City of Mountain View v. Farmers Telephone Exchange Company

• Decision Date: 16 June 1922
• Citation: 243 S.W. 153,294 Mo. 623
• Parties: CITY OF MOUNTAIN VIEW, Appellant, v. FARMERS TELEPHONE EXCHANGE COMPANY et al
• Court: Missouri Supreme Court

243 S.W. 153

294 Mo. 623

CITY OF MOUNTAIN VIEW, Appellant, v. FARMERS TELEPHONE EXCHANGE COMPANY et al

Supreme Court of Missouri, First Division

June 16, 1922

Certified from Springfield Court of Appeals.

Affirmed.

Lamar & Lamar and Green & Green for appellant.

(1) Legislative sanction conferred through proper state or municipal action is necessary to authorize the use of streets for the posts and wires of a telegraph or telephone company and if they be constructed without such sanction they are nuisances and may be enjoined. 2 Dillion on Municipal Corporations (4 Ed.) sec. 698; Jones on Tel. & Tel. Companies (1 Ed.) secs. 83, 95; City of St. Paul v. Freddy, 90 N.W. 781; City of Marshfield v. Tel. Co., 78 N.W 735. (2) Municipal grants and privileges are always construed most strongly against the grantee and in favor of the public. Kavanaugh v. St. Louis, 220 Mo. 496; Memphis E., L. & P. Co. v. Memphis, 196 S.W. 1113. (3) Defendant had no right to place their wires and poles or other fixtures in the city without first obtaining the consent of the municipal authorities thereof. R. S. 1909, sec. 3326. (a) A village has the authority granted to it by the Legislature to pass ordinances, opening, clearing and regulating streets and alleys. R. S. 1909, sec. 9436. (b) The power "to regulate" gives the power to permit use by a telephone company for its poles and wires. State ex rel. v. Murphy, 134 Mo. 548, 561; Schopp v. St. Louis, 117 Mo. 136. (4) The corporate power of a village is vested in a board of trustees, which consists of five members, and they are required by statute to keep a journal of their proceedings, and the acts of such board can only be shown by such journal entries. R. S. 1909, secs. 9431, 9435; Stewart v. City of Clinton, 79 Mo. 603; Dillon on Municipal Corporations (4 Ed.) secs. 259, 274, 310; Lebanon Light Co. v. City of Lebanon, 163 Mo. 254, 259. Under Section 3326 the consent must be obtained from the municipal authorities of the city. The municipal authorities is a board of trustees, and not the mayor. Outside of these statutes a mayor or chairman of a board has no authority to bind the city, and the city is not estopped by his acts. 28 Cyc. 465e, 463b, 647b; Lockwood v. Wabash Railroad, 122 Mo. 95. (5) Those who deal with the officers of a municipal corporation are conclusively presumed to know the law, and that these public agents are authorized to act only strictly within the sphere limited and prescribed by law and outside of which they are utterly powerless to act, and any transaction had by such officers outside of such authority do not and cannot bind the principals, because persons dealing with such officers are conclusively presumed to know the authority which the law confers on such officers. Mister v. Kansas City, 18 Mo.App. 217; Cheeney v. Brookfield, 60 Mo. 53; Lebanon Light Co. v. City of Lebanon, 163 Mo. 254; City of Unionville v. Martin, 95 Mo.App. 28; Muttens v. Kansas City, 268 Mo. 444. (6) The matters and things pleaded in defendant's answer constitute no defense whatever. A city has a duel capacity: governmental or public, and proprietary. In applying the doctrine of estoppel, distinction must be made between property held for strictly public purposes as for streets, parks, commons and the like, and property held by the corporation in its private capacity. The grant to use the streets of a city to a telephone company is a grant by the State through the city as its agent; is a governmental act for public benefit and the doctrine of estoppel does not apply to a city in a governmental capacity; it only applies to matters and things done or property held in its private character. 2 Dillon on Municipal Corporations (4 Ed.) sec. 675; Dunklin County v. Chouteau, 120 Mo. 577, 595; State ex rel. v. Light & Dev. Co., 246 Mo. 648; Behrman v. St. Louis, 273 Mo. 518. (7) The learned trial judge based his decision in this case dissolving the injunction on the theory that plaintiff is estopped. The court was led into error by the line of cases holding that the Statute of Limitations, estoppel in pais and laches, apply to counties, cities and municipalities when acting in their private or proprietary capacity, and failed to observe the distinction between the acts of a city in such capacity and when acting in its public or governmental capacity. 28 Cyc. 24; Snouffer v. Cedar Rapids City Railroad, 92 N.W. 79, 86; Bangor v. Bay City Traction Co., 110 N.W. 490; State ex rel. v. Railroad Co., 140 Mo. 539, 558; Wheeler v. Poplar Bluff, 149 Mo. 36, 47; Savage v. Springfield, 83 Mo.App. 323; Philadelphia Mortgage Co. v. City of Omaha, 88 N.W. 523.

