ELECTRIC IMP. CO. V. PITY AND COUNTY ,OF SAN FRANCISCO.
593
'ELECTRIC IMP. CO. 11. CITY AND COUNTY OF SAN FRANCISCO.
(CircwU Court, N. D. Oaliifornm. March 30,1891.) CONSTITUTIONAL LAW-POLICD POWER.
. Where the shows that the stretching of electric wires over and upon the roofs of buildings is extremely dangerous, both as being liable to originate fires and as obstructions to the extinguishment of fires otherwise originated. a city ordinance absolutelY the practice is a valid exercise of the pol1Qe power.
On Motion for Injunction. An ordinance of the board of supervisors of San Francisco, January 2Q,,189Q, yrs,s as follows: No. 2163. Prohibiting thesuspeDsion of electric wires over or uppn.t1Ieroofs of buildings, etc. The people of the city and county of San ordain as follows: , It shall be unlawful for any person, company, or corporation to rtl1i'dr shspllDd or stretCh over or across or upon the top or roof, or any portidri' of the top or roof, of any building in the city and (Jounty of San Francisco; ail'yiwire used for the purpose of conducting electricity, or an electric current, or for any purpose whatsoever. "Sec.2! It shall be unlawful for any person, company, or corporation to keep 91't;llain:tain over or across or upon the top or roof, or any portion of the top or toOf, of any building in the city and county of San Francisco, any wire used for the ,l>.urpose of conducting electricity or an electdc current, or for any'putpbsewbatsoever, for more than ten days after such person, company, or corporation shall have received notice in writing, signed by the chief en. gineel' of the fire department of said city and county, to remove the same; and every day subsequent to the ten days after such prescribed notice shall been given, any maintenance or. keeping of any wires hereinabove prohibited shall constitute a new and separate violation of this ordinance·." "S'eo. S. !tshall be unlawful for any person, company, or corporation to attach to or suspend from or support upon any building in the city and county of San Francisco any wire used for the pnrpose of conducting electricity, unless the same be attached, suspended, or supported for the purpose of supplying to the owner or the occupant of such building, or to the owner or occupant of some part thereof, electdc light or electric power, or telephone or telegraph service. , ":Sec.4· ..It shall be unlawful for any person, company, or corporation to run or suspend or stretch, or keep or maintain. upon any pole or other support erel.lted, in or upon the streets, or in or upon any str:oot, in the dty and county of Sap Francisco, any electric light wire, or any, wire used to conduct electricity, or an electric current, for the purpose of producing electric light Or motive power, unless such person, company, or corporation shall have heretofore .obtairied, or shall hereafter obtain,' permission of the board of supervisors of said city and county so to do. "Sec. Ii. The provisions of this ordinance shall not apply to any building occupied in his or its business, J;ly any person. company, or corporation engagedin selling or furnishing or supplying electric lights or electric power. or engaged conducting Ql'carrying on a telephone or telegraph business; nor ,. they apply to any wIre erected and. used exclusively for fu'e alarm and , "Sec. 6. Any person violating any ordinance shall be guilty
v.45F.no.9-38
..
FEDERA:t1:REF'ORTER, 'Vol. 45.> of a misdemeanor, and shall be punished by a fine not exceeding five hundred dollars. or by imprisonment in tM'county jail> /Jot mOl:e titan SiX>D;l,Wlths, or by both fine and imprisonment. "Sec. 7. If !\IlY lunor ,suspenfilrd or stretched, or who shall hereafter run or suspend or stretch, over or across or upon the top or roof, or any portion of the top or roof, of any building in thecity and Franciscq, whR,Sh,ll>\l bereafter keep or any'sucH W11'6Qyer:,Qracross or upon the;t,Qp orroof"or ,any portioD' of,t1m ,tQp"or roof, of f.nir·building, in and CoUllty, shall fail to l'emovethel'lame within teu'llay8'aftet'the' tecetpt' of written notice 10 do so, signedby-the chief engineer of the fire department of said city and county, then it shall be lawful for the said chief engineer of the fire department, and',he is':hereby,auW:tor(lireclted; to QauiilEtsuc/l , ':, " In attempted enforcement of such ordinance,thd city arid dounty' of San,FmntHlooi' thro1.'1'ghDavid'Scannell, chief engitieelfbf. ita :firedepaTt'its wiressusJ>etid'ed()ll' numerous }n; ,oJ, ,Woliecuti9n;
We
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,the beafing' of the suita: IWhich' it has in-. stituted against said city and county', and':against:saidDavid'ScanneH, t:hefi're de>partmlfflt Of sftidcity And county",' tore-
''',!fff!J.9WI.fTq:, Yi"an Ni,(j88, G.r:orfle,(J: GQfha", ." .& Mi,ller. R9d Before'SAWYER,:OircuitJudge., .
