While concurring in the conclusion arrived at by the presiding justice, and also in what he has so forcibly said, there are one or two additional considerations which it may, perhaps, not be unprofitable to place upon record. We start with the constitutionality of the act of 1885, deliberately settled by the court of appeals: Squire's Case, 107 N. Y. 593,14 N. E. Rep. 820. A careful comparison of that act with the act of 1887 shows no such divergence in the latter enactment as to render its constitutionality •doubtful. This has been affirmed in several cases, (Illuminating Co. v. Hess, 3 N. Y. Supp. 777; and see Telegraph Co. v. Mayor, 38 Fed. Rep. 552; and Electric Light Co. v. Grant, MS. opinion, Ingraham, J.;) and it cannot be. doubted that if the act of 1887 had been before the court of appeals it would have received the same treatment as the act of 1885; for the principles enunciated by Buger, O. J., in the Squire Case, supra, are directly applicable to the provisions of the later enactment. It is true that a literal and strained construction of section 4 of the act of 1887 might subject some of its provisions to constitutional objection. The plaintiffs have undoubtedly acquired property rights and franchises of which they cannot be deprived without just compensation. They are duly incorporated, under legislative sanction. They have obtained the consent of the local authorities to their corporate use of the streets, and they have obtained this pursuant to legislative direction. Upon the faith of this authorization from the law-making power, they have expended large sums of money, and otherwise acted upon the legislative license. From this condition of things, two propositions flow: First, the license having been acted upon, and something done by the licensee in consideration thereof, it has become invested with the qualities of a contract; second, such of the companies’ operations as may reasonably be said to have been contemplated by the legislature cannot be deemed a nuisance. So far as the public is concerned, the legislative power, within its constitutional limits, is substantially omnipotent. A proper construction of this fourth section, therefore, calls for the clear recognition of the cardinal considerations—First, that there can be no implication of a legislative intention to deprive the plaintiffs of their vested rights; second, and, on the other hand, that there can be no implication of any such intention to authorize an inherent nuisance,—not merely something which, but for legislative sanction, would constitute an illegal structure in the highway, but something essentially malum in sé. Thus viewed, there is little difficulty in giving this section a reasonable and *797harmonious interpretation, just to the companies and not inimical to the public welfare. The companies are not organized under these later acts, which, indeed, have no relation to such corporate organization, but under an act passed at a time when the present methods of applying the electric principle-were not in vogue, and were probably not even dreamed of. Laws 1848,. c. 37. The acknowledged nuisance of non-insulated wires, seemingly unavoidable at times in these modern systems, was not then contemplated, much less authorized; nor was any particular method of applying the electric prinpie referred to in either of the amendatory acts. Laws 1879, c. 512; Laws-1882, c. 73. We have been referred to no statute expressly authorizing the present methods of electric application for street-illuminating purposes. On. the contrary, the acts passed in and since 1884 indicate a legislative awakening to the fact that advantage was being taken of harmless general laws to-incorporate for dangerous uses; and every one of these acts (1884,1885,1886, and 1887) speaks loudly of a growing disposition on the part of the legislature-to check the evil of such dangerous uses. The purpose of the act of 1887 was largely to reaffirm the previous determination, that all these dangerous appliances should be placed under ground, and, finally, to complete its execution. Until the subways were ready for their occupation, the companies were permitted to proceed with the business for which they were organized, by means of the existing over-ground fixtures and apparatus. To maintain, until the-completion of the subways, such existing fixtures, apparatus, and wires as-were really safe and as were covered by due previous authorization, these-companies were not bound to procure a fresh permit from the new board of' electrical control. But they could not supplement such fixtures, apparatus, or wires, nor otherwise add to their existing systems, without such a permit.. Nor could they continue even their existing systems, at any point where,, owing to non-insulation or defective apparatus, their wires had or might become dangerous to the community; at least, until the apparatus had been rendered perfectly safe for the conduct of this intense electric agent. To that, extent, and for the purpose in general of securing the public safety pending the construction of the subways, the legislature conferred upon this board the-power of granting or refusing permits. This power must, of course, be exercised reasonably; but, subject to this rule of reason, and especially in view of the general purpose referred to, it is necessarily continuous, and it involves, the authority from time to time to revoke such permits, when public safety imperatively demands some modification of the deadly force or more perfect, insulation or other safeguards. It is clear to my mind that in these particulars there is in this act of 1887 a valid exercise of the police power, and a valid delegation of such power to the board, and such is the true construction, of the meaning and intent of the fourth section of that act.
