The result reached in this case met with such dissent from the public that at the earliest session of the legislature thereafter the doctrine of McDonald v. Hospital, supra, was in effect incorporated into the settled jurisprudence of the state by statute.28

WM. B. MORRIS.

28 Laws, Rhode Island, 1880, ch. 162, § 1. "No hos pital incorporated by the general assembly of this state, sustained in whole or in part by charitable contributions or endowments, shall be liable for the neg. lect, carelessness, want of skill, or for the malicious acts of any of its officers, agents or employees in the management of, or in the care or treatment of, any of the patients or inmates of such hospital, but nothing herein contained shall be so construed as to impair any remedy under existing laws which any person may have against any officer, agent or employee of any such hospital for any wrongful act or omission in the course of his official conduct or employment."

Supreme Court of Minnesota, May 10, 1901.

1. Held, that under the general laws of this state (section 28, ch. 34, Gen. St. 1866), as amended by chapter 73. Gen. Laws 1881, (section 2641, Gen. St. 1894), telephone companies are given the right to erect poles and wires within the urban ways and streets of this state as well as upon rural highways.

2. That the provisions of the charter of Minneapolis confer upon that city no authority to arbitrarily order a removal of such poles and wires, but only the right to regulate the placing of the same in its streets, and to compel the telephone, companies to put their wires in subsurface conduits when reason, conven. ience, or the good government of the municipality requires.

LOVELY, J.: The public importance of our previcus decision upon the control by the munic. ipalities of this state of their streets in the use of the same by telephone companies, as well as the fact that full consideration was not given in the original opinion to the subject of legislative authority for such control, nor to the dependent rights of the telephone companies thereunder, bas required a reinvestigation of the whole subject upon reargument. We recognize that important questions other than those actually referred to in the opinion are material to the disposition of the order of the trial court, and have regarded it as our duty to reconsider so much of the subject involved, determinative of this appeal, but not referred to in the opinion, which we think may be embraced comprehensively in the following propositions: (1) Did the telephone company have any right from the State to erect its poles and wires in defendant's streets? If so, what was the nature and extent of such right? (2) Did the city possess a delegated

power to control, limit, regulate, or restrict the placing of poles and wires by plaintiff in its streets? And, if so, what were the limitations of such right?

1. What were plaintiff's rights under the general laws of this state? It was claimed that we had overlooked the fact in the provious opinion that under the decisions of this court the city of Minneapolis had no power to make the contract with the telephone company, for the reason that such power must necessarily be derived from the State, where it originally belonged, as an element of its sovereignty, and that the State had never delegated such power to the city, from which conclusion it would necessarily follow that the contract between the city and the company was in excess of authority. The decisions invoked to support this position undoubtedly sustain the view that the plaintiff must necessarily rest its authority upon a prior grant of power from the state. Nash v. Lowry, 37 Minn. 261, 33 N. W. Rep. 787; City of St. Paul v. Chicago, M. & St. P. Ry. Co., 63 Minn. 330, 63 N. W. Rep. 267, 65 N. W. Rep. 267, 649, 68 N. W. Rep. 458, 34 L. R. A. 184. It is not to be questioned that this original element of state control over its public thoroughfares might be legally delegated to municipalities, even to the power of excluding poles and wires entirely from urban streets. In such case the streets cannot be used except by permission of the city, who can re. strain such use without reference to public benefits or advantage; and this conclusion presents the necessity of referring to the general legislation of the state, where authority to use such thoroughfares for poles and wires must be found, if it exists.

In 1860 the following statutory provision applicable to telegraph, companies was enacted: "Any telegraph company incorporated or organized under the laws of this state, shall have fuli power and right to use the public roads and highways of this state, on the line of their route, for the purpose of erecting posts or poles on or along the same, to sustain the wires or other fixtures: provided, however, that the same sball be located as in no way to interfere with the safety or convenience of ordinary travel on or over the said roads or highways." This section was incorporated into the revision of 1866, where it continued without change until 1881, when this statute was amended by inserting after the word telegraph" the words, "or telephone." Chapter 73, Gen. Laws 1881. Section 2641, Gen. St. 1894. In passing, it may be well to say that this court has never recognized any difference in character between telephone and telegraph companies. For the purpose of construing the effect of the legislative enactment referred to, no distinction can be made in favor of telegraph over telephone companies, in their imposition of burdens upon the public thoroughfares of this state.

