Ward, J.:
The defendant claims the right to construct and operate its telephone line without the consent of the city, under section 102 of chapter 566 of the Laws of 1890, being the Transporation Corpora- ' tians Law, which provides:
“ Such corporation (telegraph and telephone) may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways; and through, across or under any of the waters within the limits of this State, and upon, through or over any other land, subject to the right of the owner thereof to full compensation for the same.”
It also claims that, having acquired the right of the “ Baxter Overland Telephone and Telegraph Co.,” it can, under the franchise of that company construct and operate its telephone lines.
The last claim will be disposed of first. The right of that company, as the foregoing statement shows, was limited to stretching wires across the streets and along the housetops where the owners bonsented. It conferred no authority to put structures in the streets or do any of the acts complained of by the city in this action, and is, therefore, no protection to the defendant in doing any act beyond the limited permission given to the old company by the common council.
[364]*364The serious question is whether, under the statute cited, the Legislature intended to permit any telephone or telegraph corporation that might be organized under the Transportation Corporations Act to occupy the streets of the city of Utica, and leave the city powerless to prevent it. ' If this is so, any company may invade the streets to the absolute interference with the business, travel and comfort of its citizens.
The learned counsel for the defendant cites several cases which have been decided by the courts of this State that he claims sustain his contention. They are People v. Metropolitan Telephone, etc., Co. (11 Abb. N. C. 304; S. C., 31 Hun, 596); American Rapid Transit Co. v. Hess (125 N. Y. 641); Eels v. A. T. & T. Co. (143 id. 133); Hudson River Telephone Co. v. W. T. & R. Co. (135 id. 396; S. C., 121 id. 397).
An examination of "these cases fails to show any judicial sanction for the particular contention here. Indeed, there is much in those cases which tends to overthrow that contention. We will not .review them in detail, but refer to them to some extent hereafter. -
We have not been referred to any case where this claim has been asserted of the right contended for under the statute cited. The question is; therefore, new, and must be decided upon a consideration, not only of this statute, but of the powers. and duties of the plaintiff as a municipal corporation with reference to the streets of the city, as created by the charter and the ordinances of tile-city, and by the principles governing the rights of the public in the streets and highways as well as corporations exercising special privileges in the streets.
By the charter of the city of Utica the common council was given the power to perform the duties and be subject to the liabilities of commissioners of highways in towns, with the exceptions and modifications contained in the charter itself. It should also have the power to b lay out, open, make, amend, repair, alter, extend, widen, contract and discontinue streets, lanes and highways, walks, bridges, drains and sewers in the city,” and to require the removal of any building, fence or other obstruction upon the line of any street.
Section 35 of the charter provided that the common council “ shall have the cáre, management and control of the property of the city and its finances; it shall have power to ordain, alter, mod[365]*365ify and repeal ordinances not repugnant to the Constitution and laws of this State, such as it shall deem expedient for the good government of the city, the preservation of peace and good order, the suppression of vice and immorality, the benefit of trade and commerce and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect. It is also particularly authorized to enact ordinances for the following purposes,” among which are the following : “ To determine what are nuisances, and to prevent; abate and remove them; * * * to ascertain, establish and settle the boundaries of the city and all streets, alleys and highways therein, and to remove and prevent all encroachments thereon.”
By an amendment to the Utica charter in May, 1894, chapter 437 of the laws of that year, the Legislature provided (§ 99): “ The common council shall have power to cause any street, highway, lane or alley in said city to be graded, leveled, paved, or repaved, macadamized or telfordized, and to cause such crosswalks, sidewalks, drains and sewers to be made therein as it shall deem necessary, and the same to be repaired, mended or relaid as it shall deem necessary.”
This amendment, it will be observed, was enacted several years after the revision of the Transportation Corporations Law in 1890, whereby the Legislature again affirmed the right of the city to control its streets.
In pursuance of the power given the city under section 35 of the charter above quoted, the city adopted ordinances which were in force when the injunction in this action was granted forbidding the placing in any street of any obstruction thereof without permission of the mayor, etc.
Forbidding the placing in any street of any wood, lumber or other material or property of value.
Forbidding any person to take up any pavement in any street or side or crosswalk, or dig any hole or ditch in any street without permission of the mayor, etc.
Providing that no person should place in any street any ashes or any other obstruction to the use of the same by wagons, sleighs, etc.
Providing that the sidewalks and crosswalks of the city, being intended for the public accommodation and convenience, should be kept and reserved free from all obstruction.
[366]*366Providing that all telegraph and telephone wires should be placed beneath the fire alarm telegraph of said city. There is no dispute but that this last ordinance was violated by the defendant. Penalties were attached to the violation of these ordinances.
These provisions of the charter and of the ordinances are ample for the protection of the streets and the public that use them. The Legislature had.authorized them, and had constituted the city the agency to enforce them. They are necessary powers, and without them the city streets would be subject to all kinds of encroachments and their usefulness impaired if not destroyed.
