are accused of buying and receiving stolen property, knowing it to be stolen, with intent to defraud the owners thereof, it is competent for the prosecution to offer testimony of other alleged receivings of stolen property, closely related in time, from one of the parties connected with the delivery in the principal offense charged, for the purpose of proving scienter; and further, that where the facts and circumstances surrounding the collateral offenses are related to and so connected with the principal offense charged as to logically warrant the inference of guilty knowledge in receipt of the property charged in the information, evidence of the collateral offenses is competent and material, even though the person from whom the property was received in the collateral transactions was not the only one concerned in the delivery of the property constituting the principal offense charged.

In discussing this feature of the case, the court said: "Testimony of collateral transactions, closely related in time, between the defendants and White, would manifestly have a material bearing in respect of the guilty knowledge of the defendants regarding the reception of the stolen property in the principal transaction; and such collateral transactions, if established by the evidence, would logically warrant the deduction that the defendants at the time of receiving the property in controversy had knowledge of its character, and received it knowing it to be stolen. The character of White and Warden, both, and their relations to the defendants, were proper subjects of inquiry, as throwing light upon the question of knowledge of the defendants (Foster v. State, 106 Ind. 272, 6 N. E. Rep. 641); and, because of their character and relation to the defendants, the inference would be justified that they knew the horses received by them were stolen property. Testimony of other offenses, the tendency of which is to show guilty knowledge respecting the offense for which the defendants were being tried, has always been recognized in this state as an exception to the general rule to the effect that evidence of other similar offenses cannot be introduced in order to establish the crime charged. In Berghoff v. State, 25 Neb. 213, 41 N. W. Rep. 136, the exception is clearly recognized in the syllabus, where it is held: 'Except in cases where it is necessary to show guilty knowledge, it is not admissible to prove that at another time and place the accused committed, or attempted to commit, a crime similar to that with which he stands charged.' In Davis v. State, 58 Neb. 465, 78 N. W. Rep. 930, where the crime of uttering forged paper was under consideration, it is said: "The general rule is that evidence of the commission or attempt to commit a crime similar to the one charged is inadmissible. But an exception has been quite uniformly made in trials of some charges, of which is the one in the case at bar, where it is necessary to show the intent or guilty knowledge of the accused.' And in Burlington v. State, 61

Neb. 276, 85 N. W. Rep. 76, it is held: 'On the trial of a person charged with having aided and abetted another in the forgery of a deed, it is proper, for the purpose of proving the criminal intent of the principal felon, to show that the person who committed the forgery had, but a short time before, forged another deed purporting to convey the same property.' In Bottomley v. U. S., 1 Story, 135-143, Fed. Cas. No. 1,688, the rule is stated as follows: 'In all cases where the guilt of the party depends upon the intent, purpose, or design with which the act is done, or upon his guilty knowledge thereof, I understand it to be a general rule that collateral facts may be examined into, in which he bore a part, for the purpose of establishing such guilty intent, design, purpose, or knowledge.' Says the Supreme Court of Connecticut (State v. Ward, 49 Conn. 429): To prove guilty knowledge on the part of the receiver, it may be proved that he had before received stolen goods from the same person from whom he received the goods in question. It is not necessary that the goods, before received, should have been stolen from the same person, nor be of the same character.' In Shriedley v State, 23 Ohio St. 142, the court expresses itself on the subject as follows: But without discussing the question upon principle, I deem it only necessary to say that we are constrained by the authorities to hold that upon the trial on an indictment for receiving certain stolen goods knowing them to have been stolen, evidence that other goods, known to have been stolen, were previously received by the defendant from the same thief, is admissible for the purpose of showing guilty knowledge on the part of the accused that the goods, for receiving which he is charged, were stolen; citing Rex v. Dunn, 1 Moody, Cr. Cas. 146; Devoto v. Com. 3 Metc. (Ky.) 417; People v. Rando, 3 Parker, Cr. R. 335; Rex v. Davis, 6 Car. & P. 177; 3 Greenl. Ev. § 15, and note; 2 Whart. Am. Cr. Law, § 1889; 2 Russ. Crimes, 251; Rose. Cr. Ev. 875; In Morgan v. State (Tex. App.) 18 S. W. Rep. 647, it is held regarding the admissibility of evidence to prove knowledge and intent: 'It was admissible to show that defendant knew the cattle were stolen, by evidence that at other times and places than that charged he received cattle from persons who owned none, and who had no money to buy any; that there were many different brands on the cattle received from the person from whom he got the animal, as charged in the indictment, while some had their brands burnt; and that all these cattle had been found in the possession of the person to whom defendant delivered them.'" See, also, Com. v. Johnson, 133, Pa. 293, 19 Atl. Rep. 402; Coleman v. People, 58 N. Y. 555; Harwell v. State (Tex. App.) 2 S. W. Rep. 606; Underhill, Cr. Ev. § 89, and notes.

