sent the people of the state? I think these | 2. in the law. None of them are of such a char acter as to preclude one from their performance simply because of sex. Mrs. Abbott is a citizen of the state, upward of twenty-one years of age. She is a graduate of the law department of the University of Michigan. She is duly authorized to practice law in all the courts of this state. There can be no question in the minds of anyone who heard the very able oral argument made by her in this case about the entire competency of Mrs. Abbott to discharge the duties of this office. I think the respondent is eligible to hold the office, and that the information in the nature of a quo warranto of the attorney general should be dismissed. City of BENTON HARBOR. (........Mich.........) No repeal of the provision of the telephone act of 1883, giving permission to use the streets without consent of the municipality, is made by Pub. Acts 1895, No. 215, chap. 22, § 14, which in general terms gives the common council authority to regulate or prohibit the use of signs, awning posts, and telegraph and other poles in or over the streets. (October 17, 1899.) APPEAL by complainant from a decree of the Circuit Court for Berrien County in favor of defendant in a suit to enjoin defendant from interfering with the erection of telephone lines in the defendant city. Reversed. The facts are stated in the opinion. Mr. N. A. Hamilton, with Messrs. Wells, Angell, Boynton, & McMillan, for appellant: The evidence shows a grant of permission by the village in 1881 to use the streets for telephone purposes. The permission, the establishment of a telephone plant in reliance thereon, the maintenance for sixteen years of service, the accepted offer of the use of the poles for city purposes, the furnishing of the telephones to the city at reduced rates, constitute a contract which the city is estopped to question, whose obligation it is forbidden to impair by the state and Federal Constitutions. Acceptance of such permission and action in reliance upon it give rise to a contract within the contract clause of the Constitutions. Detroit v. Mutual Gas Co. 43 Mich. 594, 5 N. W. 1039; Grand Rapids v. Grand Rapids Hydraulic Co. 66 Mich. 615, 33 N. W. 749; COMPANY, City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653; Saginaw v. Swift Electric Light Co. 113 Mich. 660, 72 N. W. 6; Baltimore Trust & Guarantee Co. v. Baltimore, 64 Fed. Rep. 159; Africa v. Knoxville, 70 Fed. Rep. 729; Arcata v. Arcata & M. River R. Co. 92 Cal. 639, 28 Pac. 676; East Louisiana R. Co. v. New Orleans, 46 La. Ann. 526, 15 So. 157; New Orleans v. Great Southern Teleph. & Teleg. Co. 40 La. Ann. 41, 3 So. 533; Quincy v. Bull, 106 Ill. 337; State, Hudson Teleph. Co. Prosecutor, v. Jersey City, 49 N. J. L. 303, 8 Atl. 123. The right of a telephone company to place its lines in the streets under Acts 1883, p. 131, § 4, is not subject to the consent of the municipality, but the sole authority of the latter is the proper exercise of the police power to protect the public from unnecessary obstructions, inconveniences, and dangers, and to determine where and in what manner the company may erect its poles and stretch its wires, so as to accomplish this re sult. NOTE. As to right to place telephone poles In a street, see Marshfield v. Wisconsin Teleph. Co. (Wis.) 44 L. R. A. 565. The rights given to the grantee under the contract are assignable, and have passed to the complainant. Joy v. Jackson & M. Pl. Road Co. 11 Mich. 155; People ex rel. Maybury v. Mutual Gastele-light Co. 38 Mich. 154; Detroit v. Mutual Gas. Co. 43 Mich. 597, 5 N. W. 1039; 3 How. Stat. § 4904e. As to police power over telegraph and phone lines, see American Rapid Teleg. Co. v. Hess (N. Y.) 13 L. R. A. 454, and note. As to telegraph or telephone poles as an additlonal burden on street, see People v. Eaton (Mich.) 24 L. R. A. 721, and note. For municipal regulation of poles and wires as a nuisance, see note to State v. New Orleans City & L. R. Co. (La.) 39 L. R. A. on page 619. For burden by state authorities on interstate telephone and telegraph companies, see Postal Teleg. Cable Co. v. Baltimore (Md.) 24 L. R. A. 161, and note. (This case was affirmed in 