I concur in the result reached by Brother Kruse in this case, but think we should place our decision upon the broader proposition that where the Legislature grants a franchise to a telephone company, as we will assume was done in this case, to construct, maintain and operate its system in and through a municipality, but where, by such franchise of the State, authority is reserved to the municipality to “regulate and control the erection, construction, laying, stringing, maintaining and removing of all wires, cables, poles, conduits and subways, upon, over and under the streets, avenues, lanes, squares, parks, bridges, aqueducts and public places within said city,” such reserved authority entitles the municipality to prescribe the rates which may be charged to the individual residents of such municipality for telephone service, as a consideration for the regulation which it may make.
Concededly, under the power reserved to the city of Rochester, it was competent for it to say that the poles and wrires of the plaintiff should be erected and strung upon certain streets of said city rather than upon other of its streets which might be more desirable and advantageous to the plaintiff in the construction of its system. The municipality had a right to require in certain contingencies that the wires of the plaintiff should be conducted through conduits rather than over the surface of the streets. Presumably to give greater facilities and advantages to the plaintiff corporation, such municipality permitted it to select the streets which it should occupy and determined the manner of occupation, but on the condition that the citizens of the municipality should be entitled to have telephone service at a maximum rate of forty-eight dollars per year. An illustration which would seem to settle the principle involved must present itself to any one: the State grants a franchise to a telephone company to erect, maintain and operate its system in the city of Rochester, but reserves to such city the right to dictate how and in what manner such franchise shall be exercised. The company, conceiving it to be most advantageous to it, desires to erect its poles and string its wires on Main street for its entire length. The municipality contends that that is unnecessary ; that such demand imposes upon such street an unnecessary burden, and insists that the telephone corporation must go upon a parallel street and supply Main *85street from its main lines thus located; but by agreement it was consented that if the telephone company would furnish telephone . facilities to the people of Rochester at a certain price, the municipality would forego its objection to the obstruction of Main street with the poles and wires of the telephone company. Concededly, it would have been entirely competent for the city of Rochester to have said to the telephone company, “ You must not erect poles or string wires in Main street. You may thus erect your poles and string your wires in other streets of the city.” It does not seem to me possible that it can be said that when the telephone company asked in its agreement that the right should be given to it to erect its poles and string its wires in certain streets rather than in other streets and agreed in consideration therefor to serve the citizens of the city of Rochester for a certain sum, it should now be heard to say, “We accept the option given to ns but repudiate the consideration which we agreed to pay .therefor.” To illustrate again: Suppose thgt a telephone company asked permission to set its poles and string its wires on Main street in the city of Rochester. The common council, in answer to such proposition, inquires what the cost of the telephone service is to be to the people. The answer of the telephone company is, “ It is none of your business. We have a franchise from the State to go through your city and without your permission.” But it is answered, “Under the laws of the State the city of Rochester has the right to regulate and control. We, therefore, say that you shall not go through this street at all; you must go through some other street less advantageous to you, unless you agree to serve the people of the city at a certain rate per telephone.” The telephone company assents. The franchise is granted pursuant to the agreement thus made. Can it be said that the telephone company may take advantage of a concession thus made by the common council or by the municipality and repudiate the consideration for such concession, to wit, the maximum rate to be charged by it %
My notion is that it ought to be held that where a telephone company agrees with full knowledge of all the facts that it will serve the inhabitants at a certain price per telephone, in' consideration of the regulations imposed by such municipality in answer to the telephone company’s request, such undertaking by the telephone com-*86party to charge such maximum rate is binding and enforcible upon such company at the instance of any citizen or taxpayer of ■ the municipality.
Judgment directed adjudging that the defendant is entitled to telephone service at the rate of forty-eight dollars per annum, as limited in the agreement of April 14, 1899, and that the plaintiff is entitled to recover of the defendant for the quarter services now due only the sum of twelve dollars, without costs to either party.