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tent my\>clf wIth ,a bl1ef After a' 'ca,reNil consideration of the' questions involved,
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wires over, or upon the rao{E! of buildings,", ,etc." is ;avalid .ordinance, passed within tl'lie;l:egitimate pGlice powers of the oity, undedheo authority of the state. :!h,BaHe1Mj;er v;JcfJt?o/,18Wall. that the power pf the state in its fullest' extent, [the pollce powei:,] observing that it em,bl'll-Qede11; Il-ffectipg the lleaJ.:th, gopd morals, peace ,and 8ajetyoj.8oaieuu"and tnatjIal1 'Borts ofreetrictioDsand burdens were im_ posedundeJ1fit; and not in confliet,with any iltitutidrUtl they Muld'not be sue<!essrulJi in' it So,' iii Jrut,cher( etc., Rep. ,652, the court, quoting from Chancellor Ken,t,:s!lYs: , ,." , trades; 'offer/Sive to the 'senses, the depr#ff,''6f powdef;;tb'eappHcati6n 61 steatIl-power 'to propel cal'S, the and,We all belli... 'lliwl-t.l 'Wie' nlidstof 'detf8e{i'ilipl.1llitiCJii; 'bit thegehl"1'al 'atld tional that oughlito I!IO' use His property' ail not to injure bIs i and tfi,at p1,ivate interests must be1l'}of.ciUsubsetvielft ''t'he gen,:', """" .f
r am' satlsfieq.
,U.} ',tlplicase.
ELECTRIC IMP. Co-,'V:' CITY AND
OF"cSAN FRANCISCO.
595
(Jonnolly;, 11-3 U.,S. Sup. Ct. Rep. 357, ,anel SOfJ'l}. 8.7:03,5 8u.p. Ct. Rep. 730, the court bold, upon a much milder,case of danger than this, thattke fourteenth amendl'(lent in '¥.to relpect interferes with, CY( limits the exercise of this poZ:ice;power. The of po other branch ,of this power is more important. than that, which. protects, or seeks to protect, the public safety of a great city, like That the stretcQing of these ,wires over bl1ildings in;the manner pra,cticed, as shown by the evidence; )10 one, I think can doubit afterreli'ding the affidavits, is extremely dangerous, both, as being liable to ,originate fires, alld as to of fires Indeed, the, dangedsa, of edge. We might almost as well require strict proof of the danger ()f storing gunpowder, or dynamite, in, under, upon, or about our houses. Even if these wires can be so put up and insulated aR to be safe, in the mode suggested by one of complainant's witnesses, Prof. Kieth, it has not claim that they are, now, not been done. The professor himself safe. The danger is of a character cogriate to that'of gunpowder. There the degree of the danger, but, the conseis, doubtless, quences are liable to be far more widespread and calamitous. Should a raging fire occur, originated by the electric current, or otherwise, these dangerans'wire!3. might so obstruct the efforts of the firemen it, as to result in the destruction of the entire city. It is; certfl.iuly, competent under the police powers of the state, to suppress such dangerthe interest of.the common safety of the, Who in'view of the constant, and perpetual menace, that the are unreasonable? Is it unreaflonahle because the remedy against the great publiC and privatenuisahceisprompt, and efficient, when no other remedy is certain to be equally so? We know not how soon a calamity from this source may come upon us. It may be while we are litigating the question. If one should store a large quantity of gunpowder or dynamite among the buildings in the mitlstof thQ;city, would It like remedy be deemed. unreasQnable,or inadmissible, or void, as not being due process of law? The fact. is, the gunpowder has no right to