ON MOTION EOR REHEARING.
We have been asked to grant a rehearing in this cause. In view of the evident earnestness of counsel, as disclosed by the motion, we have again examined the question presented. ' That examination has resulted in the conclusion that defendant’s objections to the views set forth in the foregoing opinion are unsupported by authority. Here is an ordinance which requires that before anyone shall tear up or dig into the streets of the plaintiff city, permission must be obtained for that purpose. This precautionary provision as applied to the streets of a city, is so evidently appropriate that it ought not to require more than its statement.
Nor is there anything of substance in the objection that *325the ordinance caii not be applied to defendant for the reason that it built its track on the street in question before the street became a part of plaintiff city by the extension of its limits. The case of Stuyvesant v. Mayor of New York, 7 Cow. 603, was where the defendant was prosecuted under an ordinance of the city of New York, then recently passed, prohibiting the burying' of dead bodies in a part of the city in which Trinity churchyard was situated. The burial having been in Trinity churchyard, the defense was that under a grant from the King of Great Britain to the church corpo1 ration such yard was for burial purposes and had been so used for more than a century; and that the defendant was the sexton in the employment of said church and did the act under its direction. In holding the defendant amenable to' the ordinance, the court said: “Nor can it make any difference that the right is purchased previous to the passage of the by-law, or before it becomes necessary. * * * Every right, from an absolute ownership in property down to a mere easement, is purchased and holden subject to the restriction, that it shall be so exercised as not to injure others. Though, at the time, it be remote and inoffensive, the purchaser is bound to know, at his peril, that it may become otherwise by the residence of many people in its vicinity; and that it must yield to by-laws, or other regular remedies, for the suppression of nuisances.”
In the case of the Telegraph Co. v. Hess, 125 N. Y. 641, the plaintiff, a telegraph corporation, constructed its line by poles and wire, in the streets of New York city, under a legislative grant authorizing such construction by the erection of “necessary fixtures, including posts,” etc., in the streets and highways. After the construction, under such authority, the legislature provided for subways for electrical conductors in certain streets, and after notice to the corporation to remove its wires and poles as provided in the act last mentioned, and its refusal to do so, it was held that the com*326missioner of public works could not be restrained from cutting down the poles and removing the wires. In the course of tbe opinion in that case tbe court said:
“The right of the plaintiff to maintain and operate its wires in the streets could certainly be no greater than the right of railroads which by public authority occupy the streets and highways of the state. The state in the exercise of its police power, and the regulating control which it has over corporations created by its authority, may exercise a general supervision over such corporations. It may prescribe the location of the tracks, the size and character of the rails, the precautions which shall be taken for the protection of the public, and the character and style of highway crossings; and no one has ever questioned that it may do whatever is necessary and proper for the public welfare in the control and regulation of the franchises which such corporations have obtained by statutory authority.”
It was held in Salem v. Maynes, 123 Mass. 372, that a city ordinance prohibiting the erection of wooden buildings within a certain distance of another wooden building could be enforced against one who had made his contract for, and had begun the erection of a building within the prohibited distance before the ordinance was passed. The court said: “All contracts between individuals, and even charters granted by the state, are subject to the exercise of this power.” And the same doctrine was announced in a later case by the supreme court of Tennessee. Knoxville v. Bird, 12. Lea 121.
In Ex parte Fiske, 72 California, 125, there was an ordinance of the city of San Francisco prohibiting the alteration or repair of* any wooden building without written permission of the fire wardens, approved by the committee on fire department and the mayor. Fiske, having violated the ordinance, was prosecuted and fined $250, and in default of payment sent to jail. The court held the ordinance valid *327notwithstanding the inconvenience to individuals in many instances. The court said that it was not to be presumed that the officers named in the ordinances would exercise their powers or discretion wantonly or oppressively.
The Supreme Court of the United States had a question of enough similarity to the one before us to make a reference thereto appropriate, at least, by way of illustration. Fertilizing Co. v. Hyde Park, 97 U. S. 659. There the state of Illinois incorporated a fertilizing company in 1867, and authorized it to locate fertilizing works and manufacture fertilizers within certain territory near Chicago; and for that purpose to convey the bodies of dead animals, offal, etc., to the place selected. When the works were constructed and the business was being carried on, the surrounding grounds were low, swampy and practically uninhabited. Afterwards the village of Hyde Park grew up around or about the works and in 1872 the council of the village passed an ordinance prohibiting any one from hauling or transporting the bodies of dead animals, or other offensive matter, through the streets of the village. In 1873 the authorities of the village caused to be arrested and prosecuted an engineer and other employees of a railroad company which was transporting such offensive matter. They were convicted and the fertilizing company sought to restrain further prosecutions; but the Supreme Court of Hlinois and, on appeal, the Supreme Court of the United States, held the ordinance valid.
It will be seen by the foregoing authorities, in connection with State ex rel. v. Murphy, 130 Mo. 10, that the act of the plaintiff city in enforcing the ordinance in question against the employees of the street railway company was a proper and legitimate exercise of a power it clearly possessed.
The motion will be overruled.
The other judges concur.