ERROR TO THE COURT OF COMMON PLEAS OF THE CITY AND COUNTY OF NEW YORK.
MR. JUSTICE LAMAR, after stating the case, delivered the opinion of the court.
In the New York courts it was contended by the relator (1) that the aforesaid acts of the legislature of that State passed in 1885 and 1886 were not applicable to it because passed subsequently to the date of the alleged contract between it and the city, of April 16, 1883; (2) that if they were applicable to it, they were violative of the constitution of the State
of New York, for several reasons stated; and (3) that if applicable, they also violated the Constitution of the United States in certain particulars specified. All of the points made by the relator were decided adversely to it in the state courts.
In this court, necessarily, the contention that the acts in question are violative of the constitution of the State is not raised, as we would have no jurisdiction to consider such questions. The contention here on the part of the relator as gathered from the assignment of errors may be thus stated:
(1) The acts of 1885 and 1886 are not applicable to the relator, for the reason urged before the courts of the State; and
(2) If they be held to apply to the relator they are violative of the Constitution of the United States in two particulars: (a) They deprive the relator of its property without due process of law; and (b) they impair the obligation of the contract made between the relator and the city on the 16th of April, 1883, the date of the acceptance by it of the provisions of the city ordinance of the 10th of that month. All the other points raised may be arranged under one or the other of the above heads.
It will be convenient to consider the questions involved in this case in somewhat the above order. In no sense of the term do we think it can be safely averred that the acts of 1885 and 1886 are not applicable to the relator. The language of both of these acts clearly precludes such a construction. It is declared in the third section above quoted that "any company operating or intending to operate electrical conductors" in the city shall be obliged to file with the Board of Subway Commissioners a "map or maps, made to scale," showing the proposed plan of construction of its underground electrical system; and shall also be obliged "to obtain the approval by said board of said plan of construction so proposed" before any underground conduits shall be constructed. The board is further given the power to compel the construction of the electrical system in accordance with the plans approved by it, and to modify, from time to time, those plans, if the public interest should require it. This language is plain and unambiguous, and is broad enough to include any and every electrical company, irrespective
of the date of its incorporation, operating or desiring to operate, either directly or indirectly, any lines of wire for telegraphic, telephonic, or illuminating purposes within the cities to which it is applicable, the city of New York confessedly being the only one affected.
Neither can it be said that the acts of 1885 and 1886 have a retroactive effect, at least so far as the relator is concerned, since whatever rights it obtained under the ordinance of 1883, which it accepted as the basis of the contract it claims to have entered into, were expressly subject to regulation, in their use, by the highest legislative power in the State acting for the benefit of all interests affected by those rights and for the benefit of the public generally, so long as the relator's essential rights were not impaired or invaded. New Orleans Gas Company v. Louisiana Light Company, 115 U.S. 650; Stein v. Bienville Water Supply Company, 141 U.S. 67.
In order to determine whether the relator's essential rights have been invaded, or the contract which it claims to have entered into impaired, or its property taken away without due process of law, it will be necessary to ascertain what rights and property it possesses under the alleged contract of April 16, 1883. This contract, if such it be, must be gathered from the statutes of the State, under which the relator was organized, and the ordinances of the city (which it accepted) by which its privilege of constructing an underground electrical system was conferred. Recurring to the general telegraph act of 1848 and the acts amendatory thereof and supplemental thereto, the material provisions of which are set out above, it is observed that in none of those acts is there any unqualified right conferred upon any electrical company to construct its lines wherever, or in whatever manner it might choose. On the contrary, in every one of those acts provision is made for the security of the rights of the public in the use of the streets and high ways which may be used by the ...