THE POLE AND WIRE EVIL, 187 



railway structure and a telegraph-pole. Both are uses of the street 

 inconsistent with the use of the same as an open public street. Such 

 use in both cases violates the rights of abutting owners to freely use 

 or pass over the street. How, then, has a single post been legally 

 erected, if the owner of the premises, whose rights are violated by the 

 erections in front of his property, has not first received compensation, 

 be it ever so little, awarded him in due form ? It is safe to assume 

 that not one cent has ever been paid by way of such compensation, 

 and, that being the case, such structures must fall under the prohibi- 

 tion of the above principle, and are therefore unlawful. 



But, if, after all, none of the foregoing objections are tenable, is 

 there no way of getting rid of the evil ? If a panacea does not 

 already exist, one suggests itself in legislation. Our State Legislature 

 can relieve us. It has the power to drive the poles and wires from 

 the street, and compel the construction of lines underground. As to 

 wires yet unstrung and poles yet unerected, it may be said this course 

 would be quite proper, but with regard to those already up (assuming 

 that they are legally up) would not such legislation be manifestly un- 

 constitutional, as impairing the obligation of the charter contract 

 which, we will say, authorized their erection ? 



Now, the framers of the Constitution, in declaring against the 

 enactment of laws impairing the obligations of contracts, never in- 

 tended that the Legislature should altogether avoid retrospective action 

 upon the civil relations of parties to existing contracts. No Legisla- 

 ture ever did avoid it, they said, and to require it would be extremely 

 inconvenient.* It has accordingly frequently been held by our courts 

 that the clause in question does not so far remove from State control 

 the rights and properties which depend for their existence or enforce- 

 ment upon contracts as to relieve them from the operation of such 

 general regulations for the good government of the State and the pro- 

 tection of the rights of individuals as may be deemed important, f 

 All enactments are subject to the subsequent exercise by the Legisla- 

 ture of what is known as the police power, which the Legislature can 

 not alienate, if it would, but must reserve to itself in order to avoid 

 embarrassment in the exercise of control over the general welfare. By 

 virtue of this power the Legislature may, for the public welfare, sub- 

 ject persons and property to various restraints and burdens. It may 

 abate nuisances, even if in their origin they may have been permitted 

 or licensed by law. It would be monstrous if it were otherwise. If a 

 charter implies that a corporation may always continue to exercise its 

 rights in the same way in which their exercise was at first permissi- 

 ble, and under the regulations then existing and those only, the public 

 would be helpless when, without anybody's fault, circumstances so 

 change that what was once lawful, proper, and unobjectionable, be- 



* Cooley's " Constitutional Limitations," p. 716. 

 f Curtis's " History," vol. ii, p. 367. 



