Opinion of the Court.

There is much force in the third assignment, that the court erred in overruling plaintiffs' motion to increase the damages, and in refusing to give a decree for such increase. The master finds that for some years before the defendant began to manufacture, he was the travelling sales agent of the plaintiffs; that while so associated in the manufacture of carriage hardware and appliances, they established a large trade in certain parts of the country; and that during this period, the defendant, while travelling for the firm, became acquainted with their trade, and the location, extent of purchase and solvency of their customers. His connection with the firm having terminated, defendant went to Cleveland, and in 1882 opened a rival establishment, and began the infringement of these patents. Before that time, plaintiffs were the exclusive manufacturers of these equalizers, and had equipped their establishment with sufficient machinery to enable them to supply the market; but they neither issued licenses nor established a royalty for the manufacture or use of their improvement. The defendant, knowing all their customers and plaintiffs' facilities for the manufacture of equalizers, made serious inroads upon their business, and sold almost exclusively to those who had formerly been customers of the plaintiffs. Under these circumstances, we should not have disturbed the decree of the court below, if it had seen fit to increase the damages; but in view of the fact that the defendant carried on the business apparently without profit to himself, and that a decree passed against him for the sum of $8480.51 actual damages, we are not inclined to reverse it upon that ground. The allowance of an increase of damages under the statute is a matter which rests somewhat in the discretion of the court, and we should not be inclined to disturb its.finding upon this point, unless the evidence clearly-demanded it.

The decree of the court below is, therefore,

Affirmed.

Statement of the Case.

PEOPLE OF THE STATE OF NEW YORK ex rel. NEW YORK ELECTRIC LINES COMPANY v. SQUIRE.

ERROR TO THE COURT OF COMMON PLEAS OF THE CITY AND COUNTY OF NEW YORK.

No. 185. Argued March 3, 4, 1892. - Decided May 2, 1892.

The statute of June 13, 1885, of the State of New York (Sess. Laws 1885, c. 499) requiring companies operating or intending to operate electrical conductors in any city in the State to file with the Board of Commissioners of Electrical Subways maps and plans before constructing the conduits, and the statute of that State of May 29, 1886, (Sess. Laws 1886, c. 503) assessing the salaries and expenses of such board upon the several companies operating electrical conductors in any city in the State, are a constitutional exercise of the general police powers of the State, and are applicable to the New York Electric Lines Company which, before the passage of either of said acts, was incorporated under the laws of New York, and had obtained from the municipal government of the city of New York permission to lay its conductors in and through the streets and highways of the city, and had filed a map, diagram, and tabular statement indicating the amount, position and localities of the spaces it proposed to occupy in and under the streets. The said law of 1885 simply transferred the reserved police power of the State from one set of functionaries to another and required the company to submit its plans and specifications to the latter, who would determine whether they were in accordance with the terms of the ordinances giving it the right to enter and dig up the streets of the city; and, being so construed, it violates no contract rights of the company which might grow out of the permission granted by the municipality. The said act of 1886 comes within the principles settled in Charlotte &c. Railroad v. Gibbes, 142 U. S. 386, and is not in conflict with the provision in the Fourteenth Amendment that no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

THE Court stated the case as follows:

This was an application for a writ of mandamus on behalf of the New York Electric Lines Company, a New York corpora tion, to compel the commissioner of public works of New York City to give it written permission to make excavations and

Statement of the Case.

open up the streets and pavements of the city for the purpose of laying its wires and other conductors of electricity underground, and of making its underground electrical connections, in accordance, it was claimed, with its franchise for such purposes, theretofore obtained from the city.

The application was presented to the Court of Common Pleas for the city and county of New York, at a special term, and was denied, on the ground that the relator had not obtained the approval of the commissioners of electrical subways for that city and county, of the plans and specifications proposed by it for the construction of its underground electrical system. Upon appeal to the court in general term the order denying the application was affirmed, (14 Daly, 154, 166,) and the relator thereupon appealed to the Court of Appeals of the State, which affirmed the judgment below. 107 N. Y. 593. The record having been remitted to the Court of Common Pleas, and the judgment of the Court of Appeals having been there entered, as its judgment, this writ of error was sued out.

