Feb. 1901.] Opinion of the Court-REAVIS, C. J. of telegraph and telephone within this state, and said companies shall receive and transmit each other's messages without delay or discrimination, and all of such companies are hereby declared to be common carriers. and subject to legislative control. Railroad corporations organized or doing business in this state shall allow telegraph and telephone corporations and companies to construct and maintain telegraph lines on and along the rights-of-way of such railroads and railroad companies, and no railroad corporation organized or doing business in this state shall allow any telegraph corporation or company any facilities, privileges, or rates for transportation of men or material or for repairing their lines not allowed to all telegraph companies. The right of eminent domain is hereby extended to all telegraph and telephone companies. The legislature shall, by general law of uniform operation, provide reasonable regulations to give effect to this section." Article 12, § 19. Paragraph 7, § 739, Ballinger's Code, vests cities of the first class, of which respondent is one, with power "To lay out, establish, open, alter, widen, extend, grade, pave, plank, establish grades, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and other public grounds, and to regulate and control the use thereof, and to vacate the same, and to authorize or prohibit, the use of electricity at, in, or upon any of said streets, or for other purposes, and to prescribe the terms and conditions upon which the same may be so used, and to regulate the use thereof." Section 4369, Id., provides: "Any telegraph or telephone corporation or company, or the lessees thereof, doing business in this state, shall have the right to construct and maintain all necessary lines of telegraph or telephone for public traffic along and upon any public road, street, or highway, along or across the right-of-way of any railroad corporation, and may erect poles, piers, or abutments for supporting the insulators, wires and any other necessary fixtures of their Opinion of the Court-REAVIS, C. J. [24 Wash. lines, in such manner and at such points as not to incommode the public use of the railroad or highway, or interrupt the navigation of the waters: provided, that when the right-of-way of such corporation has not been acquired by or through any grant or donation from the United States, or this state, any county, city or town therein, then the right to construct and maintain such lines shall be secured only by the exercise of the right of eminent domain, as provided by law: provided further, that where the right-of-way, as herein contemplated, is within the corporate limits of any incorporated city, the consent of the city council thereof shall be first obtained before such telegraph or telephone lines can be erected thereon." 1. The issue involved is succinctly stated by counsel for appellant: "Has the city council the power to refuse the use of its streets to a corporation competent and qualified to erect a telephone exchange within the city?" Counsel have first addressed themselves to constitutional rights, and maintain that § 12, art. 1, of the constitution, supra, inhibits municipalities from granting exclusive franchises, and that, as such franchise has been. granted to one telephone company by the city, the refusal to grant another to appellant in fact constitutes the first grant an exclusive one; and well-considered authority is cited to sustain the principle that neither the city nor the legislature may grant exclusive privileges. Among them are Norwich Gaslight Co. v. Norwich City Gas Co., 25 Conn. 19; State ex rel, Attorney General v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262. The argument against the power to grant an exclusive privilege is sound, and is fully sustained in the rule announced by this court in North Springs Water Co. v. Tacoma, 21 Wash. 517 (58 Pac. 773, 47 L. R. A. 214). But the question of the power to grant an exclusive privilege cannot arise here. Opinion of the Court-REAVIS, C. J. Feb. 1901.] If the city had attempted to grant such privileges to a telephone company, so as to disable itself from consenting to the construction of another telephone system through its streets, such attempt would be void and beyond its power. The city cannot by ordinance or contract disable itself to consent to the erection of telephone lines upon its streets. The volition to consent or refuse is one of the powers vested by the legislature in cities of the first class, and this continuing power cannot be divested without the sanction of the legislature. The legislature, within constitutional limitations, has sovereign control of the streets and highways of the state and the cities. The primary purpose for which highways and streets are established and maintained is for the convenience of public travel. The use of such highways and