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do so cost him his arm. And further, tbat English decisions uniformly regarding them the corporation did not use proper care in as overruled. In view of these later deselecting the interne, who was incompetent cisions the question here is whether a cbarifor his position, and thereby he suffered the table corporation like the defendant wbich injury he complained of. He contends that holds its property for the charity, and behe was entitled to recover on both these cause it holds its property for the charity, grounds, and if the evidence was sufficient is relieved from all responsibility for the to establish them, we think that he was en: torts or negligence of its officers, trustees, titled to recover on both grounds unless the agents or servants. We have come to the hospital enjoys some peculiar immunity. conclusion after much consideration that it This brings us to the important question is not. We understand the doctrine of whether the hospital does enjoy any peculiar the recent English cases to be this, that exemption from liability. The claim that it where there is a duty there is, prima facie enjoys such an exemption rests upon two at least, liability for its neglect; and that grounds, to-wit, on the ground of public where a corporation is created for certain policy and on the ground that the hospital purposes which cannot be executed withhas no funds except such as are exclusively out the exercise of care and skill, it becomes dedicated to the charitable uses for which it the duty of the corporation to exercise such was established, and which therefore cannot care and skill, and the fact that it acts be applied to indemnify a patient who has been gratuitously and has no property of its own injured by the negligence or malpractice of in which it is beneficially interested will not a pbysician or surgeon or of a medical or exempt it from liability for any neglect of surgical interne. The first is based on the duty if it has funds, or the capacity of acquirargument that hospitals like the Rhode Island | ing funds, for the purposes of its creation Hospital are public benefits, but that if they which can be applied to the satisfaction of are liable for the torts of the physicians or any judgment for damages recovered against surgeons attendant on them, or of the med it. We also understand that the doctrine ical or surgical internes, or of their nurses is that the corporate funds can be applied and other servants, people will be discour notwithstanding the trusts for which they aged from voluntarily contributing to their are held, because the liability is incurred fouadation and support, and therefore pub in carrying out the trusts and is incident lic policy demands that they should be ex | to them. We do not understand, however, empted from liability. In our opinion the that the corporate property is all equally apargument will not bear examination. The 'plicable. " It may be that some of the corpublic is doubtless interested in the main- porate property, the buildings and grounds tenance of a great public charity such as the for example, is subject to so strict a dedicaRhode Island Hospital is; but it also bas an tion that it cannot be diverted to the payinterest in obliging every person and every ment of damages. But, however that may be, corporation which undertakes the perform we understand that the defendant corporaance of a duty to perform it carefully, and to tion is in the receipt of funds which are apthat extent therefore it has an interest against plicable generally to the uses of the hospital, exempting any such person and any such and we think a judgment in tort for damages corporation from liability for its negligence. against the corporation can be paid out of The court cannot undertake to say that the them."27. And it was tberefore held that the former interest is so supreme ibat the latter court below erred in directing a verdict for must be sacrificed to it. Whetber it shall be defendant on the ground that said instituor pot is not a question for the court but for | tion was the dispenser of a public cbarity the legislature. The second ground is one and dependent for support on voluntary con, of the grounds suggested in McDonald v. tributions, and consequently for reasons of Hospital, supra. The line of earlier English public policy, exempted from liability for any cases on which this decision is based bare no negligence or unskillfulness of its agents, value as precedents in any case where there servants, pbysicians, surgeons and internes. are funds or income which can be applied to

2: Glavin v. Rhode Island Hospital, 12 R. I. 411,84 the payment of damages, the more modern | A'm. Rep. 675.

The result reached in this case met wits power to control, limit, regulate, or restrict the such dissent from the public that at the

placing of poles and wires by plaintiff in its

streets? And, if so, what were the limitations of earliest session of the legislature thereafter

such right? the doctrine of McDonald v. Hospital, supra,

1. What were plaintiff's rights under the was in effect incorporated into the settled general laws of tbis state? It was claimed that jurisprudence of the state by statute. 28 we had overlooked the fact in the provious opin

WM. B. MORRIS.

ion that under the decisions of this court the city

of Minneapolis bad no power to make the con28 Laws, Rbode Island, 1880, ch. 162, $ 1. "No bos. tract with the telepbone company, for the reason pital incorporated by the general assembly of this

that such power must necessarily be derived state, sustained in whole or in part by cbaritable con

from the State, where it originally belonged, as tributions or endowments, sball be liable for the peg.

an element of its sovereignty, and that the State lect, carelessness, want of skill, or for the malicious acts of any of its officers, agents or employees in the

had never delegated sucb power to the city, from management of, or in the care or treatment of, any of

wbich conclusion it would necessarily follow that the patients or inmates of such hospital, but nothing

the contract between the city and the company bereia contained sball be so construed as to impair was in excess of authority. The decisions inany remedy under existing laws wbich any person voked to support this position undoubtedly susmay have against any officer, agent or employee of tain the view that the plaintiff must necessarily any such hospital for any wrongful ac! or omission in

rest its autbority upon a prior grant of power from the course of his official conduct or employment."

the state. Nash v. Lowry, 37 Minn, 261, 33 N.

