impairing con [For other cases, see Appeal and Error, 2240- corporate fran of the tracks" as had already been built, | presenting the question of impairment of and as might be built by the first-mentioned contract obligations, the Federal Supreme company, for a proportionate part of the Court will determine for itself whether a agreed payment. This clause, in view of contract existed and whether its obligation has been impaired. the existing situation of the parties, was held by the state court to have reference to a contingency in which, the opposition of the dock board not having been successful, the railroad company had proceeded with its undertaking, and, having built a part of the tracks, had failed to complete them; and this construction is in harmony with the other provisions of the ordinance. But, in fact, the event described in paragraph (d) did not happen, as no part of the road was built; and this clause in no way aids the contention that the New Orleans & San Francisco Railroad Company was under legal obligation to undertake a partial construction if it became legally impossible to carry out its undertaking as a whole. We conclude that the contract upon which the plaintiff in error relies was subject, in any aspect, to a supensive condition (Civil Code [La.] art. 2021), that the event in which the obligation was to arise did not happen, and hence, that the subsequent enactment was not open to the objection raised. Judgment affirmed. [179] NEW YORK ELECTRIC LINES COMPANY, Plff. in Err., V. EMPIRE CITY SUBWAY COMPANY (Limited). (See S. C. Reporter's ed. 179–196.) decision of Fedimpairing contract 3. The acceptance of a permit granted tive authority to place wires in the city by a municipal corporation under legisla streets creates a contract which cannot thereafter constitutionally be revoked or impaired by municipal resolution or ordinance, unless such franchise is lost by miscases, see Constitutional Law, 1201-1213, in Digest Sup. Ct. 1908.] Constitutional law tract obligations cised franchise. user or nonuser. [For other impairing conrevoking unexer 4. The franchise created by the acceptance of a permit granted by a municipal corporation under the authority of N. Y. ductors in the public streets, may be reLaws 1881, chap. 483, to lay electric convoked for nonexercise, without unconstitutionally impairing any contract obligations, where, for a long period of years after the final judicial determination of the validity and controlling authority of the state legislation authorizing a comprehensive scheme of electrical subway construction, the grantee made no attempt to secure space in these subways, or to build conduits, or to place its wires under the city streets, treating its rights as susceptible of practically indefinite retention unused. [For other cases, see Constitutional Law, 1201-1213, in Digest Sup. Ct. 1908.] [No. 63.] Argued November 5 and 6, 1914. Decided Error to state court eral question obligations. judgment of a state court giving of New York in and for the County N ERROR to the Supreme Court of the effect to a municipal ordinance which, it is contended, is an unconstitutional impairment of a previously existing contract with the city, is reviewable by the Federal Supreme Court on writ of error. [For other cases, see Appeal and Error, 13761392, in Digest Sup. Ct. 1908.] Error to state court scope of review impairing contract obligations. 2. On a writ of error to a state court NOTE. