City of Springfield v. Postal Tel.-Cable Co.

• Decision Date: 23 February 1912
• Citation: 97 N.E. 672,253 Ill. 346
• Parties: CITY OF SPRINGFIELD v. POSTAL TELEGRAPH-CABLE CO.
• Court: Illinois Supreme Court

253 Ill. 346

97 N.E. 672

CITY OF SPRINGFIELD

v.POSTAL TELEGRAPH-CABLE CO.

Supreme Court of Illinois.

Feb. 23, 1912.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Sangamon County; Robert B. Shirley, Judge.

Action by the City of Springfield against the Postal Telegraph-Cable Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals with a certificate of importance. Affirmed.Brown, Wheeler, Brown & Hay and John T. Creighton (W. W. Cook and William E. O'Neill, of counsel), for appellant.

Frank L. Hatch, Corp. Counsel, and Albert Stevens, City Atty. (Timothy McGrath, of counsel), for appellee.

CARTER, C. J.

This was an action in debt, brought in the circuit court of Sangamon county by the appellee against the appellant, in which it was alleged that said company occupied certain portions of the streets and alleys in the city of Springfield during the years 1906, 1907, 1908, and 1909 without paying into the city treasury, on the 1st day of September of each year, one dollar for each pole over eight feet high used by said company, as required by a certain ordinance of said city. Appellant filed the general issue and gave notice of certain special matters relied on for defense under acts of Congress of 1866 (Act July 24, 1866, c. 230, 14 Stat. 221) and 1884 with reference to the right of telegraph companies to construct, maintain, and operate lines of telegraph over post roads, public roads, and highways. On a hearing, the jury returned a directed verdict in favor of appellee for $640. From judgment entered thereon, an appeal was prayed to the Appellate Court, where the judgment was affirmed. The Appellate Court granted a certificate of importance to this court.

The appellant company was incorporated under the laws of Illinois in 1905, for the purpose of carrying on the business of transmitting telegraphic messages. It accepted the post roads act of Congress of 1866, as amended in 1884. January 3, 1898, the city council of Springfield adopted an ordinance which amended its code with reference to licenses, providing, among other things, that, before any person or corporation should engage in business within the limits of said city, he or it should first obtain a license. One of the sections of that ordinance reads as follows: ‘Any person, firm or corporation owning, controlling or occupying any post or pole over eight feet high which may occupy any portion of any street, alley or sidewalk within the city of Springfield, such post or pole being used to support electric or other wires, of whatsoever nature, or to support any sign or awning or display for the purpose of advertising, shall pay annually into the city treasury the sum of one dollar for each pole or post owned, controlled or occupied by said person, firm or corporation, as a remuneration to the said city for the use of the portion or portions of the street, alley or sidewalk which said pole or post may occupy.’ It appears that from its incorporation until this suit was instituted the appellant company occupied the streets and alleys of the city of Springfield with 160 poles, carrying wires, without any demand for the payment of one dollar per year for each pole, and without having paid anything into the city treasury during all of such time, as required by said ordinance.

[1][253 Ill. 352]Paragraph 6 of section 4 of article 5 of an act to incorporate the city of Springfield provided that the city council had ‘the exclusive control’ of the ‘streets, alleys and highways of the city, and to * * * regulate * * * the same,’ etc. Pub. and Priv. Laws, Second Sess. 1854, p. 44. The present cities and villages act was adopted by the city of Springfield. Clause 9 of section 1 of article 5 of that act provides that the city council shall have the power ‘to regulate the use of the’ streets, and clause 17 of the same section that the city council shall have power ‘to regulate and prevent the use of streets, sidewalks and public grounds for * * * telegraph poles,’ etc. Hurd's Stat. 1909, p. 343. The provisions of the special charter, so far as they are not in conflict with the general cities and villages act, are still applicable to the city of Springfield. Hurd's Stat. 1909, c. 24, § 6, p. 334; City of Cairo v. Bross, 101 Ill. 475;Board of Water Com'rs v. People, 137 Ill. 660, 27 N. E. 698. Section 4 of chapter 134 of our statutes provides that no telegraph company shall erect any poles within any city, town, or village without the consent of the corporate authorities. Hurd's Stat. 1909, p. 2212.

[2][3][4][5][6][7][8] Counsel for appellant insist that the city of Springfield was without authority to pass the ordinance in question. Municipal corporations are limited to powers granted in express words, or those that are necessarily implied in or are incident to the powers expressly granted, and those essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable. Huesing v. City of Rock Island, 128 Ill. 465, 21 N. E. 558,15 Am. St. Rep. 129. State Legislatures have plenary power over all public highways, including streets within municipalities, which they may exercise directly or devolve upon the local or municipal authorities. 3 Dillon on Mun. Corp. (5th Ed.) pars. 1022, 1222. Legislative sanction, directly given or conferred through municipal action, is necessary to authorize the use of streets for posts and wires of telegraph or telephone companies. 3 Dillon on Mun. Corp. (5th Ed.) par. 1220; 1 Elliott on Roads and Streets (3d Ed.) par. 545. Municipalities, under such legislative authority, may demand reasonable compensation for space in the streets exclusively appropriated by telegraph and telephone companies without in any way conflicting with the act of Congress of 1866, as amended in 1884, with reference to telegraph companies using public highways and streets. Western Union Telegraph Co. v. Attorney General, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790;St. Louis v. Western Union Telegraph Co., 148 U. S. 93, 13 Sup. Ct. 485, 37 L. Ed. 380. It is a presumption of law that...