If, then, the plaintiffs’ entire systems are necessarily and unavoidably dangerous to human life, as matter of fact, they can be restrained or abated by appropriate proceedings; for, so far as their mode of using electricity is thus, dangerous to human life, it is without legislative authority, express or implied, and the systems, under such use, become nuisances. But the entire-structure cannot be summarily destroyed, if the particular nuisance can be otherwise restrained or abated. Where the offense consists in the wrongful use of what is harmless in itself, the remedy is to stop such use, not to tear down or remove the structure. Moody v. Board, 46 Barb. 665, 666, citing Barclay v. Com., 25 Pa. St. 503. If the entire system becomes, as a conclusive and openly apparent fact, so flagrantly and imminently dangerous to human life as to come within the principles governing conflagrations and pestilence, the corporate authorities can doubtless summarily abate it. If, however, the systems are not necessarily and unavoidably dangerous to human life; if they can be kept in a safe condition by active vigilance and proper repairs,—they are permitted to continue until the subways are ready for their *798reception. In that case, however, while the entire system may not be a nuisance, each part of it which is suffered to become dangerous is a nuisance, and, as one of the learned counsel for the plaintiffs justly and candidly conceded upon the argument, “a nuisance of the highest kind.”
At this point we come to the practical question raised upon the motion below. Here let me say that my difference is not with Mr. Justice Andrews’ opinion in the main, but with his order. That opinion is a careful, exhaustive, and generally accurate statement of the facts and the law. Indeed, I cannot see that we reach this point by different roads. The learned judge concludes that non-insulated wires are nuisances, and that they should be promptly abated. But he thinks that before abatement by the public authorities the companies should have notice, and a reasonable opportunity to repair; and that an injunction, upon the facts before him, should issue to restrain a summary abatement of the nuisance or nuisances until the person attempting such abatement has given the companies this notice, and such reasonable opportunity to repair, it is here that our roads diverge. I cannot think that such an injunction was authorized by the case presented by the complaints. Moreover, the equities of the bills were fully denied. Nor is there sufficient proof in the affidavits to justify the apprehension that these public officers are acting in a wanton or oppressive spirit, nor to warrant the belief that the abatement of non-insulated wires is to be used as a pretext for the unnecessary destruction of any part of the plaintiffs’ system which is not really dangerous to the community. The case is consequently within the principles laid down in Hart v. Mayor, 9 Wend. 571; Meeker v. Van Rensselaer, 15 Wend. 397; Cronin v. People, 82 N. Y. 320, and similar cases. It is freely conceded that this power of abating nuisances must be reasonably exercised, and, as is said by'Judge Dillon in his work on Municipal Corporations, (volume 1, §95,) “although the power be given to be exercised in any manner the corporate authorities may deem expedient, it is not an unlimited power, and such means only are intended as are reasonably necessary for the public good. Wanton or unnecessary injury to private property and private rights are not thereby authorized.” Citing Babcock v. City of Buffalo, 56 N. Y. 268. There is another principle which should be conceded with equal freedom; and that is that the corporate authorities cannot by their mere declaration make that a nuisance which in fact is not. Where, however, the thing sought to be abated is “intrinsically and inevitably a nuisance,” there, as is said by Judge Dillon, (volume 1, § 379,) the authority to preserve the health and safety of the inhabitants and their property is a sufficient foundation for ordinances suppressing and prohibiting it. “Much,” lie adds, “must necessarily be left to the discretion of the municipal authorities; and their acts will not be judicially interfered with, unless they are manifestly unreasonable and oppressive, or unwarrantably invade private rights, or clearly transcend the powers granted to them.” The cases cited abundantly establish the proposition that Mr. Gilroy had a right summarily to abate the common nuisance of any non-insulated wire found to exist in the plaintiffs’ systems. He had this right both individually and officially, and he was not dependent for his justification upon either the resolution of the board or the order of the mayor. In Meeker v. Van Rensselaer, supra, the defendant was an alderman. He was sued for pulling down five dwelling-houses, which were proved to be nuisances. He also proved that the board of health had directed the nuisances to be abated. The supreme court held that his justification on the latter head failed, because the minutes of the board had not been produced; but the court said that in its judgment the proof was immaterial, “because the defendant did not need any authority from the board of health. As a citizen of the Fifth ward who