City of Mt. Vernon v. Althen

• Decision Date: 07 March 1949
• Docket Number: 8998.
• Citation: 36 N.W.2d 410,72 S.D. 454
• Parties: CITY OF MT. VERNON et al. v. ALTHEN.
• Court: South Dakota Supreme Court

36 N.W.2d 410

72 S.D. 454

CITY OF MT. VERNON et al. v. ALTHEN.

No. 8998.

Supreme Court of South Dakota

March 7, 1949

Rehearing Denied May 18, 1949.

Fred D. Shandorf, of Mitchell, for plaintiffs-respondents.

John Carl Mundt, of Sioux Falls, for defendant-appellant.

ROBERTS, Judge.

This action was commenced on October 23, 1946, for the purpose of compelling defendant to remove from the streets and alleys of the City of Mt. Vernon the poles, wires and other equipment used by him in conducting a telephone business.

On July 7 1902, an ordinance was passed granting to C. B. Woodard a twenty year franchise to construct and maintain upon the streets, alleys and public grounds of Mt. Vernon poles, wires and fixtures proper and necessary for supplying to its residents communication by telephone. The majority of the qualified electors of Mt. Vernon assented to the ordinance. On May 1, 1922, the city passed an ordinance conferring the same right and privileges upon C. B. Woodard for another twenty years. The franchise expired in 1942, but Woodard continued to operate his telephone system without further grant until the time of his death in the fore part of 1946. The telephone system was sold and transferred on May 6, 1946 to the defendant. On August 6, 1946, the City of Mt. Vernon passed an ordinance granting to E. A. Kaup, his heirs successors and assigns, for a period of 20 years, permission to use the streets, alleys and public grounds of the city for the purpose of erecting, constructing and maintaining a telephone system. This ordinance was approved by a majority vote of the elctors of the city. Thereafter, the city council passed a resonlution directing the defendant to remove from the streets and alleys of the city all poles, wires and other property used in connection with the operation of the telephone system and this resolution was brought to the attention of the defendant on October 8, 1946. After the commencement of the present action, defendant acquired an assignment of the Kaup franchise.

Defendant answred with a denial of the allegation that he was unlawfully using the streets and alleys of plaintiff city, and affirmatively alleged, among other things, 'that insofar as this defendant and his predecessors in interest have made use of and are now using the streets, alleys, and public places of the said municipality for the purpose of connecting rural and long distance telephone lines, the same is under the supervision and control of the public utilities commission of South Dakota and beyond the jurisdiction' of the circuit court. Defendant was granted leave to file a supplemental answer. It alleged that he purchased the Kaup franchise and was operating the telephone system under such grant of authority to use the streets, alleys and public grounds of the city.

The judgment of the trial court is based upon the finding that the right of the defendant to use the public ways of the city for the maintenance of the telephone system purchased from the Woodard estate has expired and that the right granted to E. A. Kaup to the use thereof for the installation and maintenance of telephone equipment is 'an entirely new and different franchise or contract'. The judgment of January 23, 1947, decrees that 'within one (1) year after the entry of this judgment, the defendant shall remove all of the original poles, wire and equipment which he was operating and maintaining in the City of Mt. Vernon prior to December 4, 1946, from the streets, alleys and public places of the City of Mt. Vernon, provided however, that the defendant shall begin the removal of such poles, wire and equipment as soon as weather conditions will allow, and not later than May 1, 1947' and that 'the Court by this judgment and decision has not and does not adjudicate any of the rights of either the plaintiffs or the defendant under ordinance No. 76 (Kaup franchise) of the City of Mt. Vernon, and that nothing in this judgment contained shall be construed as an adjudication of the rights of the plaintiff or of the defendant under said ordinance No. 76; and nothing contained in this judgment shall be construed as limiting or interfering with the rights of the defendant, if any he has, to erect or maintain or establish a telephone system under said ordinance No. 76.' Written notice of the entry thereof was given to defendant on January 30, 1947, and no appeal for a review of this judgment was ever taken to this court.

An order was served on defendant requiring him to show cause why he should not be adjudged in contempt for failing to comply with the terms and conditions of the judgment and orders of the court made herein. A hearing was had pursuant to the order to show cause, and on February 23, 1948, the court made extended findings of fact and as a conclusion of law found that defendant was guilty of contempt and entered judgment accordingly. The court decreed that defendant be punished for such contempt by imprisonment in the county jail for 90 days and by a fine of $500, but that defendant could purge himself of contempt by prompt compliance with the mandates of the court. Defendant has appealed from this judgment.

It is not nor could it be, denied that the circuit court may punish as for contempt the violation of a judgment of the nature here under determination which such court is vested with jurisdiction to make or enter. In the early case of State v. Knight, 3 S.D. 509, 54 N.W. 412, 44 Am.St.Rep. 809, this court recognized that the power of inflicting punishment upon persons guilty of contempt is inherent in courts of general jurisdiction. It is a necessary incident to the exercise of judicial power. See, also, Fritz v. Fritz, 45 S.D. 392, 187 N.W. 719; State v. American-News Co., 62 S.D. 456, 253 N.W. 492; Simmons v. Simmons, 66 S.D. 76, 278 N.W. 537. The question of the...