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884; and Kipley v. Illinois, 42 L. ed. U. S. 998. On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513. of New York to review a judgment affirmed by the Appellate Division, First Depart. ment, and by the Court of Appeals, denying a writ of mandamus to compel a subway company to lease space in its conduits to an electric company. Affirmed. See same case below in appellate division, 140 App. Div. 934, 125 N. Y. Supp. On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33. On what the record must show respecting the presentation and decision of a Federal question in order to confer jurisdiction on the Supreme Court of the United States of a writ of error to a state court-see note to Hooker v. Los Angeles, 63 L.R.A. 471. As to what is the record for the purpose of 1133; in court of appeals, 201 N. Y. 321, IN. Y. 119, 70 L.R.A. 773, 74 N. E. 953; LouisL.R.A. 1915, —, 94 N. E. 1056. The facts are stated in the opinion. Messrs. Alton B. Parker and J. Aspinwall Hodge argued the cause, and, with Mr. Henry A. Gildersleeve, filed a brief for plaintiff in error: Relator's permit of 1883, from the city, was and is an irrevocable franchise, contract, and property, not to be impaired by state law, nor taken without due process of law. Louisville v. Cumberland Teleph. & Teleg. Co. 224 U. S. 649, 56 L. ed. 934, 32 Sup. Ct. Rep. 572; Owensboro v. Cumberland Teleph. & Teleg. Co. 230 U. S. 58, 57 L. ed. 1389, 33 Sup. Ct. Rep. 988; Wright v. Nagle, 101 U. S. 791, 25 L. ed. 921; Detroit v. Detroit Citizens' R. Co. 184 U. S. 368, 46 L. ed. 592, 22 Sup. Ct. Rep. 410, 26 L.R.A. 667, 12 C. C. A. 365, 22 Ú. S. App. 570, 64 Fed. 628; Africa v. Knoxville, 70 Fed. 729, 23 C. C. A. 252, 47 U. S. App. 74, 246, 77 Fed. 501; Morristown v. East Tennessee Teleph. Co. 53 C. C. A. 132, 115 Fed. 304; People ex rel. Davis v. Sturtevant, 9 N. Y. 273, 59 Am. Dec. 536; Milhau v. Sharp, 27 N. Y. 611; People v. O'Brien, 111 N. Y. 1, 2 L.R.A. 255, 7 Am. St. Rep. 684, 18 N. E. 692; Suburban Rapid Transit Co. v. New York, 128 N. Y. 510, 28 N. E. 525; People ex rel. New York Edison Co. v. Willcox, 207 N. Y. 86, 45 L.R.A. (N.S.) 629, 100 N. E. 705; People ex rel. Woodhaven Gaslight Co. v. Deehan, 153 N. Y. 528, 47 N. E. 787; Ghee v. Northern Union Gas Co. 158 N. Y. 510, 53 N. E. 692; Southampton v. Jessup, 162 N. Y. 122, 56 N. E. 538; Rochester v. Rochester R. Co. 182 N. Y. 99, 70 L.R.A. 773, 74 N. E. 953; New York v. Bryan, 196 N. Y. 158, 89 N. E. 467. While performance of some substantial part of the work (contemplated by the permission sufficient to create a property right and form a consideration for the contract) was not necessary to create a right of property nor a consideration for the contract, nevertheless there was such performance, and there would have been full performance, but for the acts of the state and city. New York v. Bryan, 196 N. Y. 165, 89 N. E. 467; Rochester v. Rochester R. Co. 182 showing the jurisdiction of the Supreme | Court of the United States of a writ of error to a state court-see note to Home for Incurables v. New York, 63 L.R.A. 329. As to what questions the Federal Supreme Court will consider in reviewing the judgments of state courts-see note to State ex rel. Hill v. Dockery, 63 L.R.A. 571. On error to state courts in cases presenting questions of impairment of contract obligations-see note to Osborne v. Clark, 51 L. ed. U. S. 619. Generally, as to what laws are void as ville v. Cumberland Teleph. & Teleg. Co. 224 U. S. 649, 56 L. ed. 934, 32 Sup. Ct. Rep. 572. It is too late to question the following well-established propositions: (a) It is sufficient if it appears from the that the Federal question must have been record "by clear and necessary intendment" passed upon. Crowell v. Randell, 10 Pet. 368, 398, 9 L. ed. 458, 470; Furman v. Nichol, 8 Wall. 44, 56, 19 L. ed. 370, 375; Roby v. Colehour, 146 U. S. 153, 36 L. ed. 922, 13 Sup. Ct. Rep. 47; Curran v. Arkansas, 15 How. 304, 320, 14 L. ed. 705, 712. (b) It is sufficient if it appears from the opinion of the state court that the Federal question was passed upon, even though that does not appear elsewhere in the record. Murdock v. Memphis, 20 Wall. 590, 22 L. ed. 429; Gross v. United States Mortg. Co. 108 U. S. 477, 27 L. ed. 795, 2 Sup. Ct. Rep. 940; Fire Asso. of Philadelphia v. New York, 119 U. S. 110, 116, 30 L. ed. 342, 345, 7 Sup. Ct. Rep. 108; Walter A. Wood Mowing & Reaping Mach. Co. v. Skinner, 139 U. S. 293, 35 L. ed. 193, 11 Sup. Ct. Rep. 528; Chambers v. Baltimore & O. R. Co. 207 