The case as presented by the petition for mandamus and its accompanying exhibits is substantially this: The relator was incorporated on the 14th of October, 1882, under the general telegraph law of April 12, 1848, (Laws of 1848, c. 265,) and the various acts amendatory thereof and supplementary thereto, "for the purpose," as stated in its certificate of incorporation, "of owning, constructing, using, maintaining and leasing lines of telegraph wires or other electric conductors for telegraphic and telephonic communication, and for electric illumination, to be placed under the pavements of the streets, avenues, and public highways of the cities of New York and Brooklyn in the State of New York, and under the sidewalks of the streets and avenues of the said cities, and upon, over or under private lands in the said cities, within blocks of buildings erected or to be erected therein, and for the purpose of owning franchises for laying and operating the said lines of electric conductors, and the purchasing, owning and disposing of such real estate within the said cities, and such personal property as may from time to time be necessary and

Statement of the Case.

convenient to the building, using, maintaining and leasing the said lines of electric conductors."

By section 5 of the original act of 1848, telegraph companies were authorized to construct their lines "along and upon any of the public roads and highways, or across any of the waters within the limits of the State," "provided the same shall not be so constructed as to incommode the public use of said roads or highways, or injuriously interrupt the navigation of said waters."

By § 2 of the amendatory act of June 29, 1853, Laws 1853, c. 471, the privilege was extended to such companies of erecting or constructing their lines "upon, over or under any of the public roads, streets and highways, and through, across, or under any of the waters," of the State, subject to the same restrictions contained in the act of 1848.

By § 1 of the act of June 10, 1881, Laws 1881, c. 483, amendatory of the preceding acts on this subject, it was provided as follows: "1. Any company or companies organized and incorporated under the laws of this State for the purpose of owning, constructing, using and maintaining a line or lines of electric telegraph within this State, or partly within and partly beyond the limits of this State, are hereby authorized, from time to time, to construct and lay lines of electrical conductors underground in any city, village, or town within the limits of this State, subject to all the provisions of law in reference to such companies not inconsistent with this act: provided, that such company shall, before laying any such line in any city, village or town of this State, first obtain from the common council of cities, the trustees of villages, or the commissioners of highways of towns permission to use the streets within such city, village or town for the purposes herein set forth."

The foregoing embraces the material parts of the statute law of New York relating to telegraph companies, in force when the relator was organized.

Within a few months after the relator was incorporated, to wit, April 10, 1883, the board of aldermen of the city of New York adopted resolutions giving to the relator permission to

VOL. CXLV-12

Statement of the Case.

lay its wires underground through the city, in accordance with certain restrictions and upon conditions particularly specified. The material portions of these resolutions were as follows:

"Resolved, That permission be and hereby is granted to the New York Electric Lines Company to lay wires or other conductors of electricity in and through the streets, avenues and highways of New York City, and to make connections of such wires or conductors underground by means of the necessary vaults, test-boxes and distributing conduits, and thence above ground, with points of electric illumination or of telegraphic or telephonic signal, in accordance with the provisions of an 'ordinance to regulate the laying of subterranean telegraph wires and electric conductors in the streets of the city,' passed by the common council and approved by the mayor, December 14, 1878; provided, however, and it is hereby ordained and

"Resolved, That whenever the said New York Electric Lines Company, in the progress of laying its lines of electric conductors, shall be prevented or obstructed from placing its wires in the spaces which may have been generally selected under the ordinance, passed and approved as aforesaid, by manholes of sewer, gas, steam or water mains, or other underground or pavement impediments, now and heretofore existing, then, and in such cases, the said company may, under the privileges hereby granted, vary the space selected, by adopting, appropriating and using equivalent and nearest practicable spaces as may be found necessary; and provided further, and it is hereby further

"Resolved and ordained, That the connection vaults or test-boxes aforementioned, may be extended underground not more than four feet in depth or two feet in any lateral direction beyond the limited spaces contemplated for the lines of wires, in the ordinance passed and approved as aforesaid and may be fitted with covers, or other means of access, at the level of the pavements of the several streets and avenues."

Then follow several paragraphs of the ordinance relating to the compensation to be paid by the relator for the franchise thus given to it.