156 U. S. 210, 39 L. ed. 399.) Impairment of the obligation of a contract, whether by a state law or by a city ordinance, is repugnant to the contract clause of the Constitutions. Baltimore Trust & Guarantee Co. v. Baltimore, 64 Fed. Rep. 159; Central Trust Co. Central Trust Co. v. Citizens' Street R. Co. v. Citizens' Street R. Co. 80 Fed. Rep. 218; 82 Fed. Rep. 1; City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653; Penn Mut. L. Ins. Co. v. Austin, 168 U. S. 694, 42 L. ed. 630, 18 Sup. Ct. Rep. 223. After a lapse of years, the expenditure of large amounts of money by the companies, the dealings between the city and the companies, the city is now estopped to deny the rights claimed by complainant. Atlanta v. Gate City Gaslight Co. 71 Ga. 106; City R. Co. v. Citizens' Street R. Co. 166 U. S. 566, 41 L. ed. 1117, 17 Sup. Ct. Rep. 653. The act under which complainant is organized gives it the right to extend its lines in Benton Harbor, as it proposed to do when stopped by the city. Communication by telegraph is commerce. Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708; Leloup v. Port of Mobile, 127 U. S. 640, 32 L. ed. 311, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380. Communication by telephone is likewise commerce, but commerce on a much more extended scale. The laws of this state in regard to cities and villages uniformly require that a record shall be made of all official action. When the law requires such records to be kept they are the only lawful evidence of the acts of the council to which they refer. Moser v. White, 29 Mich. 59; Powers' Appeal, 29 Mich. 504; Steckert v. East Saginaw, 22 Mich. 104; Stevenson v. Bay City, 26 Mich. 44. Conjecture is inadmissible where the statute requires a record. Yelverton v. Steele, 36 Mich. 62; Farrington v. Turner, 53 Mich. 27, 51 Am. Rep. 88, 18 N. W. 544. A grant of a franchise, public in nature, like that of the Telephone & Telegraph Construction Company, is personal to the grantee, and cannot be alienated except by the consent of the granting power. 25 Am. & Eng. Enc. Law, p. 751; Croswell, Electricity, § 158; Western U. Teleg. Co. v.. Union P. R. Co. 3 Fed. Rep. 1; Atlantic & P. Teleg. Co. v. Union P. R. Co. 1 Fed. Rep. Southern Bell Teleph. & Teleg. Co. v. Rich-745; United States v. Western U. Teleg. Co. mond, 78 Fed. Rep. 858. 50 Fed. Rep. 28. By the act under which it is incorporated it is endowed with power to enter upon all the streets, highways, and public places of the state for the purpose of erecting the poles necessary for the proper discharge of its business. Municipalities are powerless to prevent such occupation, although such bodies have the right to provide, by reasonable rules and regulations, in what way its lines of poles and the fixtures attached thereto shall be erected. People v. Eaton, 100 Mich. 208, 24 L. R. A. 721, 59 N. W. 145; Atlantic City Waterworks Co. v. Consumers' Water Co. 44 N. J. Eq. 427, 15 Atl. 581; State ex rel. Bell Teleph. Co. v. Flad, 23 Mo. App. 185; Citizens' Street R. Co. v. Memphis, 53 Fed. Rep. 715; Clinton v. Cedar Rapids & M. River R. Co. 24 Iowa, 455. The power thus granted to the companies organized under the act of 1883 comes from the state. It is competent for the state to grant such rights irrespective of any action taken on the part of a city, even though the general control of its streets is possessed by the city. Grand Rapids v. Grand Rapids Hydraulic Co. 66 Mich. 615, 33 N. W. 749; People v. Kirsch, 67 Mich. 539, 35 N. W. 157. The city of Benton Harbor has no power to override the statute of 1883. The law under which it is organized does not repeal the law under which complainant is organized. Re Bushey, 105 Mich. 64, 62 N. W. 1036; Taggart v. Detroit, 71 Mich. 92, 38 N. W. 714; Merrill v. Kalamazoo, 35 Mich. 215; Brown v. McCormick, 28 Mich. 215; Connors v. Carp River Iron Co. 54 Mich. 168, 19 N. W. 938; Thompson v. Alameda County Supers. 