(dissenting).
I cannot assent to the conclusion reached by the court upon several vital questions in this case. It is not my purpose, however, to discuss them in detail, but simply to state my conclusions.
I dissent from so much of the decision as is to the effect that telephone companies are given, subject only to proper exercise of the police power, the right, by G. S. 1866, c. 34, § 28, as amended by Laws 1881, c. 73 (G. S. 1894, § 2641), to use the public streets of the municipalities of the state, without the permission of the corporate authorities, for the purpose of erecting and maintaining their posts and wires therein, provided such posts be so located as in no way to interfere with the safety or convenience of ordinary travel in such streets.
While the word “highways,” in its most comprehensive meaning, includes the streets of a municipality, yet in its popular meaning it does not. Wherever the word is used in a statute, its meaning depends upon the legislative intent, but no inflexible rule can be laid down for determining such intent. It must be gathered from the language used, the subject-matter and the purpose of the statute, and existing legislation to be affected by it. It seems unreasonable to conclude that the legislature intended by this statute to repeal, pro tanto, existing special laws giving to the municipalities of the state the control of their streets, and to confer the perpetual right upon telegraph and telephone companies to enter upon any and all of the streets of such municipalities, without consent of the governing body thereof, and erect and maintain therein their poles and wires, subject to no control or limitation except such as is incidental to the exercise of the police power. If such was the intention of the legislature, it seems reasonable to believe that it would have been clearly expressed by the use of the word “streets” in connection with the words “roads and highways,” as was and is the legislative custom in cognate cases, as evidenced by numerous statutes. It seems clear to me that the word “highways” was used in this statute in its restricted sense, as referring only to rural highways, *166and not to the streets of the municipalities of the state. In any event, there is more than a fair doubt as to whether it was intended by the statute in question to grant any rights in such streets; hence the doubt must be resolved against all parties claiming such rights, for public grants, unlike private ones, must be construed strictly against the grantee.
I am of the opinion that the plaintiff has no right to maintain its poles and wires in the streets of the defendant city by virtue of G. S. 1894, § 2641, but that its rights therein depend upon the charter provisions and ordinances of the city. The plaintiff, by virtue of the existing charter provisions of the city, on January 24, 1883; the city ordinance of that date, referred to in the record as “Ordinance A”; the amendment of the charter 34 days thereafter (Sp. Laws 1S83, c. 3, § 13); and by its acceptance of the ordinance, — acquired a qualified contract right to maintain its telephone exchange system in the streets of the city. The right, however, to have the poles and wires removed from the surface of the streets, and placed underground, whenever, in the opinion of the city council, public interest so required, was expressly reserved, as a part of the contract. This stipulation is something more than the mere right to regulate and control the streets of the city and the business of the plaintiff in the exercise of the police power. That right is inalienable, and need not be reserved. While the city council, by virtue of this provision of the contract, cannot confiscate the plaintiff’s property,'nor wholly exclude it from the streets of the city, yet it does commit the question as to when, and to what extent, public safety, convenience, and comfort require that the defendant’s poles should be removed from the surface of the streets, and its wires placed underground, to the discretion, judgment, and decision of the city council. It is the arbitrator agreed upon to determine the question, between the city and the plaintiff, whether public interests at any particular time require that the wires be placed below the surface of the street; and its decision, when made, whether it be correct, wise, or just, is conclusive, unless it has acted in the premises arbitrarily or dishonestly. When, as in this case, the city council passes an ordinance requiring the wires within a designated district to be placed in sub*167surface conduits, tbe ordinance, whether a proper exercise of the police power or not, is valid, and must be obeyed, unless the plaintiff can establish by satisfactory evidence that the city council did not enact the ordinance in the exercise of a fair discretion, but arbitrarily or dishonestly. The allegations of the complaint, liberally construed, are sufficient to bring the case within the rule stated, and upon this ground alone I concur in the conclusion of the court that the complaint states a cause of action.