It is contended by defendant that the legislature

did not intend to include the streets of a city in the term "road and highways," in the enactment of the amended statute of 1881, which gives the same right to telephone as to the telegraph companies, but that a distinction was intended, and must be now applied, in construing this statute, as between urban and rural highways, limiting such use solely to country roads. The definition of a word in a statute need not be absolutely decisive of its meaning in all cases. The history of the act, its general purpose, the mischief to be cured or benefits to be obtained, according to general understanding, as well as the sense to be derived from its connection in the same or other statutes, may be essential to aid courts in the duty of construction. The approved legal definition of "highway" is "a passage or road through the country, or some parts of it, for the use of the people. It is the generic name for all kinds of public ways." Bouv. Law Dict., "Highways." We might collect authorities without number to show that this term has been applied in judicial decisions, in its generic sense, to city streets. The result of such investigation leads to the conclusion, seemingly too plain for serious discussion, that the word "highway," in actual use, embraces city streets as well as country roads, furnishing the strongest inference that it was intended to apply to both, and that while the word "street" is more often used than "highway" to designate an urban way, yet it was in this statute used for both purposes.

The suggestion that the proviso limiting the erection of posts or poles so that the same shall "in no way interfere with the safety or conveyance of ordinary travel on or over said roads or highways" is more applicable to rural than urban streets is of little significance, or that such restriction is ordinarily a subject of municipal control under charter provisions has no persuasive force in construing into this law the distinction urged. Ordinary travel takes place on city streets as well as rural roads, and the proviso would go on further than to secure the protection when needed.

If we recur to the historical facts which assist in defining the meaning of this law, we find that, so far as the placing of poles and wires on highways is concerned, that right was created by legislative action more than 40 years ago, and it has continued in force and materially aided in the growth of this great commonwealth; and the only change of such right, until 1893, has been an extension of its benefits. For twenty years the telegraph companies of this state applied its terms comprehensively to cover their necessities upon all public ways, both ural and urban, when the telephone companies were given the same benefit. For 10 years thereafter, at least, the telegraph companies exercised the same privil.

urban districts to which they confined their business, and to which it is now claimed the statute did not refer. In other words, the telephone companies were using, under the benefits of this statute, without apparent objection, the places where it did not, on defendant's theory, apply, and did not use the only places where it did apply, while the telegraph companies were using both for the same purpose; and the inference that follows is obvious, and lies upon the surface. The people understood the law to mean what it said, and had found it sufficient to meet the necessities of the people of this state, and consonant with the demands of growth and progress, and for thirty years and more its benefits as to both kinds of companies were accepted, and it was not amended or changed.

The strongest argument in support of defendants' contention that there was a reserved legislative purpose to exclude urban thoroughfares from the benefits of the statutes is that such a restriction has been practically placed upon the statute by the plaintiff itself. It is urged that plaintiff and others similarly situated have repeatedly sought concessions from municipalities, particularly from defendants, at variance with the right to use their streets, which it now insists upon; that the privilege of placing poles and wires in the streets has never until the present time been demanded as a right, but has been accepted (as under the ordinance of 1883, set forth at length in the former opinion), and the fact that the plaintiff has recognized the power of the city to control this subject is to be given weight; and this, to a certain extent, is true, although to what extent, and how far such privileges have been asked for and received, in the absence of any reliable data, it is not easy to determine. There is some logical force in this claim, although it cannot be deemed controlling, nor sufficient to overcome the spirit of the statute expressed in its literal terms; for it is in opposition to the source of the real authority to construe the law, which is judicial, and vested in the courts. If the meaning of the words of the statute were doubtful, the interpretation which the telephone company and the city have placed upon its meaning might be more weighty; but where there is no doubt, or private policy and self-interest dictate the action of either party, such arguments is of very little force. Were it clear that no such authority to use urban ways had been vested in the telephone company by the general statute, its assertion or assumption of such right would not create it, or, if a reasonable construction would not permit such a view, the plaintiff could not determine the question by its own acts. It would still be for the courts, rather than the plaintiff, to construe the meaning of the law.