111 Cal. 553, 44 Pac. 230; Cooley, Const. Lim. 6th ed. p. 182; Dill. Mun. Corp. 4th ed. §§ 86, 87. Mr. G. M. Valentine, with Mr. F. H. Ellsworth, for appellee: Defendant is not estopped from preventing complainant from extending its lines by having suffered complainant to use the streets. St. Louis v. Western U. Teleg. Co. 148 U. S. 92, 37 L. ed. 380, 13 Sup. Ct. Rep. 485; Doyle v. Mizner, 42 Mich. 332, 3 N. W. 968; Atty. Gen. v. Hanchett, 42 Mich. 436, 4 N. W. 182; Eaton v. Walker, 76 Mich. 579, 6 L. R. A. 102, 43 N. W. 638. The defendant city has the right to control its streets. The right to construct a telegraph and telephone line in and upon the streets or highways must be derived from express grant of authority. It cannot exist from implication merely. 25 Am. & Eng. Enc. Law, p. 752, title Telegraphs & Telephones. If two inconsistent acts be passed at different times the last is to be obeyed; and if obedience cannot be observed without derogation from the first, it is the first which must give way. Devine v. Cook County Comrs. 84 Ill. 590; People v. Bussell, 59 Mich. 109, 26 N. W. 306. A charter or special act passed subsequent with it will, to the extent of the conflict, to the general law and plainly irreconcilable operate as a repeal of the law by implication. Dill. Mun. Corp. § 88; People v. Hanrahan, 75 Mich. 612, 4 L. R. A. 751, 42 N. W. 1124; Hewitt v. Gage, 71 Mich. 287, 39 N. W. 56; Sherlock v. Stuart, 96 Mich. 201, 21 L. R. A. 580, 55 N. W. 845. If the governing power can prohibit a thing altogether, it can impose such conditions upon its existence as it pleases; and such provision is not a seizure of property, nor a deprivation of property. Robison v. Haug, 71 Mich. 42, 38 N. W. 668; Sherlock v. Stuart, 96 Mich. 197, 21 L. No contract relation exists between Ben- R. A. 580, 55 N. W. 845; Ex parte Christenton Harbor and the complainant. sen, 85 Cal. 208, 24 Pac. 747; Crowley ▼. Christensen, 137 U. S. 86, 34 L. ed. 620, 11|ously with this. In that case the records of Sup. Ct. Rep. 13. The telephone statute above referred to contains the proviso: "That the same shall not injuriously interfere with other public uses of the said streets, etc." The city authorities are the ones to decide that question. 4 Thomp. Corp. § 5480. The complainant's rights, if any, are subject to valid exercise of the police power by the city. Cooley, Const. Lim. 708; 8 Am. & Eng. Enc. Law, title Franchises, p. 621; Stone v. Mississippi, 101 U. S. 814, 25 L. ed. 1079; Boston Beer Co. v. Massachusetts, 97 U. S. 32, 24 L. ed. 991; Richmond, F. & P. R. Co. v. Richmond, 96 U. S. 521, 24 L. ed. 734; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Rep. 652; Patterson v. Kentucky, 97 U. S. 501, 24 L. ed. 1115; New Orleans Gaslight Co. v. Louisiana, Light & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep. 252. the common council showed a resolution adopted granting permission to the Tele phone & Telegraph Construction Company, while in this case the records of the common council do not show that such permission was granted. These two cities are contiguous to each other,-separated only by a river. The work of the construction company in each was begun and carried on at the same time, and the construction company and its assignee, the complainant, have ever since been in the enjoyment of the same rights in Benton Harbor as in St. Joseph. The complainant presented a petition to the common council of Benton Harbor couched substantially in the same language, and asking for the same privileges as it presented to the common council of the city of St. Joseph. The council denied the prayer of the petition. The court denied relief in this case while granting it in the other, because the records of the council did not show the grant of permission which it held was essential to the creation of a contract. The complainant, at the request of the council, furnished for the use of the city one telephone free of charge, and two other telephones at rates less than those charged to other subscribers for like service, which rates have been paid by the city. In the year 1893 complainant, on application of the city, granted permission to the city to carry its fire-alarm wires on the company's poles, which permission was accepted by resolution adopted by the council. The complainant gave evidence tending to show that the construction company in February, 1881, presented a petition to the common council, and that it was notified by the clerk that permission had been granted. The city clerk testiCt.fied that he could find no papers of any kind in his office, presented to the council from 1881 to 1887. Acts of Congress relating to interstate commerce, and the congressional acts relating to post roads, are subject to the general police powers of the state or municipality exercised for the public safety. Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989; Patterson v. Kentucky, 97 U. S. 507, 24 L. ed. 1117. A telegraph company engaged in domestic and interstate business is subject to such reasonable police regulations as the state may impose for securing convenience to the place. American Rapid Teleg. Co. v. Hess, 125 N. Y. 641, 13 L. R. A. 454, 26 N. E. 919; Electric Improv. Co. v. San Francisco, 45 Fed. Rep. 593, 13 L. R. A. 131; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Rep. 357; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273. Police power cannot be bargained away or legislated away. Thorpe v. Rutland & B. R. Co. 27 Vt. 149, 62 Am. Dec. 625; Com. v. Alger, 7 Cush. 84; Brick Presby. Church v. New York, 5 Cow. 540. Complainant contends that a contract exists between it and the city, arising out of the establishment of its system by the permission of the municipality, and the maintenance thereof for many years, and that the defendant is now estopped to deny such contract. In the view we take of the case, it is unnecessary to determine this question. Section 4 of the act (Acts 1883, p. 131) providing for telephone and messenger service companies reads as follows: "Every such corporation shall have power to construct and maintain lines of wire or other material, for use in the transmission of telephonic messages along, over, across, or under any public Where the legislature has given a company a general grant along the streets of the city, still the city, in the exercise of its police powers, can supervise and control the erection and maintenance of its poles, and it has been held that it may require a license for maintaining the poles upon the streets. Monongahela City v. Monongahela Elec-places, streets, and highways, and across or tric Light Co. 12 Pa. Co. Ct. 529; Dill. Mun. Corp. 698; Philadelphia v. Western U. Teleg. Co. 11 Phila. 32; Suburban Light & Power Co. v. Boston, 153 Mass. 200, 10 L. R. 497, 26 N. E. 447. Grant, Ch. J., delivered the opinion of the court: This case in its facts differs in only one particular from that of the same complainant against the city of St. Joseph, 80 N. W. 383, the opinion in which is filed simultane under any of the waters in this state, with all necessary erections and fixtures therefor: provided, that the same shall not injuriousÌy interfere with other public uses of the said places, streets, and highway, and the navigation of said waters; to construct, provide, and furnish instruments, devices, and facilities for use in the transmission of such messages, and to construct, maintain, and operate telephone exchanges and stations, and generally to conduct and carry on the business of providing and supervising com munication by telephone, and also the business of furnishing messenger service in cities and towns." 3 How. Anno. Stat. § 3718d. The statute also requires every such company to supply the public with telephones and telephonic service, to operate a telephone exchange, and to receive and transmit messages without discrimination, upon payment or tender of the usual or customary charges. Id. § 3718i. The complainant is engaged in interstate commerce, as its business extends into other states. The state has control over its public streets and highways, and may authorize their use for the purposes of travel and commerce without the permission of the municipalities. The state does not surrender to municipalities entire control over its streets and highways. They are under legislative control. Cooley, Const. Lim. 588. "They are for the use of the public in general, for passage and traffic, without distinction. The restrictions upon their use are only such as are calculated to secure to the general public the largest practical benefit from the enjoyment of the easement. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods." People v. Eaton, 100 Mich. 208, 24 L. R. A. 721, 59 N. W. 145, and authorities there cited. "No city or village has the power, by ordinance or by-law, to make the general laws of the state inoperative." People v. Kirsch, 67 Mich. 539, 35 N. W. 157. Where a water company is authorized by its charter to lay pipes and distribute water, it has a right of access to the streets for that purpose, to be exercised in harmony with the public convenience. The city may regulate its exercise so as to prevent injury to other interests, but cannot interfere with the reasonable exercise of such right. Grand Rapids v. Grand Rapids Hydraulic Co. 66 Mich. 606, 33 N. W. 749; Atlantic City Waterworks Co. v. Consumers' Water Co. 44 N. J. Eq. 427, 15 Atl. 581. Held, that an electric telegraph "is indispensable as a means of intercommunication, but especially is it in commercial transactions. Goods are sold and money paid upon telegraphic orders. Contracts are made by telegraphic correspondence, cargoes secured, and the movements of ships directed." Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708. The same statement now applies to the use of the telephone. It is as indispensable to commerce as is the telegraph. Telephone companies are subject to the same rules as common carriers. Delaware & A. Teleg. & Teleph. Co. v. Delaware Postal Teleg.-Cable Co. 3 U. S. App. 30, 50 Fed. Rep. 677, 2 C. C. A. 1. The same rule is held in Leloup v. Port of Mobile, 127 U. S. 640, 32 L. ed. 311, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380, holding that telegraphic communications are commerce, and that the state cannot impose a tax upon the occupation or business, or exact a license. The same rules apply to telephone companies. Southern Bell Teleph. & Teleg. Co. v. Richmond, 78 Fed. Rep. 858. Where the statute provided that "telephone companies | organized under its provisions for the purpose of constructing and maintaining telephone or magnetic telegraph lines are authorized to set their poles, piers, abutments, wires, and other fixtures along and across any of the public roads, streets, and waters of this state, in such manner as not to incommode the public in the use of such roads, streets, and waters" (Rev. Stat. 1879, 879), held, that the municipal authorities could regulate by ordinance the location, kind of posts, piers, and abutments, and height of wires, but that no other restrictions could be imposed than those provided by the law. State ex rel. Bell Teleph. Co. v. Flad, 23 Mo. App. 185. It will be observed that the act under which complainant is organized does not require the consent of the municipality to the construction of its lines. The reason of this is apparent. The business carried on by these corporations is not local, but extends over and outside the state. Where the business is purely local, the leg. islature, in authorizing the formation of these corporations, usually provides that it must be with the consent of the municipality. Such is the requirement in the case of tramways. 1 How. Anno. Stat. § 3527. So of street railways. Id. § 3548. So of water companies. Id. § 3115. So of electric-light companies. Id. § 4191. This Evidently it was not the intention of the legislature to permit municipalities to prevent telegraph and telephone companies from extending their business along the public highways and streets of the state. rule seems practically to be conceded by the learned counsel for the defendant, for they say that the complainant's rights, if it has any, are subject to the valid exercise of the police power of the city. Complainant concedes this to be the law. The learned circuit judge who tried the case also conceded it, but said that the city "was not confined merely to the exercise of its ordinary police powers." Evidently the city desired to impose other conditions, and in furtherance of this desire its council arbitrarily refused to permit complainant to erect its poles and stretch its wires. Such refusal was not based on the inconvenience of the public or the obstruction of its streets. Under this statute the sole authority of the municipality is the proper exercise of the police power, inherent in it, to protect the public from unnecessary