comes a public nuisance, endangering the public health or the public safety. As circumstances change, regulations affecting the exercise of a franchise may be changed, too. "It can not be," said the Court in one case, "that the mere form of the grant should prevent the use to which it is limited being regarded and treated as a nuisance when it becomes so in fact."[1] In that case, as in many others, the exercise of the police power was held constitutional, even though it directly violated rights theretofore given. By this power the removal of mill-dams once lawfully erected has been compelled, and railroads have been obliged to adopt devices for safety not prescribed in their original charters, even though it caused expense. That is not a matter to be considered when a question of public safety is concerned. Then why should this power not be resorted to in the case of telegraphic and electrical obstructions? Are they exceptions to the rule that when under changed circumstances lawful erections become nuisances they may be abated? We think not. The police power ought to be exercised. Legislation, by virtue of it, driving the wires underground and the poles from sight, would, we submit, be in every respect constitutional and proper.
Such legislation might take the form of direct enactments against the evil, or of a delegation of authority to act in the matter to municipalities. While the police power can not be alienated, it may be delegated to a municipality; for one of the objects of the creation of municipalities is to exercise certain powers of the State in localities. In New York city, it may be that, in the right to regulate the use of streets for poles, the local legislative body has been already clothed with this power sufficiently to meet the evil. Be that as it may, the point remains the same, that the evil is to be met by legislation. Whether by the principal directly, or indirectly by its agent, matters not, so far as its propriety or constitutionality is concerned.
If we are right in our conclusions in this article, why should the evil be allowed longer to exist? Is the corporate power greater than the influence of public opinion? Or, if so, shall public opinion be left unsupported by concerted action? As in politics, or almost any other sphere of action where many are concerned, so, in the suppression of this evil, much depends upon the part taken and the activity displayed by the individual. Those who put forth no exertion to save their rights and tranquilly sleep on them need not be surprised if their rights are trampled upon.
- ↑ Cowen (N.Y.), 605.