streets for water mains, gas pipes, telephone and telegraph lines is secondary and subordinate to the primary use for travel, and such secondary use is permissible only when not inconsistent with the primary object of the establishment of such ways. Cincinnati Inclined-Plane Ry. Co. v. City & Suburban Tel. Ass'n, 48 Ohio St. 390 (12 L. R. A. 534, 29 Am. St. Rep. 559, 27 N. E. 890); Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 135 N. Y. 392 (17 I. R. A. 674, 31 Ani. St. Rep. 838, 32 N. E. 148); Halsey v. Rapid Transit St. Ry. Co., 47 N. J. Eq. 380 (20 Atl. 859). It would seem that, within the fundamenta! limitations mentioned, the legislative control of ways and streets for its secondary use is absolute, and that the legislative discretion in this regard is not subject to judicial intervention. That the legislature may delegate to municipalities such powers and act through their instrumentality is unquestioned. 2 Dillon, Municipal Corporations (3d ed.), §§ 705, 724; Pacific R. R. Co. v. Leavenworth, 18 Fed. Cas. 953 (No. 10,649). The city streets are Opinion of the Court-REAVIS, C. J. [24 Wash. limited in dimension. It is apparent that the secondary uses of the streets are physically restricted. When such limit is approached or reached must be determined by some competent authority. The inconvenience, too, of the obstruction of the streets for any secondary uses, and also the breaking up of the solid surface, which is frequently of stone and other expensive material, all suggest the propriety of the control of such uses in the discretion. of the municipality. It is further urged that § 19, art. 12, of the constitution declares the right of any corporation or individual to construct and maintain lines of telegraph and telephone within the state, and that such lines are declared to be common carriers, and the right of eminent domain was extended to them. It may be observed that, in the absence of such constitutional provision, telegraph and telephone companies could derive such rights from the legislature and it may also be seen that the same section imposes the duty on the legislature to provide by general law reasonable regulations to give effect to the section. The important feature of the section seems to be the duty imposed on the right of way of railroad corporations. The section of the constitution, however, is not self-operative, but requires the action of the legislature to give it effect. There is no prescription of rights referable to the roads, highways, and streets of the state. The obvious construction of this provision is that all such rights were left to the discretion of the legislature. The only right absolutely declared is to maintain lines of telegraph and telephone within the state. 2. It may be observed, then, that § 4369, Ballinger's Code, is pursuant to the constitutional declaration upon the subject of telegraphs and telephones. The statute authorizes the construction and maintenance of all neces Opinion of the Court-REAVIS, C. J. Feb. 1901.] sary lines of telegraph and telephone for public service along and upon any public road, street, or highway. But when the right of way has not been acquired by grant or donation from the United States or the state, or any county, city, or town, the right must be secured by the exercise of eminent domain; and it is further declared "that where the right-of-way, as herein contemplated, is within the corporate limits of any incorporated city, the consent of the city council thereof shall be first obtained before such telegraph or telephone line can be erected thereon." The contention of counsel for appellant that the statute limits the authority, of the city council to reasonable and proper regulations, and to prescribing the method in which telegraph and telephone companies shall construct and operate their lines, cannot be conceded. As has been seen, by another statute, the authority to regulate and of complete control of such lines has been given. The power to refuse is correlative with the power to consent, and such power is plainly authorized by the statute. The first clause of the section grants the easement along any public road, street, or highway, and across the rightof-way of any railroad corporation, in such manner as not to incommode the public use of the railway or highway. This provision reserves the necessary power of police regulation everywhere in the state, and it has been seen. that the same power to regulate and control the use of the street was in apt terms conferred upon cities of the first class. The authorities cited by appellant in Inhabitants of Summit Township v. New York & N. J. Tel. Co.. 57 N. J. Eq. 123 (41 Atl. 146), and Atlantic City Waterworks Co. v. Consumers' Water Co., 44 N. J. Eq. 427 (15 Atl. 583), construe different grants of power and upon different states of fact from those appearing in the case at bar and under our statute. In addition |