City of Hannibal v. Missouri & K. Telephone Co.

• Decision Date: 08 May 1888
• Citation: 31 Mo.App. 23
• Parties: CITY OF HANNIBAL, Respondent, v. MISSOURI & KANSAS TELEPHONE COMPANY, Appellant.
• Court: Missouri Court of Appeals

31 Mo.App. 23

CITY OF HANNIBAL, Respondent, v. MISSOURI & KANSAS TELEPHONE COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 8, 1888

Appeal from the Hannibal Court of Common Pleas, HON. THOMAS H BACON, Judge.

Reversed.

HARRISON & MAHAN, for the appellant: Appellant's objection to the introduction of any testimony on the complaint should have been sustained. The complaint did not state facts sufficient to constitute a cause of action. The ordinance " concerning the use of certain streets," approved April 21, 1886, and " to effect the removal of posts and poles" of appellant from Broadway and Main streets, in the city of Hannibal, is in direct conflict with section 879 Revised Statutes, and did not give appellant an opportunity to be heard in regard to an alteration, as required by law. Appellant had a right on said streets, while this ordinance clearly contemplated an entire removal of all the poles and posts therefrom. Rev. Stat., sec. 888; State ex rel. v Flad, 23 Mo.App. 185. The city council of Hannibal did not have the authority to lay an embargo upon and exclude appellant from the use of any street. Rev. Stat., sec. 879; Tel. Co. v. Town, 31 N.J.Eq. 627; Tel. Co. v. City, 8 Am. & Eng. Corp. Cas. 538, 544. Respondent does not contend that the poles were erected in such a manner as to incommode the public in the use of the streets. No such charge was ever made. They were authorized, erected, and regulated both by legislative and municipal enactment, and were required by the public to promote trade and facilitate communications in daily transactions of business between the citizens of one part of the city with another. It is a proper use of the streets, and the city of Hannibal cannot legally prevent it. Building Ass'n v. Telephone Co., 88 Mo. 258; Gay v. Telegraph Co., 12 Mo.App. 485. The ordinance approved May 15, 1886, " notifying, ordering, and requiring appellant to remove and take away from each and every public sidewalk constituting a part of, or being in or on any of the public streets, avenues, or alleys, within thirty days, all posts, piers, etc.," in consideration of their alteration; and levying a fine on appellant for refusing, is in conflict with statutes, in violation of appellant's rights, and, therefore, void. While the statute permits respondent to regulate, it only contemplates an alteration when a pole or poles " incommode the public in the use of the street." It never was intended to permit an arbitrary and sweeping removal without cause, like that attempted here. Appellant had the right to use any and all public streets. Rev. Stat., secs. 879, 888; Telephone Co. v. Mayor, 16 Am. & Eng. Corp. Cas. 289. Such an ordinance must be reasonable and fair. It cannot interdict, lay an embargo, prohibit, or confiscate. Property rights are not subject to the uncontrolled and arbitrary will of a common council. All ordinances and regulations, to be valid for any purpose, must be capable of construction, and must be construed in conformity to constitutional principles, and in harmony with the general laws of the land; and an ordinance which violates principles of legal and equal rights is void. In re Frazee on Habeas Corpus, 15 Am. & Eng. Corp. Cas. 13; Tel. Co. v. Town, 31 N.J.Eq. 627. The ordinance approved May 15, 1886, is unreasonable, unjust, prohibitory, oppressive, and void. All the facts and circumstances, as shown by the evidence, clearly indicate that its enforcement would destroy appellant's property, confiscate its business, and drive it from the city. Corrigan v. Gage, 68 Mo. 541; Kelley v. Meeks, 87 Mo. 396, 401; State ex rel. v. Beattie, 16 Mo.App. 131, 147; Dill. Mun. Corp. [3 Ed.] sec. 319; Field on Corp., sec. 296; Dunham v. Rochester, 5 Cow. 462; Commissioners v. Gas Co., 12 Pa.St. 318; Commonwealth v. Worcester, 3 Pick. 462; Clason v. Milwaukee, 30 Wis. 316; Commonwealth v. Robertson, 5 Cush. 438; Mayor v. Thorne, 7 Paige 261; Mayor v. Winfield, 8 Hump. 707; City v. Weber, 44 Mo. 547. There are two other corporations engaged in a similar business to appellant in the city of Hannibal, having their poles and posts located in like and similar places on the public streets, one of said corporations so erecting said poles and posts before, and the other after, appellant. This ordinance is directed solely against appellant, and is, therefore, a special and unwarranted discrimination, made in contravention of common right, and is illegal and void. City v. Spiegel, 90 Mo. 587; Mayor v. Althrop, 5 Cold. [Tenn.] 555; Ex parte Hanson, 28 F. 126, 129; Dillon Mun. Corp. [3 Ed.] secs. 322, 325. The instruction given by the court of its own motion erroneously declared the law. It asserts that the part of the ordinance requiring the removal of the telephone poles is valid, but that part of the ordinances re-locating the poles three hundred feet apart is unreasonable and void. This is a clear misconception of the ordinance; the first and second sections thereof are so mutually connected with and dependent upon each other as conditions and considerations for each other that they must be taken and considered as a whole--they cannot be divided, but must stand or fall together. City v. Railroad, 89 Mo. 44; S. C., 14 Mo.App. 221, 225; Austin v. Murray, 16 Pick. 121, 126; Dillon Mun. Corp. [3 Ed.] sec. 421; Warren v. Mayor, 2 Gray [[Mass.] 84; Commonwealth v. Hitchings, 5 Gray 482; Commonwealth v. Stoddard, 2 Cush. 562; Municipality v. Morgan, 1 La.Ann. 111, 116; Commonwealth v. Dow, 10 Met. 382; Rogers v. Jones, 1 Wend. 237; Sheldon v. Mayor, 30 Ala. 540; Thomas v. Mt. Vernon, 9 Ohio 290; Grant on Corp. 88.

