City of Bessemer v. Birmingham Elec. Co.

• Decision Date: 28 March 1946
• Docket Number: 6 Div. 405.
• Citation: 248 Ala. 345,27 So.2d 565
• Parties: CITY OF BESSEMER v. BIRMINGHAM ELECTRIC CO.
• Court: Alabama Supreme Court

27 So.2d 565

248 Ala. 345

CITY OF BESSEMER v. BIRMINGHAM ELECTRIC CO.

6 Div. 405.

Supreme Court of Alabama

March 28, 1946

Rehearing Denied Oct. 24, 1946. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Wm. S. Pritchard, of Birmingham, H. P. Lipscomb, Jr., of Bessemer, and Victor H. Smith, of Birmingham, for appellant.

White, Bradley, Arant & All, of Birmingham, for appellee.

The ordinances of the City of Bessemer here involved are as follows:

'An Ordinance granting right of way to Bessemer Electric Company and regulating construction of poles, wires, etc.

'Be it ordained by the Board of Mayor and Aldermen of the City of Bessemer:

'Section 1. That permission and authority be, and the same is hereby granted unto Bessemer Electric Company of the City of Bessemer, in the State of Alabama, and to their associates and assigns, to erect, construct, complete and operate electric light works, to furnish light and power, and for use for chemical and mechanical purposes in the City of Bessemer and the said grantee or their employees are hereby authorized and empowered to use the streets, avenues, lanes, alleys, public grounds and sidewalks belonging to or under the control of said City, as it is now laid out or as it may hereafter be laid out, extended or enlarged, for the purpose of conveying electricity in and through the City for the use of the City and its inhabitants for the purposes above stated; and the right of way is hereby given to said grantee through such streets, avenues, lanes, alleys, public grounds and sidewalks for erecting the necessary poles and laying the necessary wires and other appliances in, through, under and over the said streets, alleys, avenues, lanes, and public grounds and sidewalks for the purposes herein stated; provided, that said streets, avenues, lanes, alleys, public grounds and sidewalks shall not be unnecessarily and continuously obstructed; and they shall be without delay placed in as good repair and condition as before said streets were so obstructed. And, provided, further, that the said City reserves the right to require all poles to be placed on the sidewalks and to designate where they shall be placed at all places along the right of way herein granted that there may be sidewalks, and also to designate on what portion of the avenues, lanes, alleys, public grounds, sidewalks and streets they shall be placed.

'And provided, further, that the City reserves the right to regulate what length of poles shall be used at any and every point of the right of way herein granted, and when and how the lights shall be hung, including those lights already in use.

'Section 2. As a further condition to this grant, the grantees are required at all times to conform to the rules of the Insurance Association in reference to electric lights.

'Section 3. Provided further, that the City hereby reserves the right to use the top arms on all the electric poles for the purpose of running a fire alarm telegraph.

'Section 4. That unless said grantee conforms to all the conditions and requirements of this ordinance, that the right of way herein granted shall be forfeited and this ordinance null and void.

'Section 5. That this ordinance take effect and be in force after its passage and due publication.

'Passed April 15, 1890.

'J. C. Houston,

Chas. F. Hard, Mayor.'

'City Clerk.

'An Ordinance to ratify and confirm the franchise of the Bessemer Electric Company to own and operate an electric plant in the City of Bessemer, Alabama, granted by an ordinance adopted the 15th day of April, 1890, and to extend and enlarge the same, and to authorize its transfer and assignment to the Birmingham Railway, Light & Power Company.

'Section 1. Be it enacted by the Board of Mayor and Aldermen of Bessemer, that the franchise heretofore granted to the Bessemer Electric Company by ordinance adopted April 15th, 1890, granting unto the said Bessemer Electric Company and its assigns the right to erect, construct, complete and operate electric light works to furnish light and power and for use for chemical and mechanical purposes in the

City of Bessemer, be and the same is hereby ratified and confirmed and all the rights and powers and privileges granted the said Bessemer Electric Company are hereby recognized, ratified and confirmed unto said Bessemer Electric Company and its assigns to be held and exercised until the transfer herein below named.