W. Rep. 787; City of St. Paul v. Chicago, M. & TELEPHONE COMPANIES -- ERECTION OF St. P. Ry. Co., 63 Minn. 330, 63 X. W. Rep. 267, POLES AND WIRES-SUBSURFACE

65 N. W. Rep. 267, 649, 68 N. W. Rep. CONDUITS.

458, 34 L. R. A. 184. It is not to be questioned

that this original element of state control over NORTHWESTERN TEL. EX. CO. v. CITY OF

its public thorougbfares might be legally deleMINNEAPOLIS.

gated to municipalities, even to the power of exSupreme Court of Minnesota, May 10, 1901.

cluding poles and wires entirely from urban 1. Held, tbat under the general laws of tbis state

streets. In such case the streets cannot be used (section 28, ch. 34, Gep. St. 1866), as amended by except by permission of the city, wbo can re. cbapter 73, Gen. Laws 1881, (section 2641, Gen. St. strain such use without reference to public 1894), telephone companies are given the right to benefits or advantage; and this conclusion preerect poles and wires within the urban ways and

sents the necessity of referring to the general streets of this state as well as upon rural bigbways.

legislation of the state, where authority to use 2. That the provisions of the cbarter of Minneapolis

such thoroughfares for poles and wires must be confer upon that city no authority to arbitrarily order a removal of such poles and wires, but only the

found, if it exists. right to regulate the placing of the same in its streets,

In 1860 tbe following statutory provision apand to compel tbe telephone, companies to put their plicable to telegraph, companies was enacted: wires in subsurface conduits when reason, conven. "Any telegraph company incorporated or organience, or the good government of the municipality ized under the laws of this state, shall bave fuli requires.

power and right to use the public roads and LOVELY, J.: The public importance of our highways of tbis state, on the line of their route, previcus decision upon the control by the munic. for the purpose of erecting posts or poles on or ipalities of this state of their streets in tbe use along the same, to sustain the wires or otber of the same by telepbone companies, as well as tixtures : provided, however, that the same sball the fact tbat full consideration was not given in be located as in no way to interfere with the the original opinion to the subject of legislative safety or convenience of ordinary travel on or authority for such control, nor to the dependent over the said roads or bigbways." This section rights of the telepbope companies thereunder, was incorporated into the revision of 1866, where bas required a reinvestigation of the whole sub it continued without cbange until 1881, wben ject upon reargument. We recognize that im this statute was amended by inserting after tbe portant questions other than those actually re word “telegraph" the words, “or telephone." ferred to in the opinion are material to the dis Chapter 73, Gen. Laws 1881. Section 2641, Geo. position of the order of the trial court, and have St. 1894. In passing, it may be well to say regarded it as our duty to reconsider so much tbat this court has never recognized any difof the subject involved, determinative of this ap. ference in cbaracter between telephone and peal, but not referred to in the opinion, which | telegraph companies. For the purpose of conwe think may be embraced comprehensively in struing tbe effect of the legislative enactment the following propositions: (1) Did the tele. referred to, po distinction can be made in phone company have any right from the State favor of telegraph over telephone companies, in to erect its poles and wires in defendant's streets? their imposition of burdens upon the public If so, wbat was the nature and extent of such thorougbfares of this state. right? (2) Did the city possess a delegated | It is contended by defendant that the legislature did not intend to include the streets of a city in | urban districts to which they confined their busithe term "road and highways," in the enactment ness, and to which it is now claimed the statute of the amended statute of 1881, which gives the did not refer. In other words, the telephone same rigbt to telephone as to the telegraph com companies were using, under the benefits of this panics, but tbat a distinction was intended, and statute, without apparent objection, the places must be now applied, in construing this statute, | where it did not, on defendant's theory, apply, as between urban and rural highways, limiting and did not use the only places where it did apsach use solely to country roads. The definition ply, while the telegraph companies were using of a word in a statute need not be absolutely de. both for the same purpose; and the inference cisive of its meaning in all cases. The history of that follows is obvious, and lies upon the surface. the act, its general purpose, the miscbief to be The people understood the law to mean wbat it cured or benefits to be obtained, according to said, and had found it sufficient to meet the general understanding, as well as the sense to be necessities of tbe people of this state, and conderived from its connection in the same or other sonant with the demands of growth and progress, statutes, may be essential to aid courts in the duty and for thirty years and more its benefits as to of construction. The approved legal definition both kinds of companies were accepted, and it of "highway" is a passage or road through the was not amended or changed. country, or some parts of it, for the use of the

