(dissenting). — On one very material point I am unable to agree with the views expressed by the majority in this case. When the cases of Chamberlain v. Iowa Telephone Co., 119 Iowa, 619, and State v. Nebraska Telephone Co., 127 Iowa, 194, were decided, the statutory provisions in reference to the use of streets and roads by telephone companies were the same as they are now, and I fail to find in those cases any intimation that Code, sections 775 and 776, constituted a limitation on the powers of such companies as to the streets. As these sections of the Code are not set out in the majority opinion, I insert them here:
775. Cities and towns shall have the power to authorize and regulate telegraph, district telegraph, telephone, street railway and other electric wires, and the poles and other supports thereof, by general and uniform regulation,' and to provide the manner in which, and places where, the same shall be placed upon, along or under the streets, roads, avenues, alleys, and public places of such city or town, and may divide the city into districts for that purpose.
776. No franchise shall be granted, renewed, or extended by any city or town for the use of its streets, highways, avenues, alleys or public places, for any of the purposes named in the preceding section, unless a majority of the legal electors voting thereon vote in favor of the same at a general or special election.
It seems to me plain that section 775 was intended only to authorize cities and towns to regulate the manner in *460which and places where the lines of telephone companies should be constructed through the streets. It is to be noticed that section 775 also relates to street railway and other electric wires, not authorized in the street by any general statute of the state, while telegraph and telephone companies are expressly authorized by the general statute, which, as construed in the two cases just cited, was applicable to streets, as well as to roads. Code, section 775, therefore applies in a general way to some lines of electric Avires authorized to be constructed by general state statute and other lines not so authorized to be constructed; -and it seems to me that, as to the lines authorized to be constructed under the general law of the state, this section amounts only to a grant of power to regulate. In view of this fact, Code, section 776, should be construed only as applicable to such lines of electric wires as could not be erected in the streets, save in pursuance of express authority from the city council. Even as to telegraph and telephone lines, a franchise might well be important, and if the council attempts to grant such a franchise it can do so only under the provision of section 776; but I can not read into the sections any intention to repeal the general law relating to the construction of such lines in “roads;” that term necessarily including streets. That such a limitation or repeal is not necessarily implied, and should not he read into the statute, is supported by a great number of cases so directly in point that I need only say with reference to them that they are distinctly contrary to the conclusion which 'the majority has reached. Among these cases are the following: Wichita v. Old Colony Trust Co., 132 Fed. 641 (66 C. C. A. 19); Northwestern Telephone Ex. Co. v. Minneapolis, 81 Minn. 140 (83 N. W. 527, 86 N. W. 69, 53 L. R. A. 175); Wisconsin Telephone Co. v. Oshkosh, 62 Wis. 32 (21 N. W. 828); Texarkana v. Southwestern T. & T. Co., 48 Tex. Civ. App. 16 (106 S. W. 915); New Hope Telephone Co. v. Concordia, 81 Kan. 514 (106 *461Pac. 35) ; State ex rel. v. Red Lodge, 30 Mont. 338 (76 Pac. 758); State ex rel. v. Sheboygan, 111 Wis. 23 (86 N. W. 657); State ex rel. v. Milwaukee, 132 Wis. 615 (113 N. W. 40); Michigan Telephone Co. v. Benton Harbor, 121 Mich. 512 (80 N. W. 386, 47 L. R. A. 104); American Union Telephone Co. v. Harrison, 31 N. J. Eq. 627; Summit v. N. Y. & N. J. Telephone Co., 57 N. J. Eq. 123 (41 Atl. 146); In re Johnston, 137 Cal. 115 (69 Pac. 973); Carthage v. Central New York Telephone Co., 185 N. Y. 448 (78 N. E. 165, 113 Am. St. Rep. 932). Quotations might be made from these eases, showing that the courts deciding them had for consideration the very question here presented; but I refrain from amplifying this dissenting opinion, deeming it sufficient to call attention to the construction which I think should be given to our statutory provisions in accordance with the practically uniform current of authority in other states, and, as I think, in exact conformity with the views entertained by this court in deciding the two cases referred to.