'Section 2. Be it further ordained, that the Birmingham Railway, Light & Power Company, a body corporate, be and is hereby authorized and employed to take and receive from said Bessemer Electric Company by assignment, transfer or conveyance said franchise and all the property, rights, powers and privileges now held, owned or enjoyed by the said Bessemer Electric Company and in consideration of improvements to be made in the system, that the said Birmingham Railway, Light & Power Company be and it is hereby vested and clothed with all rights, powers and privileges of the said Bessemer Electric Company held or enjoined by virtue of the said franchise shall have the right to own and operate electric light works and to extend and enlarge the same and to furnish light, heat and power for public and private consumers for use for chemical purposes in the City of Bessemer, Ala., and that the said assignee or transferee be, and is hereby authorized and empowered to use the streets, avenues, alleys and sidewalks and public grounds belonging to or under the control of the City of Bessemer as now laid out or as may hereafter be laid out, extended or enlarged for the purpose of conveying electricity in and through the City for its own use and for the use of the City of Bessemer and its inhabitants; and the said Birmingham Railway, Light & Power Company shall from and after the passage of this ordinance and due publication thereof have the further right, privilege and power to erect poles and to run wires in, through, over and under such streets and avenue now operated by dummies as now are or may hereafter be within the corporate limits of said City for the purpose of operating electric or other cars in and over said streets and avenues, the said poles and wires to be used by the said Birmingham Railway, Light & Power Company for the purpose of supplying light, heat and power as hereinabove stated and for running and operating electric cars in said City, one or both, and the said transferee shall have the right to construct electric railways either single or double track and operate electric or other cars in and over the streets and avenues of said City for the purpose of serving the public carriers over the following streets and avenues not now occupied. Begin at the present Dummy Line (19th) Nineteenth Street and Caroline Avenue, thence along Nineteenth Street to Dartmouth Avenue, thence along Dartmouth Avenue in an easterly direction to a connection with the present Dummy Line at or near Twenty-seventh Street.

'Section 3. Be it further ordained, that this Board shall make all such laws and ordinances as may be necessary and proper to protect said Bessemer Electric Company prior to said transfer and said Birmingham Railway, Light & Power Company before and after such transfer in all the rights, powers and privileges which they may respectively have under said franchise and under this franchise.

'Section 4. Be it further ordained, that this ordinance shall take effect and be in force immediately after its passage and legal publication.

'Section 5. The Birmingham Railway, Light & Power Company shall lay the tracks of said line upon grade as established by the City Engineer and ballast and surface with such material as shall be satisfactory to the City Engineer and shall maintain the space between the rails and for (18) eighteen inches on either side of the rails with such material as the City uses on the balance of the streets or avenues thus occupied.

'Section 6. Be it further ordained, that the City shall have the right and privilege to use the posts or poles of the said Birmingham Railway, Light & Power Company for wires or other appliances for police or fire alarms.

'Section 7. The said Birmingham Railway, Light & Power Company in accepting this franchise agrees to alternate the service via the Caroline Avenue and Dartmouth Avenue routes or this franchise becomes

void so far as relates to Dartmouth Avenue and that part of (19th) Nineteenth Street over which they at present have no franchise.

'Passed Nov. 12th, 1901.

'(Seal)

'Approved Nov. 12th, 1901.

'Edgar L. Mitchell, Clerk.

'Thomas T. Huey, Mayor.

'Ordinance No. 867.'

An Ordinance providing that the Birmingham Electric Company is without right or franchise to operate within the City of Bessemer, Alabama, to require removal of the physical properties of said Electric Company from said City, to require said Electric Company to cease and desist from its operations in said City, to cancel, annul and remove any rights, franchises or privileges or claimed rights, franchises and privileges of said Electric Company in said City, to establish reasonable rental value to be placed on public streets of said City now being used by said Electric Company, and to authorize such action as may be necessary or expedient for removal of the physical properties of said Electric Company from the public streets of said City.

'Be it ordained by the City Council of the City of Bessemer, Alabama, as follows:

'1. That whereas the Birmingham Electric Company, a corporation, and its predecessors in title, is and has been operating in said City furnishing electric lights and power to the inhabitants thereof, and

'2. Whereas, said Electric Company and its predecessors in...