The strongest argument in support of defend. people. It is the generic name for all kinds of ants' contention that there was a reserved legispublic ways." Bouv. Law Dict., “Highways." | lative purpose to exclude urban thoroughfares We might collect authorities without number from the benefits of the statutes is that such a reto show that this term has been applied in judi. striction has been practically placed upon the cial decisions, in its generic sense, to city streets. statute by the plaintiff itself. It is urged that The result of such investigation leads to tbe con

plaintiff and others similarly situated have reelusion, seemingly too plain for serious discus peatedly sought concessions from municipalities, sion, that the word “highway,” in actual use, particularly from defendants, at variance with embraces city streets as well as country roads, the rigbt to use their streets, which it now insists furnishing the strongest inference that it was in

upon; that the privilege of placing poles and tended to apply to botb, and that while the word wires in the streets has never until the present "street" is more often used than "highway" to time been demanded as a right, but has been acdesignate an urban way, yet it was in this statute cepted (as under the ordinance of 1883, set forth used for both purposes.

at length in the former opinion), and the fact The suggestion that tbe proviso limiting the that the plaintiff has recognized the power of the erection of posts or poles so that the same sball | city to control this subject is to be given weight; "in no way interfere with the safety or convey. and this, to a certain extent, is true, although to ance of ordinary travel on or over said roads or what extent, and how far such privileges have highways" is more applicable to rural tban urban been asked for and received, in the absence of any streets is of little significance, or that such re | reliable data, it is not easy to determine. There striction is ordiparily a subjeet of municipal con is some logical force in this claim, althougb it trol under cbarter provisions bas no persuasive cannot be deemed controlling, nor sufficient to force in construing into this law the distinction overcome the spirit of the statute expressed in urged. Ordinary travel takes place on city its literal terms; for it is in opposition to the streets as well as rural roads, and tbe proviso source of the real authority to construe the law, would go on furtber than to secure the protection which is judicial, and vested in the courts. If wben needed.

the meaning of the words of the statute were If we recur to the historical facts wbich assist doubtful, the interpretation which the telephone in defining the meaning of this law, we find that, company and the city bave placed upon its meanso far as tbe placing of poles and wires on bigb. ing might be more weigbty; but where there is ways is concerned, that right was created by | no doubt, or private policy and self-interest diclegislative action more than 40 years ago, and it | tate tbe action of either party, such arguments bas continued in force and materially aided in is of very little force. Were it clear that DO cbe growth of this great commonwealth; and the sucb authority to use urban ways had been only change of such rigbt, until 1893, bas been vested in the telephone company by the general an extension of its benefits. For twenty years the

statute, its assertion or assumption of such right telegraph companies of this state applied its would not create it, or, if a reasonable constructerms comprehensively to cover their necessities tion would not permit sucb a view, the plaintiff upon all public ways, both ural and urban, when could not determine the question by its own acts. The telephone companies were given the same

It would still be for the courts, rather than tbe benefit. For 10 years thereafter, at least, the

plaintiff, to construe the meaning of the law. belegraph companies exercised the same privil. We have not overlooked two recept enactments eges as before, while the telephone companies | affecting the subject. In 1893, for the first time, during the intermediate period between the a restrictive proviso was incorporated into an amendment and the origin of the long-distance amended section of title 1, § 1, ch. 34, Gen. St. service derived no other benefits than witbin the 1878 (title 1, § 2592, cb. 31, Gen. St. 1894),