obstructions, inconveniences, and dangers, and to determine where and in what manner complainant may erect its poles and stretch its wires so as to accomplish this result. It has no authority to impose other conditions. That authority rests in the legislature, the charter-making power. It is, however, insisted that act No. 215, Pub. Acts 1895, under which the defendant was incorporated, repeals the telephone act, in so far as it may be held to authorize the use of highways and streets for the erection of poles without the consent of the municipality. Section 14, chap. 22, of that act provides: "They [the council] shall have authority to regulate or prohibit the display, use, or placing of signs, advertisements, and | 2. An attempt to break and enter a dwelling house was not made by the fact that a person left his home with revolver and slippers, and traveled 9 miles towards the place where he intended to commit the crime, where he met a person with whom he had planned to commit the crime, and then provided himself with chloroform and loaded his revolver, but was prevented from committing the crime by being arrested. (Grant, Ch. J., dissents.) (December 12, 1899.) The facts are stated in the opinions. Mr. William C. Chadwick, for plaintiff in error: RROR to the Circuit Court for Hillsdale Connors v. Carp River Iron Co. 54 Mich. E County to review a judgment convict168, 19 N. W. 938. This case forcibly illus- ing defendant of attempting to break and trates the danger in holding general laws reenter a dwelling. Reversed. pealed by implication in granting charters to municipal corporations. Did the legislature intend by the above law for the organization of cities to confer upon those municipalities the power to annul the law in regard to telegraph and telephone companies, and to entirely prohibit the use of the telegraph and the telephone, which have become essential in commercial transactions? Clearly such an intention should not be attributed to the legislature unless the language of the law leads to no other conclusion. We see no Neither the facts charged in the information nor those proved at the trial constitute the offense charged, viz., attempt to commit burglary. Burglary at common law "is the breaking and entering, in the night, of another's dwelling house, with intent to commit a fel ony therein." Crim. Law, § 1531; 2 Am. & Eng. Enc. Law, 2 Bishop, Crim. Law, § 90; 2 Wharton, P. 659. Hence the gist of the offense at common law is (1) the breaking, (2) the entering, (3) in the night-time, and (4) with intent to commit a felony. difficulty in giving effect to both laws by The decree of the court below will be reversed, and decree entered in this court, in accordance with this opinion, directing the common council of the defendant to provide, by ordinance or otherwise, reasonable regulations for the erection of the poles and stretching the wires of the complainant. Complainant will recover the costs of both 2 Am. & Eng. Enc. Law, pp. 660–669, 686688. Under the statute of this state there must tent. (1) breaking, (2) entering, and (3) in Cole v. People, 37 Mich. 544; People v. Stewart, 44 Mich. 484; Tiffany, Crim. Law, 588; Harris v. People, 44 Mich. 305. The crime of burglary is not an offense against the person or property of another, but against the domicil, and to constitute an "attempt to commit burglary" there must be some overt, approximate act towards the consummation of the substantive offense. Attempt is such an intentional preliminary guilty act as will apparently result, in the usual course of natural events, if not hindered by causes outside of the actor's will, in a deliberate crime. 2 Wharton, Crim. Law, § 2686; 3 Am. & Eng. Enc. Law, p. 250, and notes; Bishop, Crim. Law, 8th ed. §§ 737-739. The mere preparations looking to the intended crime, but too far removed from it, are not indictable. 3 Am. & Eng. Enc. Law, p. 266. To procure a gun with intent to unlawfully shoot another is not an attempt to commit murder. 3 Am. & Eng. Enc. Law, p. 266; Reg. v. Cheeseman, 9 Cox, C. C. 100; People v. Murray, 14 Cal. 159. v. Bowers (S. C.) 15 L. R. A. 199; State v. Butler (Wash.) 25 L. R. A. 434, and note; also Foster v. Com. (Va.) 42 L. R. A. 589. |