The right to invade the streets with telephone lines secured by the Transportation Corporations Act must necessarily be subordinate to the right and duty of the city to keep its streets and sidewalks free and sufficient for the public use. Some power or jurisdiction must be the judge as to whether the proposed line will impair the usefulness of the streets. That power is given to the city where it must necessarily reside.
Take the case in hand; several corporations were already occupying the streets of Utica with their poles and appliances, when the defendant applied to the common council for leave to construct and operate its plant.
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Ward, J.:
The defendant claims the right to construct and operate its telephone line without the consent of the city, under section 102 of chapter 566 of the Laws of 1890, being the Transporation Corpora- ' tians Law, which provides:
“ Such corporation (telegraph and telephone) may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways; and through, across or under any of the waters within the limits of this State, and upon, through or over any other land, subject to the right of the owner thereof to full compensation for the same.”
It also claims that, having acquired the right of the “ Baxter Overland Telephone and Telegraph Co.,” it can, under the franchise of that company construct and operate its telephone lines.
The last claim will be disposed of first. The right of that company, as the foregoing statement shows, was limited to stretching wires across the streets and along the housetops where the owners bonsented. It conferred no authority to put structures in the streets or do any of the acts complained of by the city in this action, and is, therefore, no protection to the defendant in doing any act beyond the limited permission given to the old company by the common council.
[364]*364The serious question is whether, under the statute cited, the Legislature intended to permit any telephone or telegraph corporation that might be organized under the Transportation Corporations Act to occupy the streets of the city of Utica, and leave the city powerless to prevent it. ' If this is so, any company may invade the streets to the absolute interference with the business, travel and comfort of its citizens.
The learned counsel for the defendant cites several cases which have been decided by the courts of this State that he claims sustain his contention. They are People v. Metropolitan Telephone, etc., Co. (11 Abb. N. C. 304; S. C., 31 Hun, 596); American Rapid Transit Co. v. Hess (125 N. Y. 641); Eels v. A. T. & T. Co. (143 id. 133); Hudson River Telephone Co. v. W. T. & R. Co. (135 id. 396; S. C., 121 id. 397).
An examination of "these cases fails to show any judicial sanction for the particular contention here. Indeed, there is much in those cases which tends to overthrow that contention. We will not .review them in detail, but refer to them to some extent hereafter. -
We have not been referred to any case where this claim has been asserted of the right contended for under the statute cited. The question is; therefore, new, and must be decided upon a consideration, not only of this statute, but of the powers. and duties of the plaintiff as a municipal corporation with reference to the streets of the city, as created by the charter and the ordinances of tile-city, and by the principles governing the rights of the public in the streets and highways as well as corporations exercising special privileges in the streets.
By the charter of the city of Utica the common council was given the power to perform the duties and be subject to the liabilities of commissioners of highways in towns, with the exceptions and modifications contained in the charter itself. It should also have the power to b lay out, open, make, amend, repair, alter, extend, widen, contract and discontinue streets, lanes and highways, walks, bridges, drains and sewers in the city,” and to require the removal of any building, fence or other obstruction upon the line of any street.
Section 35 of the charter provided that the common council “ shall have the cáre, management and control of the property of the city and its finances; it shall have power to ordain, alter, mod[365]*365ify and repeal ordinances not repugnant to the Constitution and laws of this State, such as it shall deem expedient for the good government of the city, the preservation of peace and good order, the suppression of vice and immorality, the benefit of trade and commerce and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect. It is also particularly authorized to enact ordinances for the following purposes,” among which are the following : “ To determine what are nuisances, and to prevent; abate and remove them; * * * to ascertain, establish and settle the boundaries of the city and all streets, alleys and highways therein, and to remove and prevent all encroachments thereon.”
By an amendment to the Utica charter in May, 1894, chapter 437 of the laws of that year, the Legislature provided (§ 99): “ The common council shall have power to cause any street, highway, lane or alley in said city to be graded, leveled, paved, or repaved, macadamized or telfordized, and to cause such crosswalks, sidewalks, drains and sewers to be made therein as it shall deem necessary, and the same to be repaired, mended or relaid as it shall deem necessary.”
This amendment, it will be observed, was enacted several years after the revision of the Transportation Corporations Law in 1890, whereby the Legislature again affirmed the right of the city to control its streets.
In pursuance of the power given the city under section 35 of the charter above quoted, the city adopted ordinances which were in force when the injunction in this action was granted forbidding the placing in any street of any obstruction thereof without permission of the mayor, etc.
Forbidding the placing in any street of any wood, lumber or other material or property of value.
Forbidding any person to take up any pavement in any street or side or crosswalk, or dig any hole or ditch in any street without permission of the mayor, etc.
Providing that no person should place in any street any ashes or any other obstruction to the use of the same by wagons, sleighs, etc.
Providing that the sidewalks and crosswalks of the city, being intended for the public accommodation and convenience, should be kept and reserved free from all obstruction.
[366]*366Providing that all telegraph and telephone wires should be placed beneath the fire alarm telegraph of said city. There is no dispute but that this last ordinance was violated by the defendant. Penalties were attached to the violation of these ordinances.