MUNICIPAL REGULATION AND CONTROL OF TELEPHONE AND TELEGRAPH COMPANIES.

In the consideration of questions growing out of the exercise of municipal authority over corporations engaged in the business of electrically transmitting written or articulate speech, the primary inquiry concerns itself with the extent of the power vested in the particular municipal corporation in question. It may be laid down as a general rule that a municipality ordinarily possesses no greater powers than those delegated to it, either expressly or by indispensable implication, by the constitution or by the legislature.1

As well expressed by Nelson, J., it may be said that: "It is a well-settled rule of construction of grants by the legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessary implication, regard being had to the objects of the grant."2 If doubt exist, the presumption is against the municipality claiming the right to the exercise of such powers, since it is clearly against the fundamental principles of our government to imply a divestation of the sovereignty of a state under the terms of a grant purporting to define the extent to which such powers have been delegated. Where these powers are sought to be exercised as against corporations, such as those under discussion, the questions involved become varied and more complex. From the very nature of their business, telephone and telegraph companies may be termed public utilities and, in consideration of their value to the community at large, certain rights, not ordinarily possessed by private business corporations, as for example the power of eminent domain, have been very generally granted them. To what extent then may a municipality regulate and perhaps even totally defeat the evident purpose of the legislature? Distinction cannot properly be made in law between telephones and telegraphs. We believe with Mr. Justice

1 Phila., etc., R. R. v. Hoboken, 35 N. J. L. 208; 2 Dill. Mun. Corp. par. 680.

2 Minturn v. Larne, 23 How. 436.

3 R. R. Co. v. Comrs., 21 Pa. St. 22; Fertilizing Co. v. Hyde Park, 97 U. S. 666; Bridge v. Bridge, 11 Pet. 420.

4

Stephens, that this attempted distinction is more scientific than legal, and perhaps more metaphysical than scientific."

concerning the extent of municipal regulation To a certain extent at least, these questions concerning the extent of municipal regulation and control may be narrowed. Despite their quasi-public nature, it may be laid down as a general rule that telephone and telegraph companies, within the corporate limits, are subject to all reasonable and proper police regulations enacted and enforced by the municipality. The sole question at issue in surch cases would seem to be, is the regulation in question a proper exercise of such power? The municipality may not, under the guise of police power, impose unreasonable burdens, or levy taxes beyond an amount sufficient to compensate it for the expense incurred in properly and efficiently policing the lines of such companies.7 such companies. So a municipal ordinance requiring safeguards, at points where the wires of the one company cross those of another, is a reasonable exercise of police power, as tending to promote the safety of the general public; and likewise, an ordinance requiring that telegraph wires be placed in

conduits.9

In several states the entire matter of municipal control concerned itself only with these and similar questions of police power. In New York, under a statute giving to telegraph and telephone companies the right to use the streets for the construction of their lines, it has been held that the franchise in such cases comes direct tosuch corporations from the legislature, and a charter granting to a municipality the right to regulate the construction and maintenance of such lines only commits to it the regulation of such quasi-public enterprises under a proper exercise of municipal police power.10 In Michigan a similar opinion would seem to prevail. 11 In Wisconsin, where there is a general telephone and telegraph statute,

46 Queen's Bench Div. 244.

5 C. & P. Tel. Co. v. B. & O. Tel. Co., 66 Md. 410; Duke v. Tel. Co., 53 N. J. L. 341; Tel. Co. v. Elect. Ry., 42 Fed. Rep. 273; Tel. Co. v. Oshkosh, 62 Wis. 32.

6 Allegheney v. Ry. Co., 159 Pa. St. 411; Pittsburg, etc., Ry. Co. v. Chicago, 159 Ill. 369; Richmond v. So. Bell Tel. Co., 174 U. S. 761.

7 Sunset Tel. & Tel. Co. v. Medford, 115 Fed. Rep. 202; So. Bell Tel. Co. v. Richmond, 174 U. S. 761. 8 State v. Janesville Ry. Co., 87 Wis. 72.

