City of Carthage v. Garner

• Decision Date: 26 February 1908
• Citation: 209 Mo. 688,108 S.W. 521
• Parties: CITY OF CARTHAGE v. GARNER et al.
• Court: Missouri Supreme Court

108 S.W. 521

209 Mo. 688

CITY OF CARTHAGE v. GARNER et al.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

1. MUNICIPAL CORPORATIONS—USE AND REGULATION OF PUBLIC PLACES—STREETS—POWER TO CONTROL AND REGULATE ERECTION OF TELEPHONE POLES IN STREETS.

By the direct provision of Rev. St. 1899, § 5837 [Ann. St. 1906, p. 2951], the council of cities of the third class may enact proper legislation to regulate the erecting of telephone, telegraph, and electric light poles and the making of excavation in any street, alley, etc., in the city.

2. SAME—TORTS—OBSTRUCTION IN THE STREETS —DUTY TO REMOVE DEFECTS.

The city has control of the streets and owes a duty to the public to keep them in reasonably safe condition, and is liable for damages resulting from its failure to do so.

3. CONSTITUTIONAL LAW — OBLIGATION OF CONTRACTS—CONTRACTS OF MUNICIPALITIES—RIGHT TO USE STREETS.

The Revised Ordinances of 1901 of the city of Carthage (chapter 14, art. 6, §§ 553, 554) make it a misdemeanor to excavate in streets, sidewalks, etc., without first making application to the city clerk for permit to do the work, which permit shall be granted, unless the excavation is expressly prohibited by the city ordinance. Held, in a prosecution of employés of a telephone company for erecting telephone poles without a permit, that the ordinance did not impair the company's franchise to erect and maintain a telephone line in the streets, but was a valid police regulation of the use of the streets.

4. MUNICIPAL CORPORATIONS—DELEGATION OF POWER BY MUNICIPALITY.

The ordinance was not a delegation of legislative power to the city clerk, since the issuing of the permit was not discretionary, but was a ministerial act which the clerk could be compelled to perform if he arbitrarily refused.

5. SAME—REASONABLENESS OF REGULATION.

The ordinance was not on its face or under the circumstances an unreasonable police regulation of the use of the streets.

6. SAME—SURRENDER OR RESTRICTION OF POWER BY CONTRACT OR LICENSE.

A corporation must exercise its charter and franchise rights subject to the reasonable police regulation of the city, and a charter or contract with the city undertaking to abrogate or abridge its police power in its charter is void in so far as it infringes upon the exercise of that power.

7. SAME — TELEGRAPHS AND TELEPHONES — REGULATION AND OPERATION — MUNICIPAL REGULATION.

The Revised Ordinances of 1901 of the city of Carthage (chapter 14, art. 6, §§ 553, 554), making it a misdemeanor to excavate in the streets, etc., without first making application to the city clerk for permit to do the work, are not repugnant to the legislative policy of the state as manifested by Rev. St. 1899, c. 12, art. 6 [Ann. St. 1906, pp. 1025-1033], relating to the incorporation of telephone companies and their rights, duties, and liabilities to the charters and franchises, since the ordinance took away no charter or rights from such companies, but are only a reasonable police regulation of the manner of exercising such rights.

Appeal from the Circuit Court, Jasper County; Hugh Dabbs, Judge.

R. W. Garner and Joe Lawson were convicted of violating an ordinance prohibiting excavations in the city streets without a permit, and they appeal. Affirmed.

McReynolds & Halliburton, for appellants. J. D. Harris, for respondent.

GRAVES, J.

This is a prosecution for the violation of an ordinance of the city of Carthage, instituted by proper information of the city attorney before the police judge of said city. Defendants were convicted in the police court, and appealed to the circuit court, wherein was had a trial upon an agreed statement of facts, at which trial defendants were again convicted by that court, and this appeal is the result. The case reaches this court by reason of a constitutional question.