We have not overlooked two recent enactments

providing for the organization of corporations, to the effect that no franchise should be granted to telegraph or telephone companies that would authorize them to place their poles and wires in city streets without permission of the municipality. Gen. Laws 1893, ch. 74. And to the same effect is Gen. Laws 1899, ch. 51. The plaintiff was organized as a corporation in 1878. It obtained the benefits of the act of 1860, above referred to, in 1881, which became a contract between the state and the plaintiff by the acceptance of the same. Hence the proviso in the law of 1893 and 1899, being prospective, could not impair rights that had become vested, because forbidden under the clearest prohibitions in the state and federal constitutions; and it is not claimed that these statutes did so, nor is it possible to treat the latter proviso as a legislative interpretation of the original act of 1860, which had been continued in force up to that time, without change, unless the inference follows, for what it is worth, that these restrictive provisions were enacted to impose upon companies organized in the future an obligation which was by the legislature not supposed to be expressed in any previous statute. This inference favors plaintiff's contention.

As a result of this review of the subject, we are led to the conclusion that the plaintiff bad a right to use the streets of the city, under proper regulations and restrictions (referred to in the original appeal) by the municipality. What such power of regulation in the city imposed in its relation to the plaintiff is still to be considered. Since the first argument in this case the general statute (section 2641, Gen. St. 1894) bas been judicially construed by the United States Circuit Court of this district, and the conclusions expressed above find authority therein, as well as the necessary deduction that any ordinance of the city interfering with or impairing the vested right thus conferred upon the plaintiff by the state violated constitutional rights and was invalid. Abbott v. City of Duluth (C. C.), 104 Fed: Rep. 833.

2. It still remains to consider such provisions of the city charter as affect the subject under the inquiry. Did the city possess a delegated power to limit and regulate the placing of poles and wires by plaintiff in its streets; and, if so, what were the limits upon such right? The provisions of the defendant's charter germane to this subject at the time when the ordinance of 1883 was enacted by the common council in the exercise of the delegation of power to defendant over its streets gave it the right, under subdivision 6, § 5, ch. 4, "to prevent the incumbering of streets, alleys, lanes, sidewalks, public grounds, or wharves with carriages, carts, wagons, sleighs, boxes, lumber, firewood, posts, awnings or any other materials or substance whatever;" and by 'subdivision 31, § 5, ch. 4, the power to remove and abate any nuisance, obstruction or encroachment upon the streets,

alleys, publie grounds and highways of the city;" and by section 1, ch. 8, "the care, supervision and control of all highways, streets, alleys, public squares and grounds within the limits of the city." Such was the power delegated to the city council to adopt the ordinance of 1883. set forth at length in the opinion, which conferred upon the plaintiff the right to use and occupy the streets and alleys of the city with its poles and wires. Nothing in the provisions above quoted conflicts with the power to pass such ordinance. On the other hand, under such general provisions, even in the absence of the general statute (section 2641, Gen. St. 1894), it might be held that sufficient power was so dele-gated for that purpose. In a recent case decided by the United States Circuit Court of Appeals for this circuit, it was held (Sanborn, J.), under a statute where the city of Colorado Springs was empowered to regulate the use of its streets, to provide for the lighting of the same, and to pass all ordinances and to make all rules and regulations demanded or necessary to exercise those powers, that it had the implied authority to grant the right and privilege to construct a power house to generate electricity on its public grounds, etc. Pikes Peak Power Co. v. City of Colorado Springs (C. C. A.) 105 Fed. Rep. 1. Thirty-four days after the passage of the ordinance under which the city attempted to grant the right to the telephone company to erect its poles in its streets, the charter of the city was amended by adding to section 5, ch. 4, the following authority to be exercised by the council: "To regulate and control or prohibit the placing of poles and the suspending of electric and other wires along or across the streets of said city, and to require any or all already placed or suspended either in limited districts, or throughout the entire city, to be removed or to be placed in such manner as it may designate beneath the surface of the street or sidewalk." This provision does not declare that the power therein conferred is exclusive in the city, nor that the right to remove poles and wires in the streets is to be exercised by the city arbitrarily. If the general statute (section 2641. Gen. St. 1894) is controlling. as we have held above, this provision should be construed so as to barmonize with that statute. and not given such a construction as would give absolute power to the city to remove wires and poles without reason or necessity, for such a view would clearly interfere with plaintiff's vested rights; or if. as we are lead to believe, there was authority under the previous provisions of the charter in force at the time the ordinance of 1883 was enacted and accepted by the plaintiff, it follows, as held in Pikes Peak Power Co. v. City of Colorado Springs, supra. that an ordinance of a city passed under legislative authority, within the provision of the federal constitution, "cannot be repealed by later ordinances which would be so clearly a violation of section 10, art. 1, which prevents the passing

of a law impairing the obligations of a contract, and the fourteenth amendment to the constitution, which forbids the taking of property without due process of law," that, as held in that case, no argument to the contrary would be worthy of a moment's consideration."

