The opinion
Haight, J.
I concur in the result reached by Chase, J. The relator was incorporated in 1882 “ for the purpose of owning, constructing, using, maintaining and leasing lines of
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telegraph wires or other electric conductors for telegraphic or telephonic communication, and for electric illumination, to he placed under the pavements of the streets, avenues and public highways of the city of Mew York.” In April, 1883, the board of aldermen passed a resolution permitting it to lay its wires or other conductors of electricity through the streets of the city under ground, upon the condition that the work should be performed under the control and supervision of the commissioner of public works.
In 1885, before the relator had undertaken the laying of its conductors under ground, the legislature, by chapter 499, created a board of electrical subways, to whom was given the • control of all electrical wires and cables to be used in the streets of the city, empowering the board to devise and adopt a plan by which electric wires and conductors could be placed under ground, and authorizing their use when and where needed for the convenience of the public. Thereupon a plan was devised and adopted by the commissioners which, in substance, called for the construction of conduits under the streets of the city through which electric wires and conductors,could be run and used by those entitled, upon the payment of a reasonable rental, and a contract was entered into with another corporation to construct such conduits, and upon the completion thereof, all companies intending to operate electrical conductors, were required to place them through such conduits and remove their wires from the streets. Subsequently, by chapter 716 of the Laws of 1887, such contract was ratified and confirmed, and thereafter it was made unlawful for any corporation or individual to take up the pavement of the streets of the city, or to excavate therein for the purpose of laying under ground any electrical conductors unless by a permit, in writing, of the board of commissioners of electrical subways.
In July, 1886, the relator applied to the department of public works for permission to open the streets of the city, for the purpose of laying its wires and conductors. This permission was refused, and thereupon a peremptory writ of mandamus was applied for, to compel the commissioner to
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grant such permit. This was denied by the court. The relator has now applied to the commissioner of water supply, gas and electricity, who, by a subsequent statute, has become charged with the duties that devolved upon the commissioners of electrical subways, for such leave, and has again been refused. It now socks by mandamus to compel the granting of such permission.
While the former proceeding may not be a bar to the proceeding now instituted, it appears to me that the reasons given for the decision made in the former case are controlling upon the questions now presented. That case ivas reviewed not only by this court, but by the Supreme Court of the United States, in which it was distinctly held that the provisions of the acts of 1885 and 1887, under which a plan was adopted for an electrical underground subway under the control of the commissioners, was a proper police regulation which the legislature had the power to provide, and that those acts applied to and were binding upon the relator.
(People ex rel. N. Y. Elec. Lines Co.
v. Squire, 1 N. Y. S. R. 363 ;6 N.Y. S. R. 281; 107 N. Y. 593 ; 115 U. S. 175 .)
It consequently follows that the relator must comply with the provisions of those statutes, and with the plans adopted for the placing of electrical conductors under ground and that the courts will not, by mandamus, interfere with the judgment and discretion of the commissioner, who, under the statute, is given the power to determine whether such a permit as is here prayed for should be granted.
The order should be affirmed, with costs.
Edward T. Bartlett and Vann, JJ., concur with Chase, J.; Haight, J., concurs in result in opinion, and Werner, J., concurs in result; Cullen, Ch. J., and Gray, J., take no part.
Order affirmed.