Wheat v. City Council of Alexandria

Lewis, P., delivered the opinion of the court. The plaintiff in error is the president of the Alexandria Water Company, which was chartered by the'legislature in 1850. The seventh section of the act of incorporation reads as follows: [743] ■ “ That the said company shall he authorized to open the streets, lanes, alleys, and public squares in said town for the purpose of laying pipes for distributing water; provided, that when the same shall be opened for that purpose they shall, as soon as practicable, be repaired by the said company at their own cost and expense, subject to the approval of the superintendent of police of said town, or the common council thereof.” Acts 1849-’50, p. 146. On the 16th of October, 1889, the city council passed the following ordinance; “ Be it ordained by the city council of Alexandria, That no person or persons shall break or dig up any portion of a street or alley without first having obtained the written permission of the mayor, and depositing with the city treasurer such sum of money as the committee on streets may deem sufficient to secure the repair of the street or alley. Any person violating this ordinance shall pay a fine of twenty dollars.” On the 5th of December, 1889, the plaintiff in error was fined twenty dollars by the mayor of the yity for an alleged violation of this ordinance; that is to say, for digging up, as the agent of the water company, one of the streets of the city for the purpose of laying water-pipes therein, without the written permission of the mayor, and without having given the security for the repair 'of the street required by the ordinance. This judgment was, on appeal, affirmed by the circuit court, and is now before this court for review, the ■ single question being whether or not the ordinance is valid. The principles underlying the case are few and simple. It is familiar law that full and paramount authority over highways, including streets, belongs to the legislature, unless restrained by the constitution. The right, therefore, to dig up the streets of a city for the purpose of laying water or gas-pipes therein, is a franchise which can he granted only by the legislature, or by the city under legislative authority. 2 Dill. Munc. Corp. (4th ed.), sec. 656 (518); N. O. Water-works v. Riv [744] ers, 115 U. S. 674; N. O. Gas Co. v. La. Light Co., Ibid, 650; State v. Cin. Gas Co., 18 Ohio St. 262; Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242. This right, in the present case, has been granted to the water company, and in very comprehensive terms. The seventh section of the charter grants it unconditionally — the only express limitation annexed to the right beiug that the streets, after being opened, shall be repaired by the company at its own expense, as soon as practicable, and subject to the approval of the city authorities. The ordinance; however, not only assumes to regulate the repair of the streets, after the -pipes have been laid, but it goes further, and, in effect, makes the statutory right to open the streets dependent upon the will of the mayor and street committee. This is ultra vires. It conflicts with the seventh section of the company’s chai-ter, and is, therefore, not a valid exercise of the general power conferred by the charter of the city to keep its streets in order; for there is no conflict between the two charters. The provisions of both can easily stand together. It is not doubted, that the- city council may prescribe regulations, touching as well the opening as the repair of the streets by the water company, which are not inconsistent with the essential rights granted by the company’s charter. Commissioners v. Gas Co., 12 Pa. St. 318; N. O. Gas Co. v. La. Light Co., 115 U. S. 650, 671. Thus it may require the company, in opening streets, to take due precafitions against accidents to persons and property, as by providing suitable safeguards for that purpose, including lights, when necessary, at night; that it give reasonable notice to the proper city authorities before digging up the streets, etc. But the ordinance complained of goes beyond this. It is not a reasonable regulation, but is rather an illegal restraint, and therefore void. Indeed, if sustained, it'might amount to an absolute prohibition; for should the mayor in any case arbitrarily [745] refuse permission to tlie company to prosecute its work in the streets, such refusal Avould not only impair the unconditional right conferred by the legislature, but would virtually destroy it. We cannot think that an ordinance which is capable of leading to such results can be sustained consistently with any fair construction of the company’s charter. Tf rights and privileges have been conferred upon the water company which are, or may become, injurious to the public health or the public safety, it is competent for the legislature to alter the charter. We can only construe it as it is.