U. S. 142, 148, 52 L. ed. 143, 146, 28 Sup. Ct. Rep. 34. (c) Any doubt may be resolved by a certificate of the state court, signed by its presiding justice, or by the recitals in the remittitur. Assuming that the judgment was affirmed upon the ground stated by relator's counsel, it remains that it is for this court to determine for itself as to the existence and meaning of the alleged contract, in order to determine the question whether the subsequent legislation has impaired the obligations thereof. Capital City Light & Fuel Co. v. Talla. hassee, 186 U. S. 401, 406, 46 L. ed. 1219, 1223, 22 Sup. Ct. Rep. 866; Muhlker v. New York & H. R. Co. 197 U. S. 544, 570, 49 L. ed. 872, 877, 25 Sup. Ct. Rep. 522; Sullivan v. Texas, 207 U. S. 416, 423, 52 L. ed. 274, 277, 28 Sup. Ct. Rep. 215; Douglas v. Ken impairing obligation of contracts-see notes to Franklin County Grammar School v. Bailey, 10 L.R.A. 405; Bullard v. Northern P. R. Co. 11 L.R.A. 246; Henderson v. State Soldiers' & S. Monument Comrs. 13 L.R.A. 169; and Fletcher v. Peck, 3 L. ed. U. S. 162. On privilege of using streets as a contract within the constitutional provisions against impairing the obligation of contracts-see note to Clarksburg Electric Light Co. v. Clarksburg, 50 L.R.A. 142. tucky, 168 U. S. 488, 502, 42 L. ed. 553, 557, | 18 Sup. Ct. Rep. 199. By reversing its own construction of the relator's contract, the state of New York has impaired the obligation of the contract of the relator with the city and state. Sauer v. New York, 206 U. S. 536, 51 L. ed. 1176, 27 Sup. Ct. Rep. 686; Muhlker v. New York & H. R. Co. 197 U. S. 544, 49 L. ed. 872, 25 Sup. Ct. Rep. 522; Gelpcke v. Dubuque, 1 Wall. 175, 17 L. ed. 520; Louisi- | ana v. Pilsbury, 105 U. S. 278, 294, 26 L. ed. 1090, 1095. If there was any forfeiture which the state, and the city, as its agent, could waive, then, we submit, they did so waive it. Peck v. Burr, 10 N. Y. 294; Los Angeles v. Los Angeles City Water Co. 177 U. S. 570, 576, 44 L. ed. 892, 894, 20 Sup. Ct. Rep. 736; Atty. Gen. v. Petersburg & R. R. Co. 28 N. C. (6 Ired. L.) 456; Commercial Electric Light & P. Co. v. Tacoma, 17 Wash. 670, 50 Pac. 592; Rochester & L. O. Water Co. v. Rochester, 176 N. Y. 36, 68 N. E. 117; 2 Cooley, Taxn. p. 1521; 2 Cook, Corp. | § 634; Joyce, Electric Law, § 210; Angell & A. Corp. §§ 776, 777, 803-806; American Emigrant Co. v. Iowa R. Land Co. 52 Iowa, 323, 3 N. W. 88; Audubon Co. v. American Emigrant Co. 40 Iowa, 460; Simplot v. Dubuque, 49 Iowa, 630; Adams County v. Burlington & M. R. Co. 39 Iowa, 507; Brandirff v. Harrison County, 50 Iowa, 164. Mr. Edmund L. Mooney argued the cause, and, with Messrs. Charles T. Russell and Frederick A. Card, filed a brief for defendant in error: Hulbert v. Chicago, 202 U. S. 275, 50 L. ed. 1026, 26 Sup. Ct. Rep. 617. The record must show either expressly or by necessary intendment that the Federal question was raised in the state court. The Victory, 6 Wall. 382, 18 L. ed. 848; New York C. & H. R. R. Co. v. New York, 186 U. S. 269, 46 L. ed. 1158, 22 Sup. Ct. Rep. 916; Winona & St. P. R. Co. v. Plainview, 143 U. S. 371, 36 L. ed. 191, 12 Sup. Ct. Rep. 530. Also that the state court knew or ought to have known that the validity of the state law was challenged as repugnant to the Constitution or the laws of the United States. Endowment Benev. Asso. v. Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. Ct. Rep. 499; Dewey v. Des Moines, 173 U. S. 193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379. Upon the record, it appears that the alleged repugnancy of the revoking resolution to the Constitution of the United States was first raised in the assignment of errors on the application for the writ of error to review the judgment of the court of appeals. That was too late. Johnson v. New York L. Ins. Co. 187 U. S. 491, 47 L. ed. 273, 23 Sup. Ct. Rep. 194; Telluride Power Transmission Co. v. Rio Grande Western R. Co. 187 U. S. 569, 47 L. ed. 307, 23 Sup. Ct. Rep. 178. From the opinion as a whole, and