City of Lancaster v. Briggs

• Decision Date: 04 June 1906
• Citation: 96 S.W. 314,118 Mo. App. 570
• Parties: CITY OF LANCASTER v. BRIGGS et al.
• Court: Missouri Court of Appeals

96 S.W. 314

118 Mo. App. 570

CITY OF LANCASTER v. BRIGGS et al.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

1. MUNICIPAL CORPORATIONS—USE OF STREETS —TELEPHONE.

The use of the streets and alleys of a city to carry the poles, lines, and wires necessary to the operation of a telephone exchange is a proper and legal use.

2. SAME—REGULATIONS.

The use of streets and alleys for the maintenance of a telephone system is subject to regulation by the city, including the power to impose a money charge as a condition to the enjoyment of the right.

3. SAME—ORDINANCE—TELEPHONE FRANCHISE.

Where a city ordinance granted a franchise to maintain a telephone system "within the present and future corporate limits of the city" on condition that 2 per cent. of the gross receipts collected from the use of the system be paid to the city, while the city is not entitled to collect the percentage of the receipts from the operation of long distance lines, it may collect the percentage of the receipts from the use of the system within the city in connection with the long distance line.

4. APPEAL—PRESENTATION OF CASE IN LOWER COURT.

Where, in the trial of a cause, both parties proceeded on the theory that a city ordinance was a valid contract between the parties, an objection that there was no proof that the ordinance and acceptance thereof was in writing and signed by the parties could not be made on appeal.

Appeal from Circuit Court, Schuyler County; N. M. Shelton, Judge.

Action by city of Lancaster against R. W. Briggs and another. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded.

P. O. Sansberry and Higbee & Mills, for appellant. C. C. Fogle, for respondents.

JOHNSON, J.

Plaintiff, a city of the fourth class, brought this action to recover 2 per cent. of the gross receipts derived by defendants from the operation of a telephone exchange in the city during the period beginning June 1, 1900, and ending January 1, 1905. A demurrer to plaintiff's evidence was sustained, and plaintiff appealed. The right of plaintiff to receive 2 per cent. of the gross receipts of the exchange during the period mentioned is predicated upon an ordinance of the city, which it is alleged in the petition and shown in proof was approved December 17, 1898, and which it is alleged was immediately accepted and acted upon by defendants who built and operated the exchange under the terms of the agreement thus expressed. The ordinance was admitted in evidence and the first section thereof provides "that a right, franchise, and privilege to erect, maintain, operate, and use a telephone system for a period of 20 years within the present and future corporate limits of the city * * * is hereby granted to Robert W. Briggs and Winfred Melvin [defendants], their heirs, etc., upon the following conditions: In consideration of the grant of franchise herein stated, the said Briggs and Melvin agree to pay to the city * * * 2 per cent. per annum of the gross receipts collected from the use of said telephone system; the same being payable quarterly, and they shall present the city treasurer's receipt therefor, * * * together with a sworn statement of the gross receipts from said telephone system during that quarter. * * * The parties to whom the franchise is hereby granted shall have the right to use the public streets and alleys, highways, and public grounds of said city for the erection of poles and wires, and all other necessary appliances for the successful construction and operation of said telephone system." The next section fixes the maximum rates that defendants may charge "for the use of a telephone in said system for the first five years" and then follows a section requiring defendants to give a "bond with approved security * * * for the construction and operation of said system, and for payment of all moneys due the city from the owners and operators of said system, and for full compliance with the ordinance herein granting said franchise." The ordinance contains other stipulations, but those detailed suffice for the consideration of the questions now before us. Defendants filed the required statements, and paid to the city the sums shown in them to be due under the ordinance; but it is contended by plaintiff that items of revenue earned by the business and received by defendants were omitted and this suit is for the recovery of 2 per cent. of the aggregate of such omitted items. It is conceded by defendants that the receipts reported were confined to those derived solely from the rental of telephones in the city, and it is argued by them, and this was the view taken by the learned trial judge, that the...