We think much misunderstanding has arisen from the previous opinion, through a failure to realize what was actually determined. We have not held, and do not hold, that the city had the power to confer upon the plaintiff vested rights to irrevocably occupy its streets, in violation of any reasonable right therein by the city. We hold that the only power delegated by the state to the city under any of the charter provisions referred to is the power of regulation, and the necessary control incident to such power. We held in the former opinion, and now hold, that the only contract entered into by the city with the defendant was with reference to the manner and method of placing its poles and wires. Such contract was within the police power of the city, and, the defendant having acted upon the contract by the ordinance of 1883 as to how it should place its poles and wires, the city cannot, without reasonable cause, in the exercise of its power of regulation, revoke its contract as to such matters, and order a different arrangement. The power of regulation, or the police power, as there designated, belonged to the state, and was delegated to the city in its charter; and we think that the charter provisions referred to fully recognize its beneficent authority, which should be exercised in reason and judgment for the best interest and welfare of the municipality, and secures all that is essential to a proper and reasonable control of the plaintiff's business. It is not to be assumed that the legislature, in delegating such powers, intended to violate the organic law, or (what would be, perhaps, as bad in its practical effect) to invest the defendant with the power to confer a monopoly in the use of its streets to a favored corporation, which is the logical and necessary result of defendant's claim. If the claims of the city are well founded upon the issue raised by the demurrer, it can grant a right to-day, and deprive the party to whom it is granted of such right to-morrow. If it can confer the privilege upon the plaintiff of placing overhead wires on the streets, and immediately thereafter compel the plaintiff to replace the same in subsurface conduits in rural neighborhoods, where there is no reason or necessity for such change, which purpose is admitted by the demurrer in this case, it might immediately thereafter compel the removal of the wires so placed in subsurface conduits. Nor is such a result impossible of conjecture. Oscillations of power in local govern

guards of the constitution are the ultimate refuge from such usurpations, and it cannot be believed, when we consider the extreme and justifiable jealously which has existed on the part of the lawmakers to guard against the abuse of power, that they could have intended to confer by doubtful terms an arbitrary right upon any municipality in this state unreasonably to deprive its citizens of the benefits of progress or to grant monopolies.

We have noted the point that the defendant claims that injunction is not the proper remedy; that it was the prerequisite duty of the plaintiff to have applied for permission to place its poles to the city engineer, and, on his refusal, to seek its rights through mandamus. This is not a case where ministerial officers have refused to perform a duty imposed upon them by law, but where the city itself, by the enactment of ordinances, prohibits it officers from performing such duties. In such a case injunction is clearly the proper remedy. What we have stated above, in addition to what is held in the original opinion, must be deemed a disposition of the claim that section 5 of the ordinance of 1883 gave the city the arbitrary power to remove poles at its pleasure, and we adhere to our former conclusions in this respect.

While we have not noticed particularly all the points suggested by counsel on the reargument and briefs, they have all been fully considered, and we have covered the propositions which seem to us to be decisive; and have reached the conclusion-which seem to us clear as can be realized in any disputed legal controversy-that the power to place poles and wires in the streets of municipalities in this state has been conferred upon the plaintiff by the legislature; that the question as to the manner in which this power should be exercised to meet the demands of convenience and necessity was within the authority of the city; that the ordinance of 1883 was, to a certain extent, so far as manner and form, at least, are concerned, the subject of contract obligation; and that the subsequent ordinances of May and October, 1899, as alleged in the plaintiff's complaint and admitted by the demurrer, impose such burdens upon the plaintiff as to impair their legal contract rights, and to that extent must be restrained, leaving the question of fact yet to be determined, whenever raised in the proper manner, whether the provisions of those ordinances, or of any other that may be adopted, are within the limits of wholesome and proper municipal regulation. For the reasons stated above, we abide by the former opinion of this court, and the order sustaining the demurrer is overruled, and the case remanded.