desired to preserve the public health, and especially as an alderman, he was fully justified in every act done by him.” According to the ruling now under review, a court of equity might have enjoined that citizen and alderman until *799he had given the owners of the five houses notice, and a reasonable opportunity to abate; and, indeed, such an injunction would have been more reasonable in a case where the mere touch of the houses did not necessarily involve immediate death. So in Hart v. Mayor, supra, it was held that the municipality, as a corporate body, had the right to abate a nuisance detrimental to the trade of the city; and the court of errors affirmed an order of the chancellor dissolving an injunction which restrained the corporation from summarily abating such nuisance. Mr. Justice Sutherland said that the right did not depend upon the validity of the ordinance, considered as a legislative act, any more than it does here upon the resolution of the board or the order of the mayor; but that the real question was “whether the corporation had power, upon any principle whatever, to do the act which the ordinance authorized to be done. The injunction restrained the corporation and their officers from intermeddling with or removing the complainant’s float. If that float is a public nuisance which the corporation had a right to abate, that right cannot be affected or impaired by their having undertaken, in the form of an ordinance, to prescribe to their agents or officers the manner in which they should proceed to cause it to be removed. I have already expressed the opinion that this float, considered as an unauthorized obstruction either of the river or the basin, was a public nuisance; and the books lay down the rule, in very broad terms, that any person may abate a common nuisance.” In the same case, Senator Edmonds said that he entertained no doubt that the respondents, as a corporate body, had a right to abate the nuisance. “Any person, ” he said, “ may abate a common nuisance. ” The objection was then made that the plaintiffs, by the corporate action, would be deprived of their property without due process of law or trial by jury. To this Mr. Justice Sutherland answered that the provision of the constitution was inapplicable, because there was a right summarily to remove the obstruction. “Formal legal proceedings,” he observed, “and trial by jury are not appropriate to, and have never been used in, such cases.” To the same effect, Senator Edmonds, (see his remarks at pages 609 and 610.) If these doctrines were maintained in a case where commercial interests alone were in question, and where the obstruction was claimed to be but partial and limited, surely, a fortiori, they apply where human life and the free enjoyment of the highway without fear or apprehension are involved.
To require a preliminary notice under such circumstances would be to paralyze the legal agencies provided to secure the safety of the inhabitants of the city, and to set a premium upon corporate negligence; that, too, in a case where the highest corporate diligence is demanded, nothing whatever should be permitted to stand between the officer of the municipality and the actually nail-insulated wire, nor should he be hindered or delayed for one moment in his laudable purpose of protecting his fellow-citizens by its neutralization. If in destroying its deadly force the officer exceeds his duty, the remedy at law is ample. So, also, is the remedy in equity, if he shall attempt unnecessarily to destroy the entire system, or so large a part of it as substantially to bring about that result, or otherwise to work irreparable injury, in the sense which we have pointed out. But, so long as he acts fairly and moderately, without wantonness or oppression, he has nothing to fear. At all events, the la^t thing that should be set in motion to paralyze his honest efforts for the protection of human life is the power of a court of equity, exercised on mere motion pendente lite. In my judgment, this part of the order should be reversed, and the injunction, as to Gilroy, wholly dissolved. That part of the order which enjoins the board of electrical control from preventing repairs was clearly unauthorized. It is in the nature of a final, mandatory judgment, and is in effect a peremptory mandamus, granted before trial in an equity suit. The facts upon which it was granted showed that the only substantial dispute was as to the right to replace old wires by new ones, *800larger in size, and of greater conductivity. The general right to repair had been conceded long before the commencement of these suits. Upon these facts, the utmost that the plaintiffs would have been entitled to, even in a proper proceeding, was an alternative mandamus; and, in view of the discretion vested in the board with regard to fresh constructions, and the probability that such discretion covered larger wires, of greater conductivity, even an absolute denial of an application for a mandamus would have been justified. Both upon the facts, then, and the law regulating such procedure, this part of the injunction should fall with that which has been the main subject of consideration.
Van Brunt, P. J. I concur in the additional suggestions contained in this opinion.