereof extends the scope of the act to subjects not clearly expressed in the title of the bill.

The only ordinance in existence at the passage of this special ordinance applicable to a telephone company is a general ordinance of November 17th, 1893, which provides that "it shall be the duty of such corporation, firm or individual, before any poles are erected or wires or cables stretched to submit to the Mayor of sa'd city a written application specifying the number and size of poles to be erected and designating the places where the same are intended to be insreted, and if no objections be made thereto, it shall be the duty of said Mayor to issue a license to the applicant for the erection of said poles at the designated places of insertion. In case of objections being made to the whole or any part of such application it shall be the duty of said Mayor to February 24th, 1896. STEWART, J.- hear the same, and to grant the license This is a bill in equity, filed by the York either in accordance with the application, Telephone Company v. Horace Keesey, or with such conditions and modifications Esq., praying for a preliminary injunc- to serve the purpose of this ordinance as tion, special until the hearing and perpe- the case may require."

I therefore ask that said injunction be dissolved at the cost of the plaintiff.

N. M. Wanner for motion.

Latimer, Chapin & Schmidt, contra.

tual thereafter enjoining and restraining "No poles shall be newly erected unhim and his agents and employees from less the license of said Mayor shall have interfering with either the erection or been previously obtained therefor, as promaintenance by the complainant of a tele- vided in this section, and for every license phone pole located at the southwest corner so granted there shall be paid to the City of West Market and Beaver streets in the Treasurer for the use of the City, the sum City of York, in front of his property. A of 50 cents for each and every pole prospecial preliminary injunction was granted posed to be erected." This ordinance in

the presentation of the bill support- section 5 provides as follows: "Any cored by affidavits, on the 24th day of Jan-poration, firm or individual which is now

enjoying or may enjoy hereafter the privilege of erecting poles within the limits of this city, for the purpose provided in the ordinance, shall be liable for all damages caused to public or private property by reason of said privilege."

paragraph of his answer, but admits that before the plaintiff company paid the license fee he did say substantially that if the plaintiff would erect a pole at the southwest corner of Market and Beaver streets in said city, he would have it cut down, which is virtually an admission of the complainant's allegation.

The complainant, without having sub mitted the application required by the first section of this ordinance to the Mayor, The complainant alleges and the despecifying the number and size of poles fendant denies that it is esential and necintended to be erected, and designating essary to the conduct of its business and the places where the same were intended to the continuity of its line to plant a to be inserted, and without paying the pole at the point in dispute, the defendant license fee required by the ordinance, pro- claiming that it could locate its line in ceeded to plant and erect their poles along the alley back or south of Market street. the streets of the city, one of which was The evidence shows that there is already erected at the curb on the corner of West two electric lines in this alley which is Market and South Beaver streets, in front confirmed by the court's actual knowof defendant's property. This pole the ledge. Under the evidence the southwest defendant cut down. The complainant corner of Beaver street is a necessary lothen prepared a written application in- cation for a pole in order to carry out the tended to comply with the ordinance. de scheme or plan for the erection and consignating the number and size of the poles struction of the complainant's system of which they proposed to erect, but without lines, not absolutely necessary, but conspecifying the places where the same veniently so, and only so because the were intended to be inserted excepting in company has already located one on its a few instances, one of which is that of principal lines on Market street, the the pole erected in front of the defendant's principal street of the city, which as we property, which is specified as follows: understand from the evidence, is to be "One 35 foot pole at southwest corner of crossed by another line at right angles on West Market and Beaver streets." This the west side of Beaver street. application was presented to the Mayor on the evening of the 23rd of January, 1896, and the vidence taken at the hearing discloses the fact that the defendant and his counsel were present when the application was presented to the Mayor. There is no evidence that any notice was given to the defendant to be there at that time, but there was some evidence that the City Solicitor, as a matter of courtesy had notified N. M. Wanner, Esq., the defendant's counsel, that the application would be presented to the Mayor.

There are substantially no other facts in controversy in this proceeding, the questions raised being principally questions of law. The principal questions involved in this issue are:

First-The validity of the general ordi

Dance.

Second-The sufficiency of the application for the license and the granting of the same without notice.

Third-Constitutionality of the Act of May 1st, 1876, under which the complainant's charter is granted.

Fourth-The right of the complainant to erect its poles without first having paid or secured the damages occasioned by the erection and construction of its line.