THOMAS F. GATTS and DAVID H. EBY, for the respondent: The ordinance " " " " concerning the use of certain streets," approved April 21, 1886, expressly provided that the matter to be considered by the council would be the alteration in the location of the poles, and expressly gave to appellant an opportunity to be heard in regard to such proposed alteration. The ordinance did not contemplate the removal of the poles from any street, nor to lay an embargo upon or exclude appellant from any street, and was not in conflict with either of the statutory provisions cited by appellant. Rev. Stat., secs. 879, 888. The city of Hannibal had the right to enforce the legislative limitation of the use of streets, within its corporate limits, by telephone corporations. State ex rel. v. Flad, 23 Mo.App. 185. The expression " in such manner as not to incommode the public in the use of such roads, streets, and waters," contained in ?? 879, Revised Statutes, can relate only to the original location of telephone lines. What may have been a proper location ten years ago, may, owing to the migratory character of " business centers," the increase of population, the competition and requirements of other industries, together with other causes, to-day be highly objectionable and demand proper regulation and control. It was not necessary that, before the city of Hannibal could alter the location of the telephone poles on Broadway, the original location of such poles should have been such as to " incommode the public." The ordinance approved May 15, 1886, so far as it required the removal of the poles from the sidewalks, was in no respect unreasonable, unjust, prohibitory, or void. Tel. Co. v. City, 1 A. 184; Forsythe v. Tel. Co., 12 Mo.App. 494; Horr & Bemis on Municipal Ordinances, sec. 244 a, p. 239, sec. 128, p. 92; Tel. Co. v. Chicago, 16 F. 309; S. C., 11 Biss. 539; Commonwealth v. Boston, 97 Mass. 555; Tel. Co. v. Newark, 10 East Rep. 122; State ex rel. v. Flad, 23 Mo.App. 185; Neier v. Railroad, 12 Mo.App. 25; Horr and Bemis on Municipal Ordinances, sec. 128, p. 92. Said ordinance was not a " special and unwarranted discrimination," as there was only one company operating telephone lines in the city. Appellant had no perpetual easement in the sidewalks for the purpose of maintaining its poles. If appellant had removed the poles from the sidewalks, the ordinance would have been complied with. Its provisions are clearly separable. The appellant could have re-located its poles at the corners of the streets, and also at necessary intervening points; for if, as the court below held, that part of the ordinance forbidding intervening poles was unreasonable and void, appellant could still, irrespective of the provisions of the ordinance, have availed itself of the provisions of section 888, Revised Statutes, which it invokes. It cannot, therefore, complain. A fair doubt should be resolved so as to effectuate the ordinance. Horr & Bemis on Municipal Ordinances, 109; Railroad v. City, 47 N. J 286; Page v. City, 20 Mo. 136, 143.

OPINION

ROMBAUER P. J.

The plaintiff is a municipal corporation and the defendant is a telephone company incorporated under article five, chapter twenty-one, of the Revised Statutes.

It appears that in 1879-80 the Hannibal Telephone Company and its grantors erected, under authority of a city ordinance authorizing the erection and maintenance of a telephonic exchange in said city, a number of telephone poles, including the poles in controversy, along Broadway, which poles have been used ever since by said company and its successors in connection with said telephonic exchange. The defendant is a successor of said Hannibal Telephone Company.

In May, 1886, some controversy arising between the city and defendant as to the defendant's compliance with the original ordinance authorizing the erection of such poles, the following ordinance was passed by the city council, and approved by the mayor:

" An ordinance requiring the removal from the sidewalks of the city of Hannibal, of the posts, piers, and abutments of the Missouri and Kansas Telephone Company.

Be it ordained by the city council of the city of...