City of St. Louis v. Western Union Telegraph Co.

• Decision Date: 09 July 1894
• Citation: 63 F. 68
• Parties: CITY OF ST. LOUIS v. WESTERN UNION TEL. CO.
• Court: U.S. District Court — Eastern District of Missouri

63 F. 68

CITY OF ST. LOUIS v. WESTERN UNION TEL. CO.

United States Circuit Court, E.D. Missouri, Eastern Division.

July 9, 1894

William C. Marshall, for plaintiff.

Dickson & Smith, for defendant.

PHILIPS District Judge.

This is an action of assumpsit, instituted April 7, 1888, to recover the sum of $22,635, under Ordinance No. 12,733, passed March 22, 1884, by the plaintiff city providing for the payment of $5 per telegraph pole 'for the privilege of using the streets, alleys, and public places thereof. ' The case was tried in this court, without the intervention of a jury before Judge Thayer, resulting in a judgment for defendant. See 39 F. 59. On writ of error to the supreme court, this judgment was reversed, and the cause remanded for a new trial. See 148 U.S. 92, 13 Sup.Ct. 485; 149 U.S. 465, 13 Sup.Ct. 990. On remand, the cause has been heard before me, a jury again being waived, on the original agreed statement of facts and additional evidence.

Under the decision of the supreme court, two principal questions are involved on this retrial, left open for the development of additional proof: First, did section 8 of Ordinance No 11,604, adopted February 11, 1881, on its acceptance by the defendant, and its erection and acquisition thereafter of additional poles, and the use by the city of both the old and new poles, which use yet continues, constitute a contract between the city and the company, which would be violated by the enforcement of said Ordinance No. 12,733? and, second, is the exaction of five dollars per pole, imposed under the last ordinance, so unreasonable that the court ought to interpose and set it aside?

Said section 8 is as follows:

'Any company erecting poles under the provision of this ordinance shall, before obtaining a permit therefor from the board of public improvements, file an agreement in the office of the city register, permitting the city of St. Louis to occupy and use the top cross arm of any pole erected, or which is now erected, for the use of said city for telegraph purposes, free of charge.'

I am unable to agree with the contention of the learned counsel for the city that the first inquiry is precluded by the decision of the supreme court. It is as much open for admission of additional evidence, and for verdict on the facts, as the second proposition. All that can reasonably be inferred from the discussion by Mr. Justice Brewer is that, from anything appearing in the evidence then in the record, he was unable to find that the company, since the adoption of the Ordinance No. 11,604, had done any act under section 8, nor of consequence, it must be assumed, had the city enjoyed the benefits thereof, so as to make a predicate for an executed contract containing the elements of an estoppel. After commenting on the absence of proof on this issue, he said: 'It is unnecessary, however, to consider these matters at length, for on a new trial the facts in respect thereto can be more fully developed.'

The evidence now shows that, of the 1,509 poles, the city, since 1881, has been using 834 for its wires, and fire 'hoodlum' signal boxes, and in some instances has as many as 8 wires on one pole; and, since the adoption of Ordinance No. 11,604, the company has purchased 280 poles of another company, and erected 104 new poles, the top cross arms of which the city has, presumably, since occupied. Certainly, as to the 384 poles acquired and erected thus by the company, there ought to be no question but that this was an act in execution of the provisions of said section 8, and would clearly come within the thought of Mr. Justice Brewer as constituting an estoppel. If so, I am unable to perceive how there can be any logical escape, on principle, from the application of the rule to the entire user by the plaintiff.

I understand the law to be that the grant of an easement or a use by the state or municipality like the plaintiff city, by ordinance, with a condition attached to be performed by the grantee beneficial to the grantor, when accepted by the grantee and acted on by both parties, constitutes a contract between them, from which neither party can recede, except upon the terms provided for or contemplated by the contract. Dill. Mun. Corp. (3d Ed.) par. 472; City of New Orleans v. Great Southern, etc., Co., 40 La.Ann. 41, 3 So. 533; Kansas City v. Corrigan, 86 Mo. 67; State v. Corrigan St. Ry. Co., 85 Mo. 264; City of Quincy v. Bull, 106 Ill. 342; Com. v. New Bedford Bridge, 2 Gray, 339; Chicago v. Sheldon, 9 Wall. 50; Coast-Line R. Co. v. Mayor, etc., 30 F. 646.

