Inhabitants of the Township of East Orange v. Suburban Electric Light & Power Co.

44 A. 628, 59 N.J. Eq. 563, 14 Dickinson 563, 1899 N.J. LEXIS 163

• Court: Supreme Court of New Jersey
• Decided: November 20, 1899
• Status: Published

Opinion

The opinion of the court was delivered by

Magie, Chief-Justice.

Two appeals of the above title were argued together. Each complains of a decree enjoining appellant from cutting down certain wires of the respondent, attached to the poles of a telephone company, in a street within the township of East Orange. One decree was made upon a bill filed by respondent to obtain such relief, at a time when a resolution under which it claimed the consent of the township of East Orange had been given to the stringing of those wires remained unrescinded. The other decree was made upon a bill filed by respondent for the same relief after the municipal authorities claimed to have rescinded the resolution.

These decrees were made upon the advice of Vice-Chancellor Pitney, whose opinion is reported in 41 Atl. Rep. 865.

An examination of the opinion discloses that the vice-chancellor assumed that the legislative grant of power to such corporations as respondent is, by the act entitled “An act relating to eléctric light, heat and power companies,” approved April 21st, 1896 (P. L. of 1896 p. 322), to use the public roads or highways, streets, avenues and alleys in this state for the purpose of erecting posts or poles on the same, to sustain necessary wires, did not apply in the territory of appellants unless respondent had first obtained from appellant a designation of the streets on which the posts and poles should be placed.

Upon this assumption the learned vice-chancellor proceeded to consider and determine several important questions such as these — whether the permission required by the act of 1896 could be given by a resolution, whether the permission required a designation of the streets in which poles might be erected when the authority to string wires was alone exercised, whether a permission once given became an irrevocable license, and whether a permission thus given would authorize the stringing of such wires on poles of another company having permission to string wires for other purposes thereon.

I deem it unnecessary to determine whether these questions were rightly solved in the court below, for, upon the true construction of the act of 1896, the power thereby conferred upon such companies as the respondent was not limited by any requirement that permission should be first obtained from a township within which the power was exercised.

The power granted by the act was very extensive in its application to the public highways of the state, but it was admittedly within the authority of the legislature to grant.

The power is, however, limited by the proviso, which is expressed in these words:

“ Provided, however, no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the streets in which the same shall be placed and the manner of placing the same.”

The proviso is applicable in this ,case only if appellant comes within its meaning as being a town.

That word is used in our legislation in different senses. Stout v. Glen Ridge, 30 Vr. 201. Whether it is used in a particular statute in a general or in a restricted sense is to be determined by the legislative intent discoverable therefrom. As the word in its general sense includes the municipalities called cities, the express inclusion in this proviso of such municipalities by that name indicates clearly that the word “town” was not used in a general but in a restricted sense, and so would apply only to such municipalities as are towns eo nomine.

That such was the legislative intent appears, also, from a consideration of previous legislation upon the same subject.

By the provisions of the act entitled “A further supplement to an act entitled ‘An act concerning corporations, approved April 7th, 1875/ which supplement was approved May 10th, 1884” (P. L. of 1884 p. 331), power was conferred upon corporations having similar purposes to those for which respondent was formed as extensive as that conferred by the act of 1896, with a proviso in these terms :

“ Provided, however, no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the streets in which the same shall be placed and the manner of placing the same.”

By a supplement to the act of 1884, just cited, the act was amended so that the proviso read thus:

“ Provided, however, no posts or poles shall be erected in any street of any incorporated city or town or in any street of any township without first obtaining 'from the incorporated city or town or from the township committee of such township a designation of the streets in which the same shall be placed and the manner of placing the same.” P. L. of 1898 p. 412.

The act of 1896 contained the next expression of the legislative will upon this subject. It related to the same class of corporations. It conferred the like powers in public highways. It repealed inconsistent acts and, obviously superseded the prior legislation just referred to. When, therefore, we find the proviso to this act omit the words of the supplement of 1893, requiring the permission of the township committee in a township, it is at once obvious that the word “towns” in that proviso was not intended to include townships. It follows that it must have been intended to require the permission to be obtained only from cities and towns eo nomine.

That appeilaut is a municipal corporation having powers much more extensive than those conferred on ordinary townships and assimilated to the powers granted to towns created under special legislation prior to the adoption of the amendment to the constitution, and towns now organized or capable of being organized under existing legislation, does not prevent this conclusion. For when it is ascertained that the legislature has used the word “towns” in a limited and restricted sense, courts must accept that sense, and cannot by construction extend the meaning beyond the plain legislative intent.

It was upon similiar reasoning that I concurred in the late decision of this court to the effect that legislation expressed to be intended to affect “cities” would not be applicable to the town of Morristown. The trend of legislation had, in my judgment, clearly indicated that such language expressed a legislative intent to confine the legislative act to the municipal corporations named cities, and that such effect should be given to the act even though it was thereby brought under the ban of constitutional prohibition.

In the ease before us, no contention has been made that, upon such construction as I have attributed to the act of 1896, it falls within constitutional restrictions, and no consideration has been given to that question.

The result is that respondent was possessed of sufficient' authority to string and maintain the wires in question in the public street, and whether it originally acquired or afterwards retained the permission of the township authorities, was immaterial.

Upon this ground I shall vote to affirm the decrees in both cases.

For affirmance — The Chief-Justice,Depue, Van Syokel, Dixon, Garrison, Gummere, Ludlow, Collins, Lippincott, Bogert, Hendrickson, Adams, ISTixon, Vredenburgii — 14.

For reversal — Hone.