The application was presented to the Mayor in the presence of the defendant and his counsel, who made no formal objection to the issuing of the license other than to say that he objected. The com- As to the first and second objection: plainant alleges that the defendant de- That the complainant had no right to go clared his determination and intention to and plant and erect its poles without havresist the erection of any pole in front of ing first filed the application required by his premises, and threatened to cut down the general ordinance, and designating and overthrow any pole which the com- the number, size and position of the poles, plainant might erect at that point. The and without having paid the license fee, complainant alleges that he did this both cannot be denied, and the city or any before and after the issuing of the license. property owner affected by such erection The defendant denies this in the ninth could raise the question; when therefor

The constitutionality of the act is attacked upon two grounds:

First That the subject of the act is not clearly expressed in its title, and second, that it authorizes the construction, maintenance and leasing of telegraph lines for the private use of individuals, firms and corporations.

the defendant cut down the first pole April 29th, one thousand and eight hunderected in front of his premises he was red and seventy-four, relative to the inguilty of no improper conduct, and could corporation and powers of telegraph comnot be held responsible for so doing. panies for the use of individuals, firms and However, he now stands upon a different corporations and for fire alarm, police and footing. The complainant did make ap- messenger business " plication to the Mayor, and it did specify the location of the pole which was to affect him with sufficient certainty, and although he had no formal notice of the application to be made to the Mayor, he did have knowledge of the fact of the making of the application, and was present and had an opportunity to object. The general ordinance is defective inas- The first objection is based upon the much as it does not require the specifica- words contained in the first section as tion of the location of the poles to state follows: "Or for the transaction of any definitely and precisely where, and upon business in which electricity over or whose property they are to be located, through wires may be applied to any usenor does it provide for any notice to be ful purpose. This is not expressed in given to the parties affected, so that they the title, and a reading of the title might may appear and object. Nevertheless, give no notice of it." the defendant having been present at the granting of the license, cannot raise this question.

The object of notice is knowledge, and he had this.

Nor do I think that the payment of damages by the company to a property holder under the 5th section of the ordinance is a condition precedent to its right to plant its poles. It seems to me that this covers only such damages as may actually be occasioned by the erection and maintenance of the poles, and not such as are of a consequential nature, nor such as the defendant would be entitled to demand payment of or security for prior to the erection or construction of the line.

There is no allegation that the pole was to be planted in front of any window or door, as there was in the case of Russ v. The Central Pennsylvania Telephone Co., 15 County C. Rep. 226, which would make the location improper. The pole is located on the angle of the curb, and is perhaps as much out of the way of the public and the people using the defendant's property, as it could be placed and still be within the range of the two streets, and so as not to oblige the complainant to cross private property in the construction of its line.

As to the third question:

The Act of May 1st, 1876, P. L. 90, is entitled "An act supplementary to an act to provide for the incorporation and regu lation of certain corporations," approved

Telegraphy is the transaction of business over or through wires, and is a useful purpose; so is telephonic communication, but it is not necessary to resort to this clause of the title of the act to sustain the incorporation of a telephone company, because a telephone company is a telegraph company, and both complainant and defendant contend that this is soand this contention is sustained by the authorities; Central Telephone Co. v. Wilkesbarre R. R. Co., 1 Dis. Rep. 628; Com. v. Penn'a Telephone Co., 18 Phila. 88; 25 Am. and English Enc. 746-747.

It is not necessary that the title of the act should be an index of its contents; Com. v. Green, 58 Pa. 226.

It is sufficient if it fairly give notice. of the subject of that act; Allegheny County v. Holmes' Appeal, 77 Pa. 77; Nauh Chunk v. McGee, 81 Pa. 433.

The act is supplementary to the general incorporation act, and is germane to the subject of the original act. This, it seems, is sufficient; Craig v. Presbyterian Church, 88 Pa. 42; Com. v. Sharon Coal Co., 164 Pa. 305.

As to the other question. Of course a Company could not be incorporated with the right to take property either public or private, for private business, and if this be the intent of the act it would be unconstitutional.

But a telephone company is not so incorporated. It is a telegraph company equipped with the right of eminent do

lations as the municipal authorities may deem necessary, etc.'

main, and like a telegraph company is a quasi public corporation and must serve every one who applies for its service. on equal terms. It is not therefore a corporation for private business, and this municipal consent contained in the ordiobjection fails.

Now as to the fourth question. The complainant did not agree with the defendant as to the question of damage, nor offer any security therefor. It contends that he sustains none. It takes none of his property, and if it injures any it is damnum absque injuria.

This is a sufficient legislative authorization to the company, coupled with the

nances, to enable it to erect its poles and wires. It is therefore not a public nui

sance.

Dillon on Muncipal Corp. Vol. 2, Sec. 698.

Tiedeman on Municipal Corp. Sec.

297.

Does the erection of poles and the The defendant contends, and this is the stringing of wires in front of the defenreal contention in the case, that the erec- dant's property impose an additional tion of the plaintiff's poles, wires and fix- servitude upon it? Is it such a burden tures interrupts the light and air, and in- as was contemplated when the street was terferes with his and his tenants' enjoy- either condemned or dedicated? Maniment of them, and increases the risk of festly not, since the street was either his property to fire and injury, and im- dedicated or condemned more than a poses a new burden and servitude on his hundred years ago, long before the wildproperty not contemplated by the use of est dreamer imagined such a thing as the the city streets.

The company must of course show its authority for what it proposes to do, otherwise it is a trespasser and a nuisance. Has it done so?

A telephone company finds its authority to use the streets in the language of the act of the 29th of April, 1874, P. L. 73, Sec. 33, which provides: "Such corporation (a telegraph company) shall be authorized when incorporated as herein before, to construct lines of telegraph along and upon any of the public roads, streets, lands, (lanes?) or highways or across any of the waters within the limits of this State by the erection of the necessary fixtures, including posts, poles or abutments for sustaining the cords or wires of such lines, but the same shall not be so constructed as to inconvenience the public use of the said roads, streets or highways, etc."