W. N. Evans & O. L. Haydon for respondents.

The application of the defendant to the town of Mountain View and its acceptance by the chairman of the board, who says he discussed it with the other members, was an invitation to the defendant to proceed with the work of building and establishing its telephone system in Mountain View. Defendant has put up and now maintains about 300 miles of wires and poles which is valued at $ 50 per mile, or $ 15,000, to say nothing of the cost and expense of the central or exchange office in Mountain View and of the many poles and wires of the patrons inside of the incorporated town. The doctrine announced in the case of Town of Montevallo v. School District, 268 Mo. 217, and St. Joseph v. Railroad, 268 Mo. 47, settles this case.

ELDER, J. Graves and James T. Blair, JJ., concur.

OPINION

ELDER, J.

This case has been certified to this court by the Springfield Court of Appeals by reason of an alleged conflict between the opinion rendered herein by the latter court and an opinion heretofore rendered by Division One of this court in the case of Holland Realty & Power Co. v. City of St. Louis, 221 S.W. 51.

The opinion of the Springfield Court of Appeals, written by Farrington, J., and fairly setting forth the facts involved, is as follows (224 S.W. 155):

"Plaintiff a city of the fourth class, filed its petition in the circuit court seeking to enjoin defendant from erecting its poles, wires, etc., on and along the streets and alleys of the city. A temporary restraining order was issued. The venue was changed from Howell to Texas County, and on trial in the latter county the temporary injunction was dissolved, and plaintiff's bill dismissed, and plaintiff appealed.

"It is alleged that the defendant without authority entered and trespassed upon the streets and alleys of the city, dug and is digging holes, erecting poles, stringing wires, obstructing the streets, alleys, and sidewalks to the great and irreparable damage of plaintiff; that plaintiff has notified defendant to desist from doing these things, but defendant continues in disregard of the notice.

"Defendant's answer avers that on March 1, 1910, it presented a petition or application to the chairman and members of the board of trustees of the then town of Mountain View, asking for a permit to establish, construct, maintain and operate a central office, and such poles and wires as might be necessary to carry on a telephone communication between the subscribers and the residents and business houses of the town; that soon after presenting this petition it was returned duly signed by the chairman of the board of trustees, and that said chairman advised defendant that the permit prayed for had been granted by the board of trustees, and as evidence thereof the chairman of said board had signed said petition or application; that relying on what defendant considered as a proper authority and permit it proceeded at once to establish, construct, maintain and operate a central office in the town of Mountain View, and erected poles, and strung wires, and did all other things necessary in the construction and operation of a telephone system, and operated said telephone system in said town with the full knowledge, consent and acquiescence of the town officials and the inhabitants, and to their satisfaction until in the year 1916. That in 1916 an electric light plant was established in the then city of Mountain View, and that the wires of the light plant were in many instances strung in such close proximity to the telephone wires that the telephone service was impaired, and that not until then was there any complaint of consequence; that in order to improve the service rendered after the installation of the light plant, defendant attempted to erect its poles and wires on the opposite side of the street from the light poles and wires; and that defendant frequently requested the city to define its duties and rights by ordinance, but that this the said city failed and neglected to do; that the town and thereafter the city regularly levied and collected taxes from defendant. That by reason of the knowledge of plaintiff that defendant had erected and was maintaining its telephone system in the town and afterwards the city for a period of nearly ten years, and that the town and thereafter the city officials, and inhabitants generally, were subscribers and patrons, and that plaintiff city had permitted and acquiesced in defendant expending large sums of money in installing and maintaining its telephone system for such a long period of time and having levied and collected taxes from defendant and having attempted in the first instance to give defendant a permit to enter, that because of these things plaintiff is estopped from denying the right of defendant to maintain its telephone system in said city, and to re-erect or move its poles and wires for the necessary maintenance of its telephone system, and that unless defendant is permitted to continue the erection of the necessary poles and wires in said city, it will suffer irreparable injury and damage.

"The record shows that the defendant telephone...