reasonably considered, all that the court did or intended to do, apparently was to determine the scope and validity of the resolution of revocation under the Constitution and laws of the state of New York, and not in reference to the laws or Constitution of the United States. The statement in the moving papers for the mandamus that the resolution of the board of aldermen of 1883 was ir revocable did not necessarily refer to this That the repugnancy of the revoking resolution of the board of estimate to the Constitution of the United States is the only possible Federal question involved is apparent from the fact that its repugnancy to the Con-effect under the Constitution of the United stitution or laws of the state of New York would not raise or present a Federal ques tion. Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 41, 45 L. ed. 415, 21 Sup. Ct. Rep. 256; Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639. Unless the face of the record shows that a Federal question was raised and was necessarily involved, this court will not look into the opinion, but will dismiss the appeal. Moore v. Mississippi, 17 Wall. 636, 22 L. ed. 653; Citizens' Bank v. Board of Liquidation, 98 U. S. 140, 25 L. ed. 114; Otis v. Oregon S. S. Co. 116 U. S. 548, 29 L. ed. 719, 6 Sup. Ct. Rep. 523. In order to be considered by this court, the Federal question must have been raised in the state court before its decision of the cause. States, but that statement, as well as the decision of the court as to its revocability, might and did properly refer to the state law and Constitution. Layton v. Missouri, 187 U. S. 356, 47 L. ed. 214, 23 Sup. Ct. Rep. 137; Seeberger v. McCormick, 175 U. S. 274, 44 L. ed. 161, 20 Sup. Ct. Rep. 128. If it be considered that a Federal question was raised and decided, its decision was not necessary; and, hence, this court has no jurisdiction to review the judgment. Leathe v. Thomas, 207 U. S. 93, 52 L. ed. 118, 28 Sup. Ct. Rep. 30; Castillo v. McConnico, 168 U. S. 674, 42 L. ed. 622, 18 Sup. Ct. Rep. 229; Walter A. Wood Mowing & Reaping Mach. Co. v. Skinner, 139 U. S. 293, 295, 35 L. ed. 193, 194, 11 Sup. Ct. Rep. 528; Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 41, 45 L. ed. 415, 21 Sup. Ct. Rep. 256; Zadig v. Bald- | 193 U. S. 53, 48 L. ed. 614, 24 Sup. Ct. Rep. win, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639. Where the statute provides that a corporation may use the streets of a city upon the consent of the municipal authorities, a consent so granted does not become a contract until the corporation has begun to do the thing required. Capital City Light & Fuel Co. v. Tallahassee, 186 U. S. 401, 46 L. ed. 1219, 22 Sup. Ct. Rep. 866, affirming 42 Fla. 462, 28 So. 810. Such a permission would only become irrevocable provided it were acted upon by the person or corporation to whom it was given. Pearsall v. Great Northern R. Co. 161 U. S. 646, 40 L. ed. 838, 16 Sup. Ct. Rep. 705; City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653; Postal Teleg. Cable Co. v. Baltimore, 156 U. S. 210, 39 L. ed. 399, 15 Sup. Ct. Rep. 356; Galveston City R. Co. v. Galveston City Street R. Co. 63 Tex. 529; Chicago City R. Co. v. People, 73 Ill. 541; St. Louis v. Western U. Teleg. Co. 148 U. S. 92, 103, 37 L. ed. 380, 385, 13 Sup. Ct. Rep. 485; Harshman v. Bates County, 92 U. S. 569, 23 L. ed. 747; 3 Kent, Com. *458; New Orleans Gas light Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep. 252; Los Angeles R. Co. v. Los Angeles, 152 Cal. 242, 15 L.R.A. (N.S.) 1272, 125 Am. St. Rep. 54, 92 Pac. 490, affirmed in 177 | U. S. 558, 44 L. ed. 886, 20 Sup. Ct. Rep. 736. The permission or secondary franchise was lost by nonuser and abandonment. Louisville Trust Co. v. Cincinnati, 22 C. C. A. 334, 47 U. S. App. 36, 76 Fed. 296; Delaware, L. & W. R. Co. v. Oswego, 92 App. Div. 555, 86 N. Y. Supp. 1027. Mr. Alfred B. Cruikshank filed a brief for Clifford L. Middleton as amicus curiæ: The revocation on May 11, 1906, of the aldermanic permit