be there. It is a standing and dangerous menace which anyone affected by the nuisance has a right to abate. Andwhen it is so extended as to become a public menace and nUisance, the public officers, especially, When specifically can law.fully abate it. And "such a constaut authorized to do nuisance, in a degree perhaps, it is fest, these wires erected as theY appear to be, are. . Theyb1iLVe nei more'right there thit" gunpowder·. The only wonderis that'owners of buildings in view o'r thluccognizeddAnger will for such .purTrue, the make anarticle:dangerous, by simply de.c}aiingitto.pt'lSQdVhen,in fact, itis . But the practiqe, as jt"now'prevails;against whichthisorrlinance is di-rected, iSilhown to be dangerous, and, we, ourselves'L,l!:lJ )mow it toO,e, 89. 'f.l"1ere 9An be. np tbe order is generaL and.. to 'tOt " 'It {fis'fiat enforced' as:to:all, it andthe,ilhief "',-," ",
Hing v.
'",' ,';'.
'.':
596
FEDERAL REPORTER,
his purpose to enforce it, iq all cases, that come to his notiCe.' I see no good reason to believe,' that it was passed for the purpose ofdiscrimination infavor of another com'pany, as claimed, or that it is intended to be so enforced. I do not think it violates any provision of the national constitution. I regret to be obliged, by this decision, to affect, so seriously, the interests of th,e enterprising parties, who are endeavoring to supply our citizens with electricity for the various purposes to which it is now applied. But I (',annat decline to administer the law as I tind it, for the safety and security of the lives and property of the citizens of San Francisco. In accordance with the conclusions, which I have reached, an injunction must be denied, and it is so ordered.
(,'
(GrircuU Oourt, N. D. Oalifornia.' March ,30, 1891.) ,
On Motion fOJ: Injunction. Haggin &; Ness and fleorge O. florham, Jr., for complainant. , Langhome, & Miller and Estee, Wilson &; McCutcheon, for respondent. Before SAwYlm.. CIrcuit Judge. SAWYER, J. This is a simllarcase against the chief of the fire department of San Francisco, to enjoin,\lim from executing the order in question, by removing the numerous electric wires from certain buildings specified. Let a similar order be entered in case.
UNITED STATES .". SOUTHERN PAC.
R. Co. et Consolidated.) & LIME
{d.
(Nos. 67 t 68, 69,
.".
CoLTON MARBLE
Co. et
at {No.SS..)
,(Oircuit Oourt"S. 1; PU»LIOI.,'!Ni>B-RAILROAD
OaU!ornia. March 6, 1891.)
'l!. RAILROAD GRANT. ,"., " , " , Aet'Corlg.' Ju1y 21.'1866, fully.oonfetlred npon the S; P. R. R. Co. tberighttobuild the rq\\d in and, ear':l the land glT&I1ted by that act, without. authority of the state'leglslature. " ' , ,
Act Congi March 8.1871, gl'l\)lted certain lands to the S. P. R.;It. Qo" and provided , that if itsrout8, Whendesignatedj sllould be ,found tq be on the line of any other road 'to wbicli land bad also been granted, the amount theretofore granted should R. Co., so faras,their be dedu<ltMfl'Om the qliant,itytb,ereby granted to routes on the Ijame In bills brought byihe government to set aside'U:'pii.'tent to tbe'S,'P.R. RCa., it is alleged that the route of the A. andP. Co.· to whi9h;landhad also, and therouf,e, of,the S. P. R. R. Co., eacb, other in the state; Of, CijIifornia." Held, that this allegation does not bring the la'n4 within the exception bf said act, and' tlrllt under such ll.llEigation, even if proof that tb,e routes, upon tl;te it would not the government. , ' '