
    The Consumers’ Gas & Electric Light Co., App’lt, v. The Congress Spring Co. and Hiram W. Hays, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    1. Municipal cobpobations—Obdinances.
    The acts of municipal bodies in passing ordinances or administrative regulations cannot be impeached collaterally.
    3. Same—Pleading.
    In an action to restrain defendants from cutting down an electric light pole erected in pursuance of permission granted by the village authorities, the answer alleged that the grant, if any was made, was unauthorized and illegal, and was obtained from the trustees through fraud and by means of fraudulent and illegal inducements and wrongfully, and the same was not a legal or valid consent, and did not authorize any poles or wires to be placed in the streets. Held, that the validity of the grant of the privilege could not be thus assailed, and this part of the answer was invalid as a defense.
    3, Same—Streets—Electric liqht poles.
    The taking of land for public use as a street includes also the right to use it for electric lighting.
    Appeal from an order of the special term overruling plaintiff’s demurrer to defendants’ answer and from the judgment entered thereon.
    The complaint alleges 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 franchise to set its poles and string its wires in and along the streets of the village, the said board being clothed with all- the authority of commissioners of highways 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 aforesáid.”
    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 this appeal is taken.
    
      W. P. Butler, for app’lt; D. E. Wing, for resp’ts.
   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, 96 N. Y., 477; Mayor v. Third Ave. R. R. Co., 16 N. Y. State Rep., 122. 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 Oh. J. 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, 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 the trustees 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. Electric Construction Co. v. Heffernan, 34 N.Y. State Rep., 436.

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 compensation which the present pleadings do not present

The judgment and order should be reversed; with costs, and the demurrer sustained, with costs.

Learned. P. J., and Mayham, J., concur.  