Appeal from superior court, Hartford county; John M. Thayer, Judge.
This was an application to the superior court, made by the state's attorney for Hartford county, on the relation of the Southern New England Telephone Company, for a mandamus against William Towers, street commissioner of New Britain. The application referred to the charter of the Southern New England Telephone Company, as found in volume 9, p. 605, of the Special Laws, and to an amendment of its charter, as set forth in volume 10, p. 837, of the Special Laws; and alleged that the said company had done, and was ready to do, all those things which, under its said charter and the said amendment, entitled it to have, and made it the duty of the defendant to issue to it, his written consent to lay its "wires, and conduits for its wires, in, through and under any public street" in the city of New Britain, and that the said company had made request to the defendant to give his written consent therefor, which he refused. The attorney moved the court to issue a writ of mandamus requiring the defendant to give his written consent as aforesaid. The court issued an alternative writ, which was duly served; and, on the day named, the parties appeared in court, and the defendant made return as follows: "Said William Towers, street commissioner of the city of New Britain; in obedience to a rule of this court ordering him to give his written consent, as such street commissioner, to the Southern New England Telephone Company, for the opening and excavating by said company in Church street, in said city of New Britain, on the north side thereof, between Elm and Main streets, in order that said the Southern New England Telephone Company may put into such openings and excavations a conduit, underground, for the purpose of laying and holding therein ducts and telephone wires, and may also build and maintain manholes to said conduits, and may also put in said openings and excavations lateral ducts, or small conduits, running from the main conduits to the curb, or signify cause to the contrary thereof to this court on the first Tuesday of December, A. D. 1898, now appears in court, and, for cause why his written consent should not be given as above stated, shows as follows, to wit: (1) The city of New Britain was incorporated by an act of the general assembly of this state approved July 15, 1870, which act was duly accepted by a majority of the freemen of the borough of New Britain at a meeting held on the 13th of January, 1871, which acceptance was ratified by an act of said general assembly approved June 16, 1871. (2)
Said city was reincorporated by an act of the general assembly, approved April 14, 1885, which act was in full force from the date of said approval until June 6, 1895. (3) Said city was reincorporated by an act of the general assembly approved June 6, 1895; and by the provisions of said act, as well as by the provisions of the act approved April 14, 1885, the common council of said city had, and there is still vested in it, the sole and exclusive authority and control over all streets and highways, and over all parts of streets and highways, within the limits of said city. (4) And by the provisions of such act, as well as by the provision of the act approved April 14, 1885, the common council of said city was authorized to pass orders and ordinances concerning the excavation or opening of streets, highways, or public grounds in said city for public or private purposes, and the location of any work therein, whether temporary or permanent, upon or under the surface thereof. (5) Chapter 21, § 8, of the ordinances of said city, passed by the common council of said city pursuant to the power given it by the provisions of said act of 1895, provides 'that every person who shall without the consent of the street commissioner or of the common council, dig up or excavate any portion of the streets, highways, sidewalks, or gutters of said city, or shall place therein any earth, stones, rubbish, or other obstruction to the public use or travel, or shall assist or abet in any of said acts, shall be guilty of a misdemeanor, and shall for such offense pay a penalty of ten dollars ($10.00)'; and said ordinance was in force on and prior to the 8th day of May, 1898, and has ever since been, and now is, in full force and effect; and this defendant denies that section 9, c. 21, of the ordinances of said city referred to in the alternative writ, is the only ordinance of said city concerning the opening of streets for the purpose of laying pipes, wires, or sewers therein, but the only ordinances conferring any power upon the street commissioner to give his consent to opening or excavating streets for said purposes are in chapter 21, §§ 8, 9. (6) The street commissioner of said city is appointed by the common council thereof, and is subject to the orders and directions of said common council. (7) The said Southern New England Telephone Company has never obtained the consent of the city of New Britain, or of the common council thereof, to lay and maintain underground wires, conduits, and ducts, or any underground work whatever, in Church street, in said city, between Elm and Main streets, and for that purpose to make excavations and openings in said street, or any portion thereof; but, on the contrary, on the 8th day of May, 1898, said telephone company applied to the common council of said city for permission to open the surface of Church street from its intersection with Elm street to its intersection with Main street, for the purpose of laying ducts, building manholes, handholes, and curb lateral ducts to contain the wires of said company, and permission was refused by said council; and no further application has been made to said council for like permission since the refusal of the application of May 8, 1898. (8) The portion of Church street referred to in said application of May 8th to the common council of said city was the same portion referred to in the application made to this defendant on the 4th of November, 1898; and the permission sought of, and refusal by, said common council, were for the same work for which permission was asked of this defendant in the application of November 4th. (9) The city of New Britain has a population of twenty-five thousand and upward; and there are in and along the streets of said city, including Church street, between Main and Elm streets, other than the wires of said telephone company, overhead wires for telephonic, telegraphic, fire-alarm, and electric lighting purposes. Church street is one of the main thoroughfares of said city, especially between Main and Elm streets; and that portion of said street has, at much expense, been macadamized by said city, and is extensively used for public travel. (10) Said city desires, so far as practicable, to get underground all the overhead wires now in use in said city; but it desires to attain that end by a plan whereby there shall be as few conduits and ducts as possible, and whereby public travel upon the streets and highways, and the sewers and gas and water pipes under the surface of said streets, shall be the least interfered with; and the common council of said city does not deem it for the best interests of said city or of the public that the Southern New England Telephone Company shall lay its conduits and ducts for its exclusive use, and under its exclusive control, without any regard to a uniform system that may be adopted for all the wires in said city, or the greater part thereof. On or about the 10th of February, 1898, the common council of said city appointed from its own body a committee to investigate the subject of the provision by the city of a conduit or subway in the central portion of the city, into which should be placed the wires of the various telegraph, telephone, and electric lighting companies, as well as the city fire alarm; and on the 10th of March, 1898, said Southern New England Telephone Company made application to said council for permission to open certain streets in the central part of said city, including Church street, between Main and Elm streets, for the purpose of laying conduits and ducts for its wires, and said application was heard by the committee. Said common council, through its said committee, signified to said telephone company its willingness to consider and adopt, under reasonable regulations, plans relating to said underground wires, and the laying of conduits and ducts for the use of
the wires of said company, and for overhead wires, in said city; but said telephone company...