of 1883, by the New York board of estimate and apportionment, cannot be held to be an impairment of any existing contract between the New York Electric Lines Company and the city of New York, because no such contract is established by the record here. Dorsey v. Packwood, 12 How. 126, 13 L ed. 921; De Haro v. United States, 5 Wall. 599, 18 L. ed. 681. | 396; Chrisman v. Miller, 197 U. S. 313, 49 L. ed. 770, 25 Sup. Ct. Rep. 468; Hedrick v. Atchison, T. & S. F. R. Co. 167 U. S. 673, 42 L. ed. 320, 17 Sup. Ct. Rep. 922; Gardner v. Bonestell, 180 U. S. 362, 45 L. ed. 574, 21 Sup. Ct. Rep. 399; Chapman & D. Land Co. v. Bigelow, 206 U. S. 41, 51 L. ed. 953, 27 Sup. Ct. Rep. 679. But, assuming that such a contract as is claimed here had been in fact made between the city of New York and the plaintiff in error, and broken by the city, the remedy, under the circumstances, would be for money damages only; it certainly would not be mandamus against the subway company. Memphis v. Brown, 20 Wall. 289, 22 L. ed. 264. At no time since the permit was granted could plaintiff have maintained a suit against the city for specific performance of its alleged rights to lay wires in the streets of New York. Such a suit would have been dismissed on the ground that the remedy, if any, was at law for damages on the grounds above stated. And if so, therefore, a fortiori, mandamus will surely not lie against this private corporation for the same object. Such a suit would also have been dismissed if brought in 1910, when this proceeding was instituted, on the ground of the gross laches of the plaintiff in error in bringing the same, and because of the change in circumstances since its right, if any, accrued. Dorsey v. Packwood, 12 How. 126, 13 L. ed. 921; United States v. Noe, 23 How. 312, 16 L. ed. 462; Rutland Marble Co. v. Ripley, 10 Wall. 339, 19 L. ed. 955, 3 Mor. Min. Rep 291. The writ of mandamus is not an appropriate remedy in this case. The writ of mandamus is even farther than a suit for specific edy for the breach of contract alleged by performance from being an appropriate remnot lie where the party aggrieved has anplaintiff in error here. Mandamus also does other adequate remedy. United States) 9 Wall. 298, 19 L. ed. 579; The Secretary v. McGarrahan (Cox v. Ex parte Virginia Comrs. (Ex parte Barksdale) 112 U. S. 177, 28 L. ed. 691, 5 Sup. Ct. Rep. 421. And the writ is only granted where the right is clearly established and the duty peremptory. United States ex rel. International Con L. ed. 160, 15 Sup. Ct. Rep. 97. Grants of public franchises are to be interpreted most strongly against the grantee and in favor of the grantor. The proposition that this court will extracting Co. v. Lamont, 155 U. S. 303, 39 amine for itself the question whether there was in fact a contract which has been impaired by state legislation is modified by the rule which forbids this court to examine disputed questions of fact in the first instance. Minneapolis & St. L. R. Co. v. Minnesota, Cleveland Electric R. Co. v. Cleveland, 204 U. S. 116, 129, 51 L. ed. 399, 405, 27 Sup. Ct. Rep. 202; Stein v. Bienville Water Sup- | Minneapolis, St. P. & S. Ste. M. R. Co. v. ply Co. 141 U. S. 67, 35 L. ed. 622, 11 Sup. Marble, 112 Mich. 4, 70 N. W. 319; Taylor Ct. Rep. 892; Cornell v. Coyne, 192 U. S. v. Gerrish, 59 N. H. 569. 418, 48 L. ed. 504, 24 Sup. Ct. Rep. 383; The relator, Lines Company, tacitly and Pennsylvania R. Co. v. Canal Comrs. 