providing for the organization of corpora alleys, public grounds and bigbways of the tions to the effect that no franchise should city;' and by section 1, ch. 8, the care, supervibe granted to telegraph or telephone com sion and control of all bighways, streets, alleys panies that would authorize them to place public squares and grounds within the limits of their poles and wires in city streets with the city.” Such was the power delegated to out permission of the municipality. Gen. Laws the city council to adopt the ordinance of 1883. 1893, ch. 74. And to the same effect is Gen. | set forth at length in the opinion, which conLaws 1899, ch. 51. The plaintiff was organized as ferred upon the plaintiff the right to use and oca corporation in 1878. It obtained the benefits of | cupy the streets and alleys of the city with its the act of 1860, above referred to, in 1881, which poles and wires. Nothing in the provisions became a contract between the state and the above quoted conflicts with the power to pass plaintiff by the acceptance of the same. Hence such ordinance. On the other hand, under such the proviso in the law of 1893 and 1899, being general provisions, even in the absence of the prospective, could not impair rights that had be general statute (section 2641, Gen. St. 1894), it come vested, because forbidden under the migbt be held that sufficient power was so dele.. clearest prohibitions in the state and federal con gated for that purpose. In a recent case decided stitutions; and it is not claimed that these by tbe United States Circuit Court of Appeals for statutes did so, nor is it possible to treat the this circuit, it was held (Sanborn, J.), under a latter proviso as a legislative interpretation of statute where the city of Colorado Springs was the original act of 1860, which had been con empowered to regulate the use of its streets, to tinued in force up to that time, without change, provide for the lighting of the same, and to pass unless the inference follows, for wbat it is worth, all ordinances and to make all rules and regula. that these restrictive provisions were enacted to tions demanded or necessary to exercise those impose upon companies organized in the future powers, that it had the implied antbority to an obligation which was by the legislature not grant the right and privilege to construct a supposed to be expressed in any previous statute. power house to generate electricity on its public This inference favors plaintiff's contention. grounds," etc. Pikes Peak Power ('0. v. City of

As a result of this review of tbe subject, we are Colorado Springs (C.C. A.) 105 Fed. Rep. l. led to the conclusion that the plaintiff bad a Thirty-four days after the passage of the ordinance right to use the streets of the city, under proper under which the city attempted to grant the regulations and restrictions (referred to in the right to the telephone company to erect its poles original appeal) by the municipality. What in its streets, tbe charter of the city was amended such power of regulation in tbe city imposed by adding to section 5, ch. 1, the following au. in its relation to the plaintiff is still to be con thority to be exercised by the council: “To sidered. Since the first argument in tbis case the regulate and control or probibit the placing of general statute (section 2641, Gen. St. 1894) bas poles and the suspending of electric and other been judicially construed by the United States wires along or across the streets of said city, and Circuit Court of this district, and the conclusions | to require any or all already placed or suspended expressed above find authority therein, as well either in limited districts, or throughout the en. as the necessary deduction that any ordinance of tire city, to be removed or to be placed in such the city interfering with or impairing the vested manner as it may designate beneath the surface right thus conferred upon the plaintiff by the of tbe street or sidewalk." This provision does state violated constitutional rights and was in. not declare tbat the power therein conferred is valid. Abbott v. City of Duluth (C.C.), 101 Fed. exclusive in the city, nor that the right to reRep. 833.

move poles and wires in the streets is to be ex2. It still remains to consider such provisions ercised by the city arbitrarily. If the general of tbe city charter as affect the subject under the statute (section 2641, Gen. St. 1894) is controlling, inquiry. Did the city possess a delegated power as we have held above, this provision should be to limit and regulate the placing of poles and construed so as to barmonize with that statute, wires by plaintiff in its streets; and, if so, wbat and not given such a construction as would give were the limits upon such right? The provisions absolute power to tbe city to remove wires and of the defendant's charter germane to this sub poles without reason or necessity, for such a ject at the time when the ordinance of 1883 was view would clearly interfere with plaintiff's enacted by the common council in the ex- vested rights; or if, as we are lead to believe, ercise of the delegation of power to defendant there 'wás authority under the previous proover its streets gave it the rigbt, under sub visions of the charter in force at the time the division 6, § 5, cb. 4, "to prevent the incumber | ordinance of 1883 was enacted and accepted by ing of streets, alleys, lanes, sidewalks, public the plaintiff, it follows, as held in Pikes Peak grounds, or wharves with carriages, carte, Power Co. v. City of Colorado Springs, supra. wagons, sleigbs, boxes, lumber, firewood, posts, that an ordinance of a city passed under legislaawnings or any other materials or substance tive authority, witbin the provision of the fedwhatever;" and by 'subdivision 31, § 5, cb. 4, eral constitution, “cannot be repealed by later the power to remove and abate any nuisance, ordinances which would be so clearly a violation obstruction or encroachment upon the streets, of section 10, art. 1, which prevents the passing

of a law impairing the obligations of a contract, guards of the constitution are the ultimate refuge and the fourteenth amendment to the constitu- from such usurpations, and it cannot be believed, tion, which forbids the taking of property with when we consider the extreme and justifiable out due process of law,” that, as held in that jealously which has existed on the part of the case, “no argument to the contrary would be lawmakers to guard agaidst the abuse of power, worthy of a moment's consideration."

