Bartlesville Elec. Light & Power Co. v. Bartlesville Interurban Ry. Co.

• Decision Date: 10 May 1910
• Citation: 109 P. 228,26 Okla. 453,1910 OK 116
• Parties: BARTLESVILLE ELECTRIC LIGHT & POWER CO. v. BARTLESVILLE INTERURBAN RY. CO.
• Court: Oklahoma Supreme Court

109 P. 228

26 Okla. 453, 1910 OK 116

BARTLESVILLE ELECTRIC LIGHT & POWER CO. v. BARTLESVILLE INTERURBAN RY. CO.

Supreme Court of Oklahoma

May 10, 1910

Syllabus by the Court.

An ordinance of a municipal corporation granting to a corporation authority to use the streets, alleys, and public grounds of a city for the purpose of constructing and operating an electric light and power plant to furnish light and power to a city and its inhabitants confers privileges which are exclusive in their nature against all persons upon whom similar rights have not been conferred; and any person or corporation attempting to exercise such right, without legislative authority or sanction, invades the private property rights of the corporation to whom such franchise has been granted, and may be restrained at the instance of the owner of the franchise.

The requirement of a statute that the subject of any ordinance enacted by a city council shall be clearly expressed in the title is complied with where the title calls attention to the general subject of the legislation in the ordinance, and does not tend to mislead or deceive the people or council as to the purpose or effect of the legislation, or to conceal or obscure the same.

The title of an ordinance reciting that its object was to grant to a certain person "the right to construct, maintain and operate an electric light and power plant" is sufficient to carry a grant of the right to use the streets and alleys of the city for the construction of lines and poles thereon for the purpose of operating the plant.

Error from District Court, Washington County; John J. Shea, Judge.

Action by the Bartlesville Electric Light & Power Company against the Bartlesville Interurban Railway Company. Judgment of dismissal, and plaintiff brings error. Reversed and remanded.

Veasey & Rowland and Kenneth H. Davenport, for plaintiff in error.

George Campbell & Ray, for defendant in error.

HAYES J.

Plaintiff in error instituted this action in the district court of Washington county to obtain a writ of injunction restraining defendant in error from using the streets, lanes, and alleys of the city of Bartlesville for the purpose of erecting thereon a system of poles and wires for the purpose of supplying the said city of Bartlesville and its inhabitants with electric light and power. A temporary injunction was granted. Thereafter a motion to dissolve the temporary injunction and a demurrer to plaintiff's petition were filed. The motion and demurrer were heard and considered jointly by the court without the introduction of any evidence, and were sustained. The temporary injunction was dissolved, and the cause dismissed. The substantial and material facts of the petition admitted by the demurrer are That the assignee of plaintiff did on the 16th day of November, 1904, obtain from the council of the city of Bartlesville, then a municipal corporation of the Indian Territory, a franchise for a period of 21 years, granting to plaintiff's assignee the right to put, place, and maintain in any of the streets, alleys, and public places of said city poles, wires, and all other appurtenances necessary to supply and furnish electric light and power to said city and the inhabitants thereof. The franchise was duly accepted by the grantee, and immediately thereafter assigned to plaintiff. Plaintiff has installed in said town, and is operating and maintaining, an electric light and power plant and is supplying light and power to the town and its inhabitants in accordance with the provisions of the franchise. A copy of the franchise is attached to the petition, and by its terms it attempts to grant to plaintiff's assignee the exclusive right to use the streets and alleys of the city for the purposes therein mentioned. Defendant is now attempting, without authority from the city, to use the streets, lanes, and public places of the city for the purpose of erecting thereon and along same a system of poles and wires for supplying said town and its inhabitants with electric light and power. Plaintiff alleges that such attempted use of the streets by defendant is in conflict with its rights under its franchise, and that it will suffer irreparable injury and damage by reason thereof, and that the violation of its right by defendant will result in a multiplicity of suits, and that it has no plain, speedy, and adequate remedy at law. Defendant contends that the exclusive feature of plaintiff's franchise is void, for the reason that the city council was without authority to grant an exclusive franchise.

Plaintiff does not insist in this court that the exclusive provision of its franchise is valid, but it seeks to maintain its action upon the theory that, notwithstanding it has no exclusive franchise and the city has authority to grant a similar franchise to other persons, the use of the streets, alleys and public places of the city by defendant without legislative authority from the municipal corporation is such an infringement on plaintiff's rights that it is entitled to injunctive relief. It is not alleged in the petition that the use of the streets by defendant for the purpose of constructing and operating its electric light plant will injure the physical property of plaintiff, or interfere with the operation thereof. The sole injury which it complains will result from defendant's acts is the encroachment upon its rights to maintain or operate its plant and furnish light and power to the inhabitants of the city, resulting from the unlawful competition of defendant by a similar use of the streets without legislative authority therefor. In support of its contention that plaintiff has no standing in court upon this ground, defendant relies principally upon Coffeyville Mining & Gas Company v. Citizens' Natural Gas & Mining Company, 55 Kan. 173, 40 P. 326. In that case the only question involved was whether a corporation organized for the purpose of supplying a city with natural gas and authorized by ordinance passed by the city council to use the streets and public grounds of the city for the purpose of laying its mains and pipes had any standing in court to test the validity of an ordinance...