21 Pa.openly acquiesced in the virtual annulment 9; Syracuse Water Co. v. Syracuse, 116 N. by the governmental establishment of the Y. 167, 5 L.R.A. 546, 22 N. E. 381; Joyce, subway system in 1886 of any claim it might Franchises, § 254. otherwise have had to lay or operate telephonic wires in the city subways. The city and state authorities having by the governmental establishment of the subway system in 1885 and 1886 assumed to annul or revoke all outstanding permits for laying wires, such action became binding on the plaintiff in error long before 1910, when it began this proceeding, because of its failure to protest and its apparent acquiescence. The license became extinct after being dormant for more than a reasonable time. This permit was not in its terms or in its nature eternal. No time was fixed for performance, but, in the nature of things, like any other license, it was intended to be performed within a reasonable time. Gilmore v. Wilbur, 12 Pick. 120, 22 Am. Dec. 410; Hill v. Hill, 113 Mass. 103, 18 Am. Rep. 455; Parsons v. Camp, 11 Conn. 529. That the licensee may abandon the license by neglect to avail himself of it is well settled. Curtiss v. Hoyt, 19 Conn. 169, 48 Am. Rep. 149. By acting for over twenty years as though it had no claim of a franchise to lay wires in the subways the Lines Company abandoned such claim. Cumberland Teleph. & Teleg. Co. v. Evansville, 74 C. C. A. 368, 143 Fed. 238. Disuse of a franchise or an easement for a long period constitutes an abandonment thereof. Henderson v. Central Pass. R. Co. 21 Fed. 358; Louisville Trust Co. v. Cincinnati, 22 C. C. A. 334, 47 U. S. App. 36, 76 Fed. 296; Corning v. Gould, 16 Wend. 531; People ex rel. Nelson v. Marsh, 82 App. Div. 571, 81 N. Y. Supp. 579, affirmed in 178 N. Y. 618, 70 N. E. 1107. A license, whether granted by writing or by parol, may be revoked at any time without formal notice to the licensee, by the doing of any act by the licensor evidencing an election to revoke the license. Gregg v. Von Phul, 1 Wall. 274, 17 L. ed. 536. This whole controversy was passed upon in this court and in the New York state courts long prior to this proceeding, and decisions were rendered adverse to the New York Electric Lines Company both in New York ex rel. New York Electric Lines Co. v. Squire, 145 U. S. 175, 36 L. ed. 666, 12 Sup. Ct. Rep. 880, and in People ex rel. New York Electric Lines Co. v. Ellison, 188 N. Y. 523, 81 N. E. 447. See also, Griffin v. Long Island R. Co. 102 N. Y. 449, 55 Am. Rep. 824, 7 N. E. 735: Lorillard v. Clyde, 122 N. Y. 41, 19 Am. St. Rep. 470, 25 N. E. 292; Stockton v. Ford, 18 How. 418, 15 L. ed. 395; Washington, A. & G. Steam Packet Co. v. Sickles, 24 How. 333, 16 L. ed. 650; Beloit v. Morgan, 7 Wall. 619, 19 L. ed. 205; Dowell v. Applegate, 152 U. S. 327, 38 L. ed. 463, 14 Sup. Ct. Rep. 611. The questions attempted to be raised upon this writ of error were not necessarily controlling in the state courts, and the decision may have gone against the plaintiff in error on other questions besides the Federal question which it attempts to present here. Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635. Mr. Justice Hughes delivered the opinion of the court: This is a writ of error to review the denial by the state court of an application for a writ of peremptory mandamus directing the Empire City Subway Company (Limited) to lease space in its conduits in the city of New York to the plaintiff in error. Hyde v. Graham, 1 Hurlst. & C. 593, 32 L. J. Exch. N. S. 27, 8 Jur. N. S. 1229, 7 L. T. N. S. 563, 11 Week. Rep. 119; Coleman v. Foster, 1 Hurlst. & N. 37, 4 Week. Rep. 489; Wood v. Ledbitter, 13 Mees. & W. 838, 14 L. J. Exch. N. S. 161, 16 Eng. Rul. Cas. 49; Eckert v. Peters, 55 N. J. Eq. 379, 36 Atl. 491; Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479; Jackson ex dem. Hull v. Babcock, 4 Johns. 418; Cronkhite v. Cronkhite, 94 N. Y. 323; Johnson v. Skillman, 29 Minn. 95, 43 Am. Rep. 192, 12 N. W. 149; Prince v. Case, 10 Conn. 375, 27 Am. Dec. 675; Wilson v. St. Paul, M. & M. R. Co. 41 Minn. 56, 4 L.R.A. 378, 42 N. W. 600; Kamphouse v. Gaffner, 73 Ill. 453, 2-should be placed under the surface of Mor. Min. Rep. 257; Eggleston v. New York & H. R. Co. 35 Barb. 162; Bruley v. Garvin, 105 Wis. 625, 48 L.R.A. 839, 81 N. W. 1038; In the year 1884, the legislature of the state of New York required that "all telegraph, telephonic, and electric light wires" in certain cities-New York and Brooklyn the streets (Laws of 1884, chap. 534). Under the authority of a statute passed in the next year (Laws of 1885, chap. 499, |