City of Richmond v. Southern Bell Tel. & Tel. Co.

• Decision Date: 01 February 1898
• Docket Number: 241.
• Citation: 85 F. 19
• Parties: CITY OF RICHMOND v. SOUTHERN BELL TEL. & TEL. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

85 F. 19

CITY OF RICHMOND v. SOUTHERN BELL TEL. & TEL. CO.

No. 241.

United States Court of Appeals, Fourth Circuit.

February 1, 1898

Charles V. Meredith, for appellant.

Hill Carter and A. L. Holladay (Geo. H. Fearons, on the briefs) for appellee.

Before SIMONTON, Circuit Judge, and BRAWLEY and e, and BRAWLEY and PURNELL, District judges.

SIMONTON Circuit Judge.

This case comes up on appeal from the decree of the circuit court of the United States for the Eastern district of Virginia. The complaint is a corporation organized under the laws of the state of New York as a telephone and telegraph company. It is engaged in the business of a telephone company, and of constructing and operating telephone lines in and through the states of Virginia, West Virginia, North Carolina, South Carolina, Georgia, Alabama, and Florida. It has maintained and operated for several years all the apparatus necessary for transmitting telephone messages in the city of Richmond Va., and has erected and maintained along certain streets and alleys of said city numerous poles and wires for this purpose. The complainant company was incorporated on the 11th December, 1879. In 1884 it applied to the city of Richmond for authority to erect its poles and run its wires along the streets and alleys of said city; and by an ordinance passed 21st June, 1884, this permission was granted as to such routes as may be specified and agreed on by a resolution or resolutions of the committee on streets, from time to time and on the conditions and provisions of the ordinance. These conditions and provisions were: That on any route conceded by the committee on streets, and accepted by the company, the poles should be so placed by the company under the direction of the city engineer as to allow for the use of said poles by the fire alarm and police telegraph in all cases giving the choice of position to the city's wires. To furnish telephone service to the city at a special reduction of $10 per year for each station. No shade trees to be disturbed cut, or damaged without the permission of the city engineer and the consent of the owners of the property in front of which the trees stand. All this work to be in every respect subject to the supervision and control of the city engineer. The ordinance to be subject at any time to repeal, such repeal to go into effect 12 months after the passage of the repealing ordinance. On the 13th February, 1889, the Southern Bell Telephone & Telegraph Company, the complainant, accepted without reservation all of the restrictions and obligations of the act of congress, approved 24th July, 1866, entitled 'An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military and other purposes. ' And thereupon, on 18th February, 1889, the postmaster general certified that this acceptance was on file in the post office department. This act of congress is in these words:

'Sec. 5263. Any telegraph company now organized, or which may hereafter be organized, under the laws of any state, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, which have been, or may hereafter be declared such by law, and over, under, or across the navigable streams or waters of the United States; but such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads.'

'Sec. 5268. Before any telegraph company shall exercise any of the powers or privileges conferred by law such company shall file their written acceptance with the postmaster general of the restrictions and obligations required by law.'

On 14th December, 1894, the city council of Richmond repealed the ordinance of 26th June, 1884, granting these privileges to the Southern Bell Telephone & Telegraph Company, to take effect 12 months after its approval. And 10th September, 1895, the same city council passed another ordinance as to the joint use of poles erected in the streets and alleys of the city of Richmond for the support of wires used in connection with the transmission of electricity. The first section of this ordinance provides that all poles now erected in the streets or alleys of the city of Richmond for electric wires, except such as support wires required by city ordinances to be removed and run in conduits, shall thereafter be allowed to remain only on terms and conditions thereinafter set forth. The second section provides that no pole now erected for the support of telephone wires shall remain on any street in said city after 15th December, 1895, unless the owner or user of such pole shall first have petitioned for and obtained the privilege of erecting and maintaining poles for telephone purposes in accordance with the conditions of this ordinance and such others as council may see fit to impose. If such owner fail to obtain such privilege, and fail or neglect to remove the poles, and restore the street to its former condition, he shall be liable to a fine not more than $500 and not less than $100 for every pole so remaining; each day's failure to be a separate offense. Then follows a number of sections imposing most stringent conditions, placing the whole matter within the control of the city and its officers, reserving the right in the city council at any time to put other restrictions and regulations as to the erection and use of such poles, and from time to time to require the removal of them and the wires to be run in conduits. On 10th September, 1895, another ordinance was passed, requiring the removal of poles and wires from overhead in certain streets, and for the construction and using conduits in certain streets. This ordinance was enforceable under heavy penalties, with the provision, also, that any company getting the privilege of putting in these conduits, must make them 100 per cent larger than is needed for their use, so that the city might run its wires free in such conduits, and any other company may use them for an agreed compensation, or one to be fixed by arbitrators. Threats having been made to carry these ordinances into effect, the complainant filed its bill praying an injunction. It rests its right to use the streets and alleys of the city of Richmond for the purposes of its business under article I, Sec. 8, of the constitution of the United States, and the act of congress of 1866, and denies that in such use it can be prevented or controlled or be in any way dependent upon an ordinance or any ordinances of the city council. The prayer for an injunction is in these words:

'That said city and all others, its agents and employes, may be restrained and enjoined from removing or interfering with its poles and wires in said city, and from interfering with the right of your orator to use said poles and wires, and that all proceedings by said city or its agents and all others to prevent your orator from continuing, renewing, repairing, and extending its lines, wires, and poles in, along, and over the streets and alleys of the said city, and to inflict fines and penalties on your orator for so doing, may be restrained and enjoined; that the right of your orator to use said poles and wires and to carry on its said business along and over the streets of the said city be declared and defined; that the ordinances of said city of the 14th of December, 1894, and of the 10th September, 1895, so far as they undertake to prevent your orator from maintaining and using its lines, poles, and wires over and along the streets and alleys of the city of Richmond, from repairing, renewing, and extending its said poles, wires, lines, and routes as its business may require, may be declared null and void.'

Upon the filing of the bill an interlocutory injunction was granted.

The bill was first met by demurrer. The demurrer sets up these defenses: (1) As to the equity of the bill. (2) That the act of congress of 1866 applies only to telegraph companies, and not to companies like the complainant. (3) That the act of congress, even it if does apply to complainant, does not give it any right to erect its poles and wires along the streets of Richmond, without the consent of the city, subject to reasonable regulations as to the routes, position, and number of the poles, and to pay for use of the streets. (4) That, if this is the effect of the act of Congress, it is unconstitutional. (5) That the ordinance of 1884 constitutes a binding contract between complainant and the city of Richmond, with a power of rescission by repeal in the city council. That this power was given by the statute of the state of Virginia, and was properly exercised. The demurrer was overruled, and the defendant filed its answer. The portions of this answer which bear upon the conclusions reached in this case are these: A denial that the wires, poles, and lines of the complainant in an over the streets and alleys of said city constitute a part of the postal service of the United States; a denial that complainant is a telegraph company, and a denial that its acceptance of the act of 1866, so far as the telephone exchange in Richmond is concerned, even entitled it to any of the rights and powers authorized by the act; a denial that the acceptance by the complainant of the provisions of the act of 1866 has rendered complainant independent of and superior to the council of the city of Richmond. The cause came to a full hearing, and the circuit court made the following decree:

'The court, without passing on the rights claimed by the complainant company under the laws of Virginia and the ordinances of the city of Richmond, is of opinion, and

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