Chamberlain v. Iowa Telephone Co.

• Decision Date: 12 February 1903
• Citation: 93 N.W. 596,119 Iowa 619
• Parties: D. S. CHAMBERLAIN, et al., v. IOWA TELEPHONE COMPANY, Appellant
• Court: Iowa Supreme Court

93 N.W. 596

119 Iowa 619

D. S. CHAMBERLAIN, et al., v. IOWA TELEPHONE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 12, 1903

Appeal from Polk District Court.--HON. S. F. PROUTY Judge.

ACTION to restrain the defendant from occupying the streets and alleys in the city of Des Moines with its telephone poles and wires. There was a hearing on the plaintiff's application for a temporary injunction, and an order made restraining the "defendant, Iowa Telephone Company, its officers agents, etc., from digging, excavating, obstructing erecting, or replacing telephone poles and posts, and from stringing or restringing wires and cables in, on, or along the streets of the city of Des Moines, Polk county, Iowa known as 'West Grand Avenue,' between West Seventeenth street and Park Lane, and that said writ of injunction be and remain in full force and effect from and after this date until otherwise ordered by this court." The defendant appeals.

Reversed.

E. E Cook, L. G. Richardson and N. T. Guernsey for appellant.

J. C. Hume for appellees.

OPINION

SHERWIN, J.

The plaintiffs are residents and taxpayers of the city of Des Moines, owning residences fronting upon West Grand avenue in said city, along which the defendant maintains a telephone line as a part of its plant extending over the city. This plant was originally built by the Des Moines Telephone Exchange Company about 1880, and in 1881 was sold to the Western Telephone Company, who in turn sold it to the Central Union Telephone Company, whose successor the defendant is. In 1891 the city council of Des Moines granted to the Central Union Telephone Company a five-year franchise, authorizing it to occupy the city streets and alleys with its poles and lines. This franchise, or the ordinance granting it, was accepted in writing by the telephone company, and its plant operated thereunder for the designated period. There has never been a renewal of the franchise, and since its expiration various efforts have been made by the city to oust the defendant from the use of its streets and alleys. The defendant refuses to vacate, on the ground that it has the right to so occupy the city's streets and alleys under authority given by section 1324 of the Code of 1873, as amended by chapter 104 of the Laws of the 19th General Assembly, as follows: "Any person or company may construct a telegraph or telephone line along the public highways of this state or across the rivers, or over any lands belonging to the state or to any private individual, and may erect the necessary fixtures therefor."

The question, then, is whether this statute gave telegraph and telephone companies the right to occupy the streets and alleys in cities and incorporated towns without authority from such cities and towns. That the legislature has, in the absence of constitutional restraint, full and paramount authority over all public ways, whether urban or rural, is well settled and conceded. It is also conceded that a city cannot, without express statutory authority, authorize the use of its streets by private persons, and it is not contended that such power had ever been given the city of Des Moines prior to the Code of 1897. The part of section 1324 of the Code of 1873 material to the question before us was the same as section 1348 of the revision and section 780 of the Code of 1851, and until its amendment in 1882 applied to telegraph companies only.

The intention of the legislature which passed this act is the first thing to be sought, and the meaning of the words "public highways," as used therein, must depend on this intent, as it can be gathered from either the words, the context, the subject-matter, the effect and consequences, or the spirit and reason of the law. 1 Cooley's Blackstone, 59; 15 Am. & Eng. Enc. Law, 350 (2d Ed.) It is the general holding that "the term 'highway' is the generic name for all kinds of public ways, including county and township roads and streets and alleys." Elliott on Roads and Streets, 1 (2d Ed.); Stokes et al., v. The County of Scott, 10 Iowa 166; Sachs v. City of Sioux City, 109 Iowa 224, 80 N.W. 336. That the term does not, in all instances, include or mean streets and alleys, may be admitted, but that it is broad enough to include them cannot be denied. When this act first became law, telegraphy was in its infancy, the Morse system having been first used for commercial purposes between Baltimore and Washington in 1844. This state was at that time in its infancy also, having but few cities and incorporated towns, none with large populations, and having a vast area of productive land wholly unoccupied, over which no highways had then been regularly laid out or established. The commercial interests of the state were at that time confined to a comparatively small territory, and were generally located along the great water highways bounding the state on the east and on the west. Its agricultural interests were small, and limited in area.

It is a matter of common knowledge that the first great use to which the telegraph was put was for commercial purposes, and that to accommodate the public, and to secure this business, its terminals must be located in the larger business centers, where, as a matter of fact, they have always been located. That was the condition when the act in question was first passed, and it has continued up to the present moment; and that it was fully recognized by that and subsequent legislatures does not admit of doubt. If this be conceded,--as we think it must be,--what was the purpose and scope of the act? It cannot be possible that the legislature passed it with the thought or intent that the words "public highways" meant only rural ways, because the use of rural ways only for the grant would be of no benefit to the public or to the owners of the lines. Cities and incorporated towns had no power to permit such companies to use their streets and other public places for their poles and lines, and, unless that power was given in the act in question, they had no right to enter thereon. This condition of the law and its result, the legislature is presumed to have known, and it will also be presumed that the law was framed and enacted to meet the conditions as they then existed.

It is argued, however, that, because of the statutory definition of the word "highway," the grant must be limited to the use of rural ways. The dictionary statute (section 26, paragraph 5, of the Code of 1851), which has been continued to the present time, was as follows: "The words 'highway' and 'road' include public bridges and may be held equivalent to the words 'county-way,' and 'county-road,' 'common road,' and 'state road.'" The research of counsel has given us the benefit of the construction placed upon similar statutes in many other states, but we think it would serve no useful purpose to review the decisions, because they are all dependant upon the wording of the statutes the courts were considering, and upon the legislative or judicial construction given them, while we must be governed by the construction which has been given our own statute. The language of the act is that the word "highway" "may be held equivalent to," etc.; and, were there no contemporaneous use of the word by the legislature which indicated a different intention or understanding, it might be said that the definition excluded streets and alleys. An examination, however, of the enactments of different legislatures granting powers to cities and towns clearly shows that the definition was not so intended, and has not been so understood. The words "highway" and "streets" have time and time again been used interchangeably by the law makers. A most notable instance of this is to be found in section 466 of the Code of 1873, which gives to cities and incorporated towns the power to "construct sidewalks, to curb, pave, gravel, macadamize, and gutter any highway or alley therein." It will be noticed that in this section the word "streets" is not used at all, and yet it was the only statute under which such improvements might be made on the streets of a city. Can the meaning of the word "highway," as there used, be doubted for a moment? We think not.

The case of Stokes v. The County of Scott, supra, is cited as giving a construction of the statute which would exclude streets and alleys, but we do not so understand it. In that case it was contended that the word "road" meant "railroad," and it was held that the word could not be so construed, because that was evidently not the intention of the legislature, and it is said "that the word 'road,' according to Webster, applies generally to highways, and as a generic term includes highway, street, and lane." In Marks v. The County of Woodbury, 47 Iowa 452, the only question was whether the township trustees of the township in which Sioux City was situated had the power to levy a road tax upon the property within the city. It was held that they had not because the city council had the care and control of all "highways and streets," which necessarily excluded the care and control of any other officers. Clark v. The Town of Epworth, 56 Iowa 462, 9 N.W. 359, holds that a city or town...