that they could have intended to confer by doubt. We think much misunderstanding has arisen ful terms an arbitrary right upon any municifrom the previous opinion, through a failure to

pality in this state unreasonably to deprive its realize what was actually determined. We have citizens of the benefits of progress or to grant not held, and do not hold, that the city had the monopolies. power to confer upon the plaintiff vested rights We have noted the point that the defendant to irrevocably occupy its streets, in violation of claims that injunction is not the proper remedy; any reasonable right therein by the city. We that it was the prerequisite duty of the plaintiff bold that the only power delegated by the state

to have applied for permission to place its poles to the city under any of the charter provisions to the city engineer, and, on bis refusal, to seek referred to is the power of regulation, and the

its rights through mandamus. This is not a case necessary control incident to such power. We

where ministerial officers have refused to perbeld in the former opinion, and now hold, that form a duty imposed upon them by law, but the only contract entered into by the city with where the city itself, by the enactment of orditbe defendant was with reference to the man

nances, prohibits it officers from performing such ner and method of placing its poles and duties. In such a case injunction is clearly the wires. Such contract was within the police

proper remedy. What we have stated above, in power of the city, and, the defendant having

addition to what is held in the original opinion, acted upon tbe contract by the ordinance of 1883 must be deemed a disposition of the claim that as to how it should place its poles and wires, the section 5 of the ordinance of 1883 gave the city city cannot, without reasonable cause, in the ex

able cause in the ex- | the arbitrary power to remove poles at its pleaşercise of its power of regulation, revoke its con ure, and we adhere to our former conclusions in tract as to such matters, and order a different this respect. arrangement. The power of regulation, or the

While we have not noticed particularly all the police power, as there designated, belonged to

points suggested by counsel on the reargument the state, and was delegated to the city in its

and briefs, they have all been fully considered, charter; and we think that the charter provisions and we have covered the propositions which referred to fully recognize its beneficent author

seem to us to be decisive; and have reached the ity, which sbould be exercised in reason and conclusion-which seem to us clear as can be judgment for the best interest and welfare of the realized in any disputed legal controversy-that municipality, and secures all that is essential to a the power to place poles and wires in the streets proper and reasonable control of the plaintiff's

of municipalities in this state has been conferred business. It is not to be assumed that the legis. upon the plaintiff by the legislature; that the lature, in delegating such powers, intended to question as to the manner in whicb this power violate the organic law, or (what would be, per

should be exercised to meet the demands baps, as bad in its practical effect) to invest of convenience and necessity was within the defendant with the power to confer a mio the authority of the city; that the ordinopoly in the use of its streets to a favored cor nance of 1883 was, to a certain extent, so far poration, which is the logical and necessary as manner and form, at least, are concerned, the result of defendant's claim. If the claims of the subject of contract obligation; and that tbe subcity are well founded upon the issue raised by sequent ordinances of May and October, 1899, as the demurrer, it can grant a right to-day, and alleged in the plaintiff's complaint and admitted deprive the party to whoin it is granted of such by the demurrer, impose such burdens upon the right to-morrow. If it can confer the privilege plaintiff as to impair their legal contract rights, upon the plaintiff of placing overbead wires on and to that extent must be restrained, leaving the streets, and immediately thereafter compel the question of fact yet to be determined, whenthe plaintiff to replace the same in subsurface ever raised in the proper manner, whether the conduits in rural neighborhoods, where there is provisions of those ordinances, or of any other no reason or necessity for such change, which that may be adopted, are within the limits of purpose is admitted by the demurrer in this case, wholesome and proper municipal regulation. it might immediately, thereafter compel the re For the reasons stated above, we abide by the inoval of the wires so placed in subsurface con

former opinion of this court, and the order susduits. Nor is such a result impossible of con taining the demurrer is overruled, and the case jecture. Oscillations of power in local govern remanded. ment do not always vibrate from the same center, I START, C. J., dissenting: I cannot assent to for history is full of illustrations to show that the the conclusion reached by the court upon several guardians of the people may become their op vital questions, in this case. It is not my parpressors, through injurious monopolies that pose, however, to discuss them in detail, but to deprive the people of their privileges. The safe. | simply state my conclusions.

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