The city of Carthage is a city of the third class. In 1895 said city passed an ordinance granting to the American Electric Telephone Company of Kokomo, Ind., the right to construct, operate, and maintain telephone lines and operate a telephone exchange in said city, which said franchise and right were duly accepted by said company. This ordinance is quite lengthy, and will not be set out, but such portions as may become necessary will be noted later. The remaining portion of such agreed statement of facts, which in addition to outside facts contains sections of different ordinances brought into question, is as follows:

"That said American Electric Telephone Company accepted said ordinance and complied with the terms thereof, and constructed an electric telephone system in the said city, and in so doing erected and constructed a telephone line along and on Garrison avenue and Chestnut street in said city where they cross each other, with the necessary poles, wires, etc., to operate same. * * *

"(4) That the Home Telephone Company is a corporation, duly incorporated in August, 1902, under article 6, chapter 12 of the Revised Statutes of Missouri of 1899 [Ann. St. 1906, pp. 1025-1033].

"(5) That the Home Telephone has by purchase and assignment acquired all the rights and liabilities of the American Electric Telephone Company under said Ordinance No. 317.

"(6) That defendant Garner is superintendent of the Home Telephone Company, and defendant Joe Lawson is a foreman of said company in the work of constructing, maintaining, and repairing of its telephone lines in said city.

"(7) That in the Revised Ordinances of said city for the year 1901, under the title of `Misdemeanors,' being part of article 6 of chapter 14, are sections 553 and 554, which are in force and effect and which are as follows:

"`Sec. 553. It shall be unlawful for any person to make or cause to be made any excavation in any sidewalk, gutter, street, avenue, alley or public highway in this city without first making application in writing to the city clerk for a permit to do the same. Said application shall be signed by the applicant and shall state the location, character and purpose of said excavation. Upon receipt of the application if the excavation described therein be not such as is expressly prohibited by the ordinances of the city, the clerk shall grant to the applicant a permit to perform said work which said permit shall designate the time in which said work shall be performed.

"`Sec. 554. Any person who shall make or cause to be made any excavation in any sidewalk, gutter, street, avenue, alley or public highway in the city of Carthage without first making application for and obtaining the permit as required by the preceding section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not less than one dollar nor more than one hundred dollars.'

"(8) That on the ____ day of July, 1905, there was standing, just inside the curb line of the sidewalk at the northwest corner of Garrison avenue and Chestnut street, in said city, a telephone pole of said company, upon which were strung wires of the Home Telephone Company and also of said city. That said pole had been in said position and in use for a number of years. That by reason of the increase in business, and increase in number of wires necessary to be strung thereon, said pole had become too small, and was too weak to carry and hold such wires, and it became and was necessary to replace said pole with a newer and larger pole; and on the day charged in the complaint herein defendant Garner as superintendent, and defendant Lawson as foreman, dug and caused to be dug an excavation in the sidewalk at the northwest corner of Garrison avenue and Chestnut street, for the purpose of setting said new pole to replace said old pole, without first making an application, in writing, to the city clerk, stating the location, character, and purpose of said excavation, and obtaining a permit from the city clerk of said city as required by said section 554. That said excavation as it was being made was at a location in strict compliance with the terms of said Ordinance No. 317, above set out, and in compliance with chapter 20 of Revised Ordinances for the year 1901 of said city, which is now in force and effect, the material parts of which, as to this controversy, are as follows:

"`Sec. 599. Any telephone or telegraph company doing business or desiring to do business in the city of Carthage duly incorporated under the provision of article forty-five, chapter forty-two, of the Revised Statutes of Missouri for the year 1899, is hereby authorized to set its poles, wires and other fixtures along or across and under any of the public streets and alleys of said city subject to the regulations hereinafter provided.'

"`Sec. 601. The poles used, as herein provided, shall be of good sound timber, not less than five inches in diameter at the upper end, straight, shapely, of uniform size, neatly planed or shaved, thoroughly painted, shall be supplied with iron steps, commencing not more than seven feet from the surface of the ground. All wires run upon such poles shall be run at a height of not less than twenty-five feet above the grade of the street.

"`Sec. 602. Whenever said poles are erected upon any street of said city they shall be placed in all cases when practicable, on the outer edge of the sidewalk just inside of the curbstone, and on the line dividing the buildings one from the other, and in no case to be placed so as to obstruct the drainage of the street or injure or damage in any way the curbstones or other public or private property on the line of the said street or alley where said poles are located.'"

Defendants prayed for a peremptory instruction, which was refused, and they were adjudged guilty of a violation of sections 553 and 554 of the Ordinances as above set out and as charged in the...