The act of May 1st, 1876, P. L. 90, regulates the exercise of this power by section 4th, as follows:

transmission of articulate speech over an electrified wire and before Franklin first drew the electrical spark from the cloud. But the same might be said of lamp posts, gas and water pipes, street railways, both horse and electric. and it has been ruled as to all of these that they do not impose an additional servitude.

McDevitt v. Gas Co., 160 Pa. 367. The exact question has never been decided in this State. The text writers agree that it does.

Tiedeman on Municipal Corp. Sec. 297.

Dillon on Municipal Corp. Sec. 698. The decided cases in other States are both ways, and in conflict-the court of last resort in Massachusetts holding that the erection of a telegraph line in a city did not impose an additional servitude, and the Court of Appeals of Virginia holding the contrary, and in both cases by a divided court.

Pierce v. Drew, 136 Mass. 75.
Western Union Tel. Co. v. Williams,

"That before the exercise of any of 3 Am. & Eng. Corp. Cases 564. the powers given under this act, application shall be first made to the municipal authorities of the city, town or borough, in which it is proposed to exercise said. powers for permission to erect poles or run wires on the same, or over or under any of the streets, lanes or alleys of said city, town or borough, which permission shall be given by ordinance only, and may interpose such conditions and regu

To the same effect as the decision in

Virginia is the decided doctrine in Illinois.

Board of Trade Tel. Co. v. Barrett, 107 Ill. 508.

After much consideration I have come to the conclusion that the question is ruled by the opinion of Judge Stowe, adopted by our own Supreme Court in Lockhart v. Railway Co., 139 Pa. 419.

I can find no distinction between telephone poles and wires and those of the trolley line of a street railway, that is not in favor of the former. They are planted no nearer the houses; they are higher and carry the cross arms up generally out of the range of the windows; they are charged with but a light current of electricity; they are subjected to no great strain, and are not likely to fall, and if they do they are harmless unless in fallin gthey come in contact with the trolly lines, now usually their neighbors, carrying torrents of death and destruction in their heavy voltages, but which the Supreme Court has held impose no additional servitude.

uses, such as the public may from time to time require."

Lockhart v. Railway Co., 139 Pa. 419. In this case, which was a motion for an injunction, Judge Stowe said: "The case presented by the plaintiff is not so clear from doubt that a chancellor should grant an injunction summarily stopping a great public improvement (the construction of a street railway) before final hearing, more particularly if the position taken by the plaintiff is correct and defendants have no legal right to take possession of the streets as they are about to do. A common law action will compel them to pay all damages arising to the plaintiffs, and thereafter equity would probably afford a complete remedy by which the wrong done them could be fully corrected."

That the trolley lines are a part of a system of travel or transportation does not seem to me to change the principle. What was said as to the complainants They are not an essential part. Horse there, may with equal propriety be said power and steam power still exist, capa- as to the defendant here on his motion to ble of moving all cars, so that the trolley is not an essential, but only more convenient and certainly a much speedier and better method of locomotion.

dissolve. If the complainants are wrong, to which I do not now agree, they will be responsible to him for all damages, and unless they assert their right of eminent domain, he can compel them to remove the pole, and if they do, he can compel them to pay or secure his damages, while if I remove this injunction, this authorized public improvement would be interRafferty v. Central Traction Co., 147 terrupted and might suffer irreparable inPa. 597.

Though new and not essential, they are said not to impose an additional burden, but are held to be a beneficial and legitimate public street use.

It is such a use as was in general contemplation when it was said by the Supreme Court almost sixty years ago that the streets are subject to the paramount authority of the legislature in the regulation of their use by carriages, rail-cars or means of locomotion yet to be invenied. Philada. & Trenton R. R. Co., 6 Wh.

25-44.

jury.

I will therefore continue the injunction in force until the final hearing, directing the complainant, however, to file a new bond in the sum of $2,000, in lieu of the bond filed.

It appeared at the hearing that in pursuance of some contemplated amicable arrangement, the complainant had erected a 45 foot instead of a 35 foot pole at the locus in quo, which is a technical violation of the complainant's license, to which In this case it is further said, "In the defendant objects; I will therefore Pennsylvania a street is the property of dissolve the injunction unless it is shown. the people, not of a particular district but by affidavit that the pole erected has been of the whole state, who constituting as reduced to the proper height within they do the legitimate sovereign may twenty-four hours. dispose of it by their representatives and at their pleasure.

"It may now be taken as settled that the owner's rights as to abutting property are subject to the paramont right of the public and the rights of the public are not limited to a mere right of way, but extend to all beneficial legimate street

C. P. of

Lancaster Co.

Com. ex rel. McVey v. Lefevre. Boroughs-Resignation of councilmenElection of successor.

The "rules of order" of a borough set forth that the presiding officer should call a special meeting of council "only on the request in writing of four of its members," the number of