These provisions of the charter and of the ordinances are ample for the protection of the streets and the public that use them. The Legislature had.authorized them, and had constituted the city the agency to enforce them. They are necessary powers, and without them the city streets would be subject to all kinds of encroachments and their usefulness impaired if not destroyed.
The right to invade the streets with telephone lines secured by the Transportation Corporations Act must necessarily be subordinate to the right and duty of the city to keep its streets and sidewalks free and sufficient for the public use. Some power or jurisdiction must be the judge as to whether the proposed line will impair the usefulness of the streets. That power is given to the city where it must necessarily reside.
Take the case in hand; several corporations were already occupying the streets of Utica with their poles and appliances, when the defendant applied to the common council for leave to construct and operate its plant. The question for the common council to meet was, whether the defendant’s structures would impair the usefulness of the streets already incumbered with similar lines.
In deciding that question they were acting in a quasi judicial or discretionary character with which the courts will not ordinarily interfere. (Hines v. City of Lockport, 50 N. Y. 236; Mills v. The City of Brooklyn, 32 id. 489; Monongahela City v. Monongahela El. Light Co., 4 Am. El. Cas. 53.)
The Transportation Corporations Act gave the defendant no interest in the streets of the city of Utica. It was only intended to protect telegraph and telephone companies from indictment for maintaining public nuisances in putting their poles in the streets.
The Legislature in the exercise of its police powers may regulate the use of the streets of a city and may prohibit their use for any purpose inconsistent with general street purposes. It may also authorize their use for public purposes not inconsistent with their use as street, (Eels v. American Telephone & Telegraph Co., 20 N. Y. Supp. 600; affd., 143 N. Y. 133; Cohen v. The Mayor, [367]*367113 id. 532, and see Judge Adams’ opinion in D., L. & W. R. R. Co. v. City of Buffalo, 4 App. Div. 562, 564.)
Section 102 of the Transportation Corporations Act, above cited, first appeared in the statutes of this State in chapter 265 of the Laws of 1848. Section 5 of that act contained the provision we are considering. There was an amendment to that chapter in 1853. (Chap. 471.) Prior to the revision of 1890, section 5 read as does section 102 of the Transportation Corporations Law, except that it was provided that the lines should not be so constructed as to incommode the public use of the roads or highways. This last provision was omitted from the revision of 1890, and it is suggested by the learned counsel for the appellant that the omission of these words in the revision is significant of the intention of the Legislature to permit the telephone lines to be constructed in the streets and highways "whether they incommode the public use of the streets and roads or not.
We cannot suppose that the Legislature intended such an extraordinary result by this omission; that contention is answered emphatically in the case of H. R. T. Co. v. W. T. & R. Co. (135 N. Y. 393, 407), where the Court of Appeals says : “ The primary and dominant purpose of a street is for public passage, and any appropriation of it by legislative sanction to other objects must be deemed to be in subordination to this use unless a contrary intent is clearly expressed.”
There is no contrary intent expressed in the Transportation Corporations' Law.
The counsel makes it an interference only from the omission, which is not supported by reason or authority.
The Utica city charter is a local law, and we are not to presume that the Legislature intended by the Gleneral Telephone Act to repeal or nullify the provisions of the charter governing the admission of telephone and telegraph lines into the city in the absence of any legislative declaration to that effect. And the provisions of the Telephone Act are not so far inconsistent to the city charter as to create such a repeal by implication.
We cannot better conclude the discussion of this branch of the case than with a quotation from Monongahela City v. Monongahela El. Light Co. (supra) : “ All legislative grants to corporations * * * simply to occupy the streets * * * are made sub[368]*368ject to the police powers of the municipality. * * * Where the Legislature has given * * * a general grant to enter the streets of a city, still the city, in the exercise of its police powers, can supervise and control the erection and maintenance of its poles and wires. 'To say that a corporation or individual who has the right * * * to erect poles in the public highways, can do so without any restraint whatever, and without any liability to have the exercise of that right regulated with reference to the rights of other persons exercised upon the same highway, or to the rights of the municipality, appears to me to be the assertion of a proposition which would practically take the control of the streets out of the hands of the city and place them in the hands of individuals or corporations.’ ”
The appellant’s counsel makes the point that the plaintiff is seeking to enforce the ordinances of the city by injunction, which cannot be done, and that the remedy is at law for the collection of the penalty. If the action was simply to enforce the ordinances and realize penalties, the objection would have force. But this action goes far beyond such harrow bounds. It is sought, in this action, to restrain acts that cannot be compensated by damages. It is sought to prevent irreparable mischief; the mischief which it seeks to guard against, if consummated, would find no _ adequate remedy at law. The ordinances are simply referred to as indicating the power of the city in regard to its streets, and the exercise of that power to some extent in the creation of its ordinances. No penalties are sought to be recovered. This is purely an equitable action, and the right to maintain it upon the record presented to us upon this appeal would seem to be clear.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
All concurred, except Hardin, P. J., and Adams, J., dissenting.