A grant is a contract. Chief Justice Marshall, in Fletcher v. Peck, 6 Cranch, 136, said:

'A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing. A contract executed is one in which the object of the contract is performed; and this, says Blackstone, differs in nothing from a grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its very nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is therefore always estopped by his own grant.'

In City of New Orleans v. Great Southern, etc., Co. supra, where the city, after granting the right to the telegraph company on condition of furnishing to the city certain free telephonic facilities, sought to impose a charge of five dollars per pole, the court, inter alia, said:

'Either she is bound according to the terms of her proposition accepted and acted upon by defendant, or she is not bound at all. Obviously, upon the clearest consideration of law and justice, the grant of authority to defendant, when accepted and acted upon, became an irrevocable contract; and the city is powerless to set it aside, or to interpolate new or more onerous considerations therein.'

So in Rutland Electric Light Co. v. Marble City Electric Light Co., 26 A. 635, the supreme court of Vermont say:

'An ordinance authorizing a telephone company to maintain lines on its streets, without limitation as to time, for a stipulated consideration, when adopted and acted upon by the grantee by a compliance with its conditions, becomes a contract which the city cannot abolish or alter without the consent of the grantees.'

See, also, Western Paving, etc., Co. v. Citizens' St. Ry. Co., 128 Ind. 525, 26 N.E. 188, and 28 N.E. 88; Gregsten v. City of Chicago (Ill. Sup.) 34 N.E. 426; Hudson Tel. Co. v. Jersey City, 49 N.J.Law, 303, 8 A. 123.

What difference can it make, in the application of this principle to this case, that prior to 1881 the defendant had erected most of its poles, and had suffered the city to use a few of them? That was, at most, but a parol license, revocable at will. Prior to 1881, the city does not appear to have taken any account of the presence of the defendant's poles on its streets; but in February, 1881, the city, by ordinance, recognized the right of and authorized the company to be and continue on its streets and alleys. By Ordinance 11,604 it imposed upon the company the duty and obligation of keeping on deposit with the city treasurer the sum of $50, subject to the order of the street commissioner, to be used by him in restoring any sidewalk, gutter, street, or alley pavement displaced or injured in the erection, alteration, or removal of any pole of such company; and further requiring, in consideration of the grant of occupancy of the streets, that the company, before obtaining a permit therefor from the board of public improvements, should file an agreement with the city permitting the city to occupy and use the top cross arms of any poles to be erected, 'or which is now erected, for the use of said city for telegraph purposes, free of charge. ' The company filed its agreement accordingly. This ordinance then became a binding contract, from which the company could not recede so long as its poles stood in the plaintiff's streets; and, when the city took the benefit thereof by using the defendant's poles, it became an executed contract. How, then, could the city, after thus binding the company to furnish it free of charge the use of its poles, in consideration of the grant made to the company and using the privilege for three years, subject the company to an additional charge of five dollars per pole, while still holding onto the top arms?

It is no answer to this to say that the number of wires placed on the poles by the city are greatly less than those employed by the company. If it is a contract, and that contract has been kept by the defendant, and the plaintiff has enjoyed the fruit thereof to the full measure of the requirements of the contract, it is enough. Furthermore, the uncontradicted evidence shows that it costs $23 to erect a pole and top cross arm, to say nothing of the expense of keeping them in repair and removing and replacing them to suit the city. This sum the city saved by using over 800 of the defendant's poles.

Nor does the evidence, by its weight and credibility, support the contention of counsel for the city that there has been but little change in the use of the defendant's poles by the city prior and subsequent to the adoption of the ordinance of 1881. On the contrary, it clearly enough shows that prior to 1881 the wires of the city were strung on the tops of houses, rendering their accessibility for repairs more inconvenient and expensive, and that they were afterwards mainly placed upon defendant's poles.

Nor can I accede to the proposition of counsel that no contract is predicable of Ordinance 11,604, and the acts done thereunder for the reason that they are wanting in the quality of...