9 W. U. Tel. Co. v. Mayor, 38 Fed. Rep. 552.

10 Barhite v. Home Tel. Co., 50 App. Div. 25.

11 Mich. Tel. Co. v. Benton Harbor, 47 L. R. A. 104.

proper exercise of governmental and police powers. 24 So where a city authorizes a telephone company to run and maintain its wires over and through the streets, authority to lay wires under, below, or beneath the surface thereof is not included. Where the city reserves the right to regulate the manner of occupation, it may compel the telephone company to adopt all reasonable and generally accepted improvements. 25 In short, the ordinance assumes, after acceptance, the nature

and attributes of an executed contract. If it is limited in time, after the expiration of that time, it expires, and all advantages or benefits thereunder cease to exist. 26 On the other hand, the city may impose no new burdens, as, for example, a charge per pole for the use of the streets.27

In the execution of contracts of this nature the most usual stipulation on the part of the municipality is as to the location of the poles of such proposed lines. It is clearly within the power of the city to designate on what part of its streets a telephone company shall locate its line, and the exercise of such power is consequently presumptively valid and cannot be interfered with by the courts, unless shown to have been arbitrary and unreasonable. 28 Conversely, the same proposition is true. The specifications and decisions by the mayor and aldermen, or the common council of a municipality, determining the location of the poles of a telegraph company in the city streets are conclusive upon the rightfulness of their erection, so that they cannot be removed by the municipality.29 It is not necessary, however, for the common council of a city, in designating the streets upon which a telephone company shall construct its line, to specify the particular place where each pole shall come, a general designation is sufficient. A recent Minnesota case upon this point is of interest.

30

24 Allegheney v. Millville Ry. Co., 159 Pa. St. 411: Textor v. B. & O. R. R. Co., 59. Md. 63.

25 Com. v. Warwick, 185 Pa. St. 623.

26 Mut. Union Tel. Co. v. Chicago, 16 Fed. Rep. 309 27 St. Louis v. W. U. Tel. Co., supra.

28 Home Tel. Co. v. Cumb. Tel. Co., 111 Fed. Rep. 663.

.29 Com. v. Boston, 97 Mass. In New Jersey the liability imposed upon municipal bodies by Act of April 27, 1888, to designate streets on which telephone or telegraph poles may be erected, exists only for through lines and not for local systems, hence mandumus to the city council for a local line will not lie. Tel. Co. v. New Brunswick, 62 N. J. L. 172.

30 Marshall v. Bayonne, 59 N. J. L. 101.

A condition in the ordinance provided that all poles should be located under the supervision of the commissioner of public works, but that official, in an arbitrary manner, refused to designate a location, and the line of poles and wires was erected without securing the commissioner's approval. It was held that the company had no right to locate its poles without securing the commissioners' action. 31

As to the question of a municipality granting an exclusive right of this character, no doubt can exist that such an act would be ultra vires. To enact such an ordinance, the whole sovereign power must have been delegated to the city, and it is at least doubtful if such an instance exists.32 Nor can such a grant be made exclusive by act of the grantee, so while the prior occupancy of space in city streets by the poles and wires of a telephone company, acting under a municipal grant, entitles such corporation to the continual enjoyment of such right without substantial impairment, such occupancy is not, however, absolutely exclusive, but is subject to a right subsequently granted to another company under power reserved by the municipality. The latter company cannot, however, unnecessarily interfere with the operation of the lines of the former, nor work serious injury or detriment thereto. 33

As to the method of action by the municipality in granting rights to telephone companies for the occupancy of its streets, no rule sufficient for all cases can be laid down, and recourse must be had to the statute governing. Where the power is conferred by statute and the manner of the exercise prescribed, all other methods of action are, by implication, prohibited. On the other hand, Van Vleet. V. C., says: 35 "Where no method is prescribed in which a municipality may exercise its power, but it is left free to determine the manner for itself, it may act either by resolution or ordinance. One method is just as effectual in point of law as the other.''86

31 St. Paul v. Freedy, 90 N. W. Rep. 781.

32 Boston R. R. v. Salem R. R., 2 Gray, 32; Waterworks v. Atlantic City, 39 N. J. Eq. 367; Ill. Trust Co. v. Arkansas City, 34 L. R. A. 518.

