
    Consumers’ Gas & Electric Light Co. v. Congress Spring Co. et al.
    
      (Supreme Court, General Term, Third Department.
    
    July 11, 1891.)
    1. Municipal Corporations—Ordinances—Collateral Attack.
    In an action to restrain a property owner from cutting down a pole erected by plaintiff electric light company in the street in front of defendant’s premises, plaintiff alleged that the board of trustees of the village had duly granted to plaintiff the right to set its poles and string its wires in and along the streets of the village. The answer alleged that the grant, if any was made, by the village trustees to-plaintiff of such right “was unauthorized and illegal, and was obtained from the, said board of trustees * * * through fraud, and by means of fraudulent and illegal inducements, and wrongfully; and the same was not a legal or valid consent, grant, right, or franchise, and did not authorize any poles or wires to be placed in said streets. ” Held, that such answer did not state a defense, as the act of a municipality in passing an ordinance cannot be impeached collaterally.
    2. Same—Control of Streets—Right to Erect Electric Poles.
    The right acquired by the public in a street includes the right to erect poles and string wires for electric lights in and along the street.
    Appeal from special term, Saratoga county.
    Action by the Consumers’ Gas & Electric Light Company against the Congress Spring Company and Hiram A. Hays to restrain defendants from removing a pole placed by plaintiff in the street in front of the premises of defendant the Congress Spring Company. The complaint alleged the incorporation of plaintiff for the purpose of supplying electric light, in the village of Saratoga Springs for public and private uses; that the board of trustees of the village, prior to the acts complained of, duly granted to the plaintiff the right and iranchise to set its poles and string its wives in and along the streets of the village, the said board being clothed with all the authority of commissioners of iiighways over the said streets; that the defendant the Congress Spring Company consented that the plaintiff erect a pole on Putnam street, at the place described, opposite and in front of its premises, upon which to string its wires for the purpose of supplying light, as aforesaid, at a point on said street; that plaintiff thereafter erected a pole at such place, and strung wires thereon, for such purpose, as a part of its system of lighting; and that the defendants cut down the pole, and threaten to cut down any other pole which plaintiff may erect at the said point; and plaintiff demands judgment awarding an injunction and damages. The defendants, by their answer, among other things set up this separate defense; “Allege upon information and belief that any consent, grant, right, or franchise by the board of trustees of said village to plaintiff to set poles or string wires in and along the streets or alleys of said village, if any was granted or conferred as alleged, was unauthorized and illegal, and was obtained from said board of trustees and the individuals, or some of them, composing said board of trustees, through fraud, and by means of fraudulent and illegal inducements, and wrongfully; and the same was not a legal or valid consent, grant, right, or franchise, and did not authorize any poles or wires to be placed in’said streets or alleys; and any person assuming to act in relation to the premises thereunder, by placing poles or wires in or through Putnam street, wrongfully entered upon and trespassed upon defendants’ said property, and was a wrongdoer, violating defendants’ rights in its property aforesaid.” The demurrer is upon the ground that such defense is insufficient in law upon the face thereof. The trial court overruled the demurrer, and from the order and judgment thereon plaintiff appeals.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      W. P. Butler, for appellant. D. E. Wing, for respondents.
   Landon, J.

We think the demurrer well taken. The answer does not deny that the board of trustees of the village granted plaintiff consent to erect its poles and string its wires, or allege any fact tending to invalidate such grant of consent, except the allegation that the same was obtained “through fraud, and by means of fraudulent and illegal inducements, and wrongfully.” Passing the question whether this is a sufficient allegation of fact, public policy forbids that the acts of municipal bodies in passing ordinances or administrative regulations should be impeached collaterally. Porter v. Purdy, 29 N. Y. 106. The ordinance of the board of trustees is a legislative act. Duryee v. Mayor, etc., 96 N. Y. 477; Mayor, etc., v. Third Ave. R. Co., 1 N. Y. Supp. 397. The authority to pass it exists in pursuance of the delegation by the legislature to the board of trustees of the village of such local legislative powers as may be suitable to their proper organization, for which the legislature is required to provide, (Const. art. 8, § 9,) and is therefore an exercise of the sovereign power of the state. Whatever powers may exist in the judiciary to vacate such action for fraud and corruption in its exercise, it would, as said by Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 87; “be indecent in the extreme, in a private action between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of the state.” See Baird v. Mayor, etc., 96 N. Y. 567, 581. The validity of the grant of the privilege cannot thus be assailed, and this part of the answer is invalid as a defense. Every other part of the answer demurred to is so dependent upon this part that it falls with it. The defendants contend that, because the license given by thetrustees operates to permit the plaintiff to invade their lands, and thus prejudice their property rights, the defendants should be permitted to allege anything which avoids the license. The contention is based upon a false assumption. The license in question comes from the sovereign power. Sovereign power is limited by constitutional restraints, and the defendants’ protection against the invasion by the sovereign of private rights exists only in such restraints. Private property shall not be taken for public use without compensation. But the property in question has been taken for public use, and presumably compensation was long since made or waived. The legislature may authorize the use of the streets for other purposes than travel, and electric lighting is one of such purposes. Construction Co. v. Heffernan, 12 N. Y. Supp. 336. It thus enlarges the usefulness of the public right. It does not invade any right reserved by the defendant. When the street was first acquired for public use this particular right was acquired, though long unexercised. The license given by the trustees is thus within the public right, and this is merely the first time that it has thus been exercised. Of course, if the exercise of this right, owing to peculiar and special circumstances, should injuriously affect the lot of the defendants, and thus injure property which the public have no right to invade, or should be solely for private purposes, defendants might have a right to protection or compensatian, which the present pleadings do not present. The judgment and order should be reversed, with costs, and the demurrer sustained, with costs. All concur.  