City of New Orleans v. The Great Southern Telephone and Telegraph Company

• Decision Date: 01 January 1888
• Docket Number: 10,015
• Citation: 3 So. 533,40 La.Ann. 41
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. THE GREAT SOUTHERN TELEPHONE AND TELEGRAPH COMPANY

3 So. 533

40 La.Ann. 41

CITY OF NEW ORLEANS v. THE GREAT SOUTHERN TELEPHONE AND TELEGRAPH COMPANY

No. 10,015

Supreme Court of Louisiana

January 1, 1888

APPEAL from the Civil District Court, for the Parish of Orleans. Voorhies, J.

Walter H. Rogers, City Attorney, and Branch K. Miller, Assistant City Attorney, for Plaintiff and Appellant.

Bayne Denegre & Bayne, for Defendant and Appellee.

OPINION

FENNER J.

The defendant is the assignee and successor of the New Orleans Telephonic Exchange referred to in the following ordinance of the city of New Orleans, adopted February 18, 1879:

An ordinance authorizing the construction and maintenance of a telephonic telegraph line through the streets of the City of New Orleans.

SECTION 1. Be it ordained by the City Council of the City of New Orleans, That the New Orleans Telephonic Exchange is hereby authorized to construct and maintain a line or lines of telegraphs through the streets of this city, the line or lines to be constructed along such streets, at such points and in such manner as to the kind and position of the telegraph poles, the height of the wires above the streets, and in all other particulars, as the Administrator of the Department of Improvements of this city may direct.

Provided, however, that the said company shall connect their wires with the Mayor's office, Chief of Police's office, and fire alarm telegraph office, and place and keep telephones therein free of charge to the city, so that said telephones may be used in connection with all wires under the control of said company.

SEC. 2. And be it further ordained, etc., That all the acts and doings of said company under this ordinance shall be subject to any ordinance or ordinances that may hereafter be passed by the City Council concerning the same.

Under this ordinance defendant constructed and has since maintained telephonic lines through the streets, built according to the directions of the Administrator of Improvements, and with his approval, and has furnished the city with the free telephonic service stipulated, and has complied in all respects with the terms of the ordinance.

The plant established by defendant is expensive and valuable. The defendant pays a tax upon this plant as property, and also pays a license tax levied on its business.

In April, 1880, the General Assembly of the State passed Act No. 124, authorizing corporations formed for the purpose of transmitting intelligence by magnetic telegraph or telephone, to "construct and maintain telegraph, telephone and other lines along all State, parish or public roads or public works, and along and parallel to any of the railroads in the State, and along and over the waters of the State; provided that the ordinary use of such roads, works, railroads and waters be not thereby obstructed, and along the streets of any city, with the consent of the Council or Trustees thereof.

The defendant having the prior consent of the city certainly came under the protection of this act as to the maintenance of its lines from the date of its passage.

In December, 1883, the City Council passed an ordinance to regulate and control the erection and maintenance of poles for supporting wires of the telephones within and on the streets, ways and public places of the city of New Orleans, "containing various provisions on the general subject, with none of which have we any present concern except the following: That "no poles shall be allowed to be erected, or any existing poles be allowed to remain in that portion of the city embraced by Jackson street, Elysian Fields, Roman street, and the Mississippi River, except upon the payment of $ 5 per annum per pole for every such pole erected, or at present in use within that section of the city * * * said payments to be in consideration of the privilege and advantage of entering upon, using and permanently occupying the streets, ways and places of the city for private property, and to be paid annually in advance, commencing January 1, 1884."

Defendant had 600 poles within the section designated, on which the sum of $ 3000 is claimed to be due, and the object of the present action is to enjoin defendant from using or maintaining said poles for...