33 Home Tel. Co. v. Cumb. Tel. Co., 111 Fed. Rep. 663.

34 Des Moines v. Gilchrist, 67 Iowa, 211; Mayor v. Porter, 18 Md. 284; McCoy v. Bryant, 53 Cal. 248. 35 Halsey v. St. Ry. Co., 20 Atl. Rep. 859.

36 Burlington v. Dennison, 42 N. J. L. 165: Crawfordsville v. Braden, 130 Ind. 149; Quincy v. Chicago, etc., R. R. Co., 92 Ill. 23.

As to the alienation of such municipal rights by the grantee, the decisions would seem to be harmonious. In Illinois it has been held that the grant by a municipality, to a telephone company, "its successors and assigns," of a right to use the streets for the location of its lines of poles and wires, was subject to alienation by such company. 37 In In Michigan, the court decided that such rights were subject to alienation, without the consent of the city by virtue of the general provisions of a statute authorizing corporations to alienate their property. 3 38 In Pennsylvania, this right is somewhat restricted and the view is taken that authority given by the charter of a telegraph company to lease its lines, fixtures and apparatus, does not authorize a lease of its franchise nor empower its lessee to build new lines upon new routes.39 The rule may therefore be laid down that, provided, the terms of the grant itself, or statutory authority running therewith, or by implication forming part thereof, authorize alienation, the rights acquired in city streets by a telephone or telegraph company under grant from the municipality are subject to alienation, otherwise not.

The entire matter concerning municipal regulation and control of telephones and telegraphs may be briefly summed up. It is a question in each individual case as to the extent of the delegation of sovereign power to the particular municipality and the presumption is against such delegation of authority. Where this question is at issue, reference must be made to the state constitution, the acts of the legislature governing, and to the city charter and any amendments thereto. The power that creates may also control. Each municipality, within its own corporate limits, is possessed of the right to the exercise of all requisite, reasonable and proper police power, but entire sovereignty cannot be implied as a necessary adjunct thereto. It may be said that in general all states have authorized by statute, the enfranchisement of telephone and telegraph companies and have generally granted to such corporations the right to use the streets and highways for the purposes of their business; we may then assume that the statutory conditions pre

37 People v. Cent. Union Tel. Co., 192 Ill. 307.
38 Mich. Tel. Co. v. St. Joseph, 47 L. R. A. 87.
39 Phila. v. W. U. T. Co., 2 W. N. C. 455.

cedent having been fulfilled, such rights vest immediately in corporations so organized for the electrical transmission of speech, either articulate or written. For the municipality to detract from or impair such rights, the necessary portion of the state's sovereignty must have been properly delegated to it. The necessity then of a grant from a municipality to such a corporation, or the value of any particular clause in the instrument of grart be it ordinance or resolution, or its effect, that of the grant of an easement or a contract, depends primarily upon the power of such municipality to grant such rights or to enter into a contract of this nature.

G. C. HAMILTON, LL. M.

CONSTITUTIONAL LAW-VALIDITY OF SPECIAL JURIES.

STATE v. BOLLN.

Supreme Court of Wyoming, September 12, 1902. Bill of Rights, § 10, securing to the accused in criminal prosecutions the right to a "trial by an impartial jury of the county," is not violated by Rev. St. 1899, § 3346, requiring the jury commissioners to put on the jury list the names of all whom they "believe" to be qualified to serve as jurors, or by section 3358, providing that if the jury panel for the term become exhausted it shall be completed from those on the jury list living within five miles of the courthouse.

Ehler Bolln and John Ulrich were indicted for crime. In the matter of summoning the petit jury for the May Term of court, 1902. Upon reserved questions.

CORN, J.: Questions 5, 6, 7, and 8 present the inquiry whether the provision authorizing the officers named as jury commissioners to select a list of jurors is in violation of section 10 of the bill of rights securing to the accused in criminal prosecutions the right to a "trial by an impartial jury of the county or district which the offense is alleged to have been committed," and also whether the provisions for completing the jury panel by drawing from box No. 3, which contains only the names on the jury list of those who reside within five miles of the city or town where the court is held, is in violation of the same section. It is urged that this court has no jurisdiction to consider and decide the latter question, because in these proceedings it has not yet become necessary, and may not become necessary at all, to have recourse to box No. 3, and that, therefore, it has not arisen within the meaning of the statute. But the question is also asked whether this provision is so involved as a part of the plan of procuring juries under the statute that, if it should be declared unconstitutional, other sections would become inoperative, and the entire method devised by the legislature for the