City of St. Louis v. Bell Tel. Co.

• Decision Date: 20 December 1888
• Citation: 96 Mo. 623,10 S.W. 197
• Parties: CITY OF ST. LOUIS v. BELL TEL. CO.
• Court: Missouri Supreme Court

10 S.W. 197

96 Mo. 623

CITY OF ST. LOUIS v. BELL TEL. CO.

Supreme Court of Missouri.

December 20, 1888.

TELEPHONE COMPANIES — REGULATION OF CHARGES — POWERS OF MUNICIPALITIES.

Neither under its authority to regulate the use of streets, nor section 26, art. 3, of its charter, empowering the mayor and assembly "to license, tax, and regulate" various professions and businesses, nor the general welfare clause permitting the passage of all such ordinances, not inconsistent with the provisions of the charter or the laws of the state, as may be expedient in maintaining the peace, good government, health, and welfare of the city, its trade, commerce, and manufacture, can the city of St. Louis regulate by ordinance the tariff of charges of a telephone company.

Appeal from St. Louis court of criminal correction; CHARLES F. CADY, Judge.

Hitchcock, Madill & Finkelnburg, for appellant. Leverett Bell, for respondent.

BLACK, J.

This was a prosecution against the Bell Telephone Company of Missouri for the violation of an ordinance which provides that "the annual charge for the use of the telephone in the city of St. Louis shall not exceed $50." A violation of the ordinance is made a misdemeanor, and subjects the offender to a fine of not less than $50, nor more than $500. The defendant appealed from a judgment assessing a fine of $300 against it. The defendant is a corporation organized under article 5 of chapter 21 of the Revised Statutes of this state, and hence has all the powers therein conferred upon such corporations. Among others, they have the power to own and operate lines of telephone, to make such reasonable charges for the use of the same as they may establish, to erect their poles along and across public roads and streets, to condemn private property for a right of way, and they are charged with the duty of receiving and transmitting messages with impartiality, and in good faith. The defendant neither affirms nor denies the power of the state itself to fix a maximum rate of charges, but does contend that no such power has been delegated to the city of St. Louis. The defendant's property, consisting of poles, wires, fixtures, and the like, is, of course, private property, but the property is devoted to public use; and since the defendant has conferred upon it the special franchises and privileges, including the right of eminent domain, the corporation is subject to public regulations; and we shall take it for granted that the state has the power to fix and prescribe a maximum rate for telephone service. That this power could be delegated to municipal corporations is equally clear. The ordinances of the city of St. Louis must not be in conflict with the general laws of the state. If the city has had this power to fix rates conferred upon it, then an ordinance which fixes reasonable maximum rates would not be in conflict with the law under and by virtue of which the defendant is organized, and which law constitutes its charter.

A telephone company, when once its poles are planted, and wires stretched on or over the streets of a city, becomes, in effect, a monopoly, and the company must submit to such reasonable regulations as the municipal corporation has power to prescribe. The important question, then, is whether the city of St. Louis has the power to enact the ordinance in question, — the power to fix reasonable maximum charges for telephone service, — and, nothing to the contrary being shown in this case, it is assumed that the rate fixed is reasonable; so that the question is narrowed down to one of power on the part of the city to fix telephone rates at all. If the city has such power, it must be found in a reasonable and fair construction of its charter. Judge Dillon makes this full and comprehensive statement of the rule as to municipal powers: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: (1) Those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation, — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied." 1 Dill. Mun. Corp. (3d Ed.) § 89. See, also, St. Louis v. McLaughlin, 49 Mo. 562. The rule, as before stated, is in accord with what we said in City of St. Louis v. Herthel, 88 Mo. 128. The city places some reliance on its general power to regulate the use of the streets. This power extends to new uses as they spring into existence from time to time, as well as to uses common and known at the time of the dedication or grant of the power to the municipal corporation. Ferrenbach v. Turner, 86 Mo. 416. The erection and maintenance of...