State v. Mayor

• Decision Date: 17 February 1887
• Citation: 49 N.J.L. 344,8 A. 128
• Parties: STATE (DOMESTIC TELEGRAPH & TELEPHONE CO. and others, Prosecutors) v. MAYOR, ETC., OF NEWARK and others.
• Court: New Jersey Supreme Court

8 A. 128

49 N.J.L. 344

STATE (DOMESTIC TELEGRAPH & TELEPHONE CO. and others, Prosecutors)

v. MAYOR, ETC., OF NEWARK and others.

Supreme Court of New Jersey.

February 17, 1887.

(Syllabus by the Court.)

On certiorari.

By agreement of counsel, the following, among other, facts appear. On the sixteenth day of April, A. D. 1886, a communication was presented to the mayor and common council of the city of Newark, at a meeting of the council held that day, of which the following is a copy:

"To the Honorable the Mayor and Common Council of the City of Newark, N. J.—Gentlemen: The Citizens' Telephone Company of Newark, N. J., respectfully petition your honorable body to grant to them the right to erect and maintain their poles and wires on the various streets, avenues, and alleys of the city of Newark, subject, of course, to the charter and ordinances of the city; the poles and wires to be erected under the supervision of the street commissioner. The company agree, in consideration of this grant by the city, to furnish a telephone with free toll to all connecting exchanges to each of the public offices and departments of the city government, free of charge to the city; the public offices or departments where the same shall be erected to be designated by resolution of the common council.

"Bated April 16, 1886.

"J. C. CLAYTON, Secretary. E. A. WILKINSON, President."

And at the same meeting the said council passed a resolution of which the the following is a copy: "Whereas, the Citizens' Telephone Company, a corporation created under the laws of this state, and composed of our own citizens, has presented to council a petition requesting permission to erect poles, and string wires through the city, to establish cheaper telephonic service for the citizens, therefore, resolved, that permission to so erect poles and string wires be given to said Citizens' Telephone Company as requested, upon the conditions stated in said petition: provided, however, that no poles shall be erected on any street until the consent of the abutting property owner shall be first obtained." This resolution was approved by the mayor of the city on the twenty-eighth day of April, 1886.

The certiorari was allowed to bring up said resolution on the prosecution of the Domestic Telegraph & Telephone Company of Newark, a corporation duly organized under the act of the legislature of this state entitled "An act to incorporate and regulate telegraph companies," approved April 9, 1875, and furnishing its subscribers in the city of Newark with telephonic intercommunication by means of poles and wires, erected, by authority of said law, in the streets of said city, and of Jabez Fearey, Edward Weston, and Marcus L. Ward, stockholders in said company, and owners of real estate located in various streets of said city.

Mr. Young and Mr. McCarter, for prosecutors.

Mr. Fort, for defendants.

MAGIE, J. Defendants' counsel first contended that prosecutors had no right to question the validity of the resolution brought before us by this certiorari. But the precise question thus raised was decided by this court in People's Gas-light Co. v. Jersey City, 46 N. J. Law, 297. Under the authority of that case it is plain that prosecutors may, by such a writ, challenge the authority of the city of Newark to adopt the resolution in question. It becomes necessary, therefore, to determine whether the city of Newark had power to do what by this resolution it attempted to do; that is, to grant to the Citizens' Telephone Company permission to erect poles, etc., in the public streets.

The public easement in highways is vested in the public, and can be divested by nothing short of an exercise of the sovereign power. Neither non-user nor adverse user will defeat the public rights. Smith v. State, 23 N. J. Law, 712; Price v. Plainfleld, 40 N. J. Law, 608. The legislature, representing the public, may release the public right by vacating the highway, may modify the public use by granting a right to use the highway for a horse railroad, or may restrict the public use by granting a right to erect poles and other obstructions in the highway. What the legislature may thus do it may delegate authority to do. Thus, from the earliest history of the state, authority to vacate highways in country districts has been conferred on special tribunals. Like authority has frequently been conferred on municipalities. No reason appears why all such authority possessed by the legislature may...