This is a bill in equity, filed on June 21, 1904, to restrain the enforcement of an ordinance of September 10, 1895, codified as chapter 88 of the ordinances of Richmond, and amended March 15, 1902, and December 18, 1903. The plaintiff alleges that the ordinance infringes its rights under the act of July 24, 1866, chap. 230, 14 Stat. at L. 221 (Rev. Stat. §§ 5263 et seq., U.S.C.omp. Stat. 1901, p. 3579), and under article 1, § 8 (the commerce clause), and the 14th Amendment of the Constitution of the United States. The circuit court dismissed the bill (178 Fed. 310), and the plaintiff appealed. The act of Congress gives to telegraph companies that accept its provisions the right to construct, maintain, and operate lines over the post roads of the United States, such as the streets of Richmond concerned are admitted to be. Rev. Stat. § 3964, act of March 1, 1884, chap. 9, 23 Stat. at L. 3, U.S.C.omp. Stat. 1901, p. 2707. Some of the objections to the ordinance are based upon this statute and some are not; we take them as they come.
By § 1 poles and wires are not to be put up 'until the city engineer shall have first determined the size, quality, character, number, location, condition, appearance, and manner of erection of' the same. By § 4 the committee on streets may require permission to be given to others to place upon the poles light current wires which, in the Committee's opinion, will not unreasonably interfere with the owners' business; terms, if not agreed upon, to be submitted to arbitration. By § 15 the chief of the fire department and the superintendent of fire alarm and police telegraph are to inspect poles and wires, and if a pole is unsafe, or the attachments or insulations, etc., are unsuitable or unsafe, are to require them to be altered or replaced and removed, with a fine for each day's failure to obey the order. By § 26 violation of any provision, or failure to obey any requirement made under the ordinance by the city engineer or the just-named superintendent or chief, if not specially fined, is to be fined from ten to five hundred dollars a day, by the police justice. Finally, by § 28, as amended in 1903, all overhead wires within a certain territory are to be removed, and within two months plans for conduits are to be submitted to the committee on streets and Shockoe creek, showing location, plan, size, construction, and material. These plans may be altered or amended by the committee, and when satisfactory to it are to be followed by the owner of the wires in a manner satisfactory to the city engineer. The pavements are to be replaced and kept in repair to his satisfaction and the city saved harmless from damages. The conduits are to provide for an increase of 30 per cent, not to be occupied by third parties without consent of the committee and compensation, but the wires of the city to be carried free, one duct being reserved for them. The location, size, shape, and subdivision of the conduits, the material and manner of construction, must be satisfactory to the city engineer, and the work of laying underground conduits is to be under the direction and to the satisfaction of the superintendent of fire alarm and police telegraph.