City of Zanesville v. Zanesville Tel. & Tel. Co.

• Decision Date: 22 January 1901
• Citation: 59 N.E. 781,64 Ohio St. 67
• Court: Ohio Supreme Court
• Parties: CITY OF ZANESVILLE v. ZANESVILLE TELEPHONE & TELEGRAPH CO.

59 N.E. 781

64 Ohio St. 67

CITY OF ZANESVILLE v. ZANESVILLE TELEPHONE & TELEGRAPH CO.

Supreme Court of Ohio.

January 22, 1901

On rehearing. Judgment of reversal set aside, and judgment affirmed.

For former opinion, see 59 N.E. 109.

The Zanesville Telephone & Telegraph Company is a corporation organized under the Ohio statutes, and authorized, in the construction, operation, and maintenance of its lines, to use the public roads, streets, and ways within the state, and to appropriate such private property as may be necessary for its purposes. Desiring to construct and operate telephone lines in the city of Zanesville, the company made application to the city council in order that an agreement might be arrived at in regard to the mode of constructing its lines in the streets and alleys of the city. The application was accompanied with a proposed ordinance, the adoption of which was requested, providing that the location of the company's poles and wires should be under the control of the council's committee on streets and alleys, and be so placed as not to interfere with the public travel, and it contained provisions for protecting the city against damages arising from the construction and maintenance of the telephone lines. The council declined to accept the proposed agreement, and adopted an ordinance imposing different and more onerous conditions, among others one requiring the company's wires to be placed under ground. The provisions of this ordinance were not satisfactory to the company; and the negotiations having resulted in a disagreement, the company made its application, in the form of a petition amendment thereto, and supplemental petition, to the probate court of Muskingum county for an order, under section 3461 of the Revised Statutes, directing in what mode the company's line should be constructed along the streets and public ways of the city. The city was made a party, was served with process, and filed an answer alleging that the company ‘ never offered nor tendered to the said city or to the said city council, any lawful ordinance or agreement in relation to the matter set out in the petition or offered or attempted to enter into any lawful agreement in relation thereto.’ The case was heard on the pleadings and evidence, on the 9th day of August, 1899, and at the conclusion of the trial, as the record shows, the court held that section 3461, under favor of which the proceeding was had, was unconstitutional, and on that ground dismissed the proceeding at the cost of the company. That judgment, and its affirmance by the court of common pleas, were reversed by the circuit court, and the cause remanded for further proceedings. The case is here to obtain the reversal of the circuit court.

Shauck, C. J., and Minshall, J., dissenting.

Under Rev.St. §§ 3454, 3461-1, 3471 (See Gen.Code, §§ 9170, 9180, 9191), telephone companies may construct their lines along streets of municipal corporations in accordance with order of probate court rendered in pursuance of § 3461 (See Gen.Code, §§ 9178, 9179), when municipal authorities and company fail to agree, or former unreasonably delay to enter into an agreement with company.

Syllabus by the Court

1. The distribution of the powers of the state, by the constitution, to the legislative, executive, and judicial department, operates, by implication, as an inhibition against the imposition upon either of those powers which distinctively belong to one of the other departments.

2. The fact that a power is conferred by statute on a court of justice, to be exercised by it in the first instance in a proceeding instituted therein, is, itself, of controlling importance as fixing the judicial character of the power, and is decisive in that respect, unless it is reasonably certain that the power belongs exclusively to the legislative or executive department.

3. The institution and prosecution of a proceeding in a court comprehends the filing of a proper complaint, process for bringing in the proper parties, and a judicial inquiry according to established rules and practice.

4. Where the law confers a right, and authorizes an application to a court of justice for the enforcement of that right, the proceeding upon such application is the exercise of a judicial function, though the order or judgment authorized be of such a nature that it can only be performed, or its execution enforced, progressively during a future period.

5. A municipal corporation, though holding the title to its streets, has no private proprietary interest in them which entitles it to compensation when they are subjected to an authorized additional public burden by the construction of a telephone line therein; but, being charged with the duty of keeping the streets under its control in repair, it may be allowed compensation to an amount sufficient to make the repairs rendered necessary by such additional use. It is not essential that provision be made for the assessment of such compensation by a jury.

6. Telephone companies, organized under the laws of this state, have the right, by virtue of sections 3454, 3461-1, and 3471 of the Revised Statutes, to construct their lines along the streets and public ways of municipal corporations, in accordance with the order of the probate court made in pursuance of section 3461, directing in what mode the lines shall be so constructed, when the municipal authorities and the company fail to agree, or the former unreasonably delay to enter into an agreement with the company.

7. The power to make such order, as provided in section 3461, is not inappropriately conferred on the probate court, and that court has complete jurisdiction of a proceeding instituted therein in conformity with that section. The provision is not obnoxious to the constitution of the state, on the ground that the power it confers is distinctively legislative or administrative, but is constitutional and valid.

Charles G. Griffith, City Sol., and Durbin & McDermott, for plaintiff in error.

J. W. Warrington, W. M. Ampt, and Ellis G. Kinkead also filed briefs, and argued against the constitutionality of the statute.

S. M. Winn and A. J. Andrews, for defendant in error.

Foraker, Outcalt, Granger & Prior also filed a brief, and argued in favor of the constitutionality of the statute.

WILLIAMS, J.

The judgment of reversal announced after the first hearing of this case was not the unanimous decision of the court although no dissent appeared. The case, having been more fully argued on the rehearing, and further considered by the court, is now for disposition as upon the original submission. The only question that has engaged the attention of counsel and the court on each of the hearings is whether that provision of section 3461 of the Revised Statutes which confers jurisdiction on the probate court to direct the mode of constructing a telegraph or telephone line in the streets of a municipality when its authorities and the company are unable to agree, is repugnant to the constitution of the state, and the sole ground of the attack upon the constitutionality of the provision alluded to is that the power it purports to confer on the court is purely legislative in character. It is a sound proposition that the distribution of the powers of the state, by the constitution, to the legislative, executive, and judicial departments, operates, by implication, as an inhibition against the imposition upon either of those powers which strictly belong to one of the other departments. But in classifying those powers, and determining to which class various powers created by statute exclusively or properly belong, difficulties are encountered, and many nice distinctions have been made. If the power here in question is such that it can be conferred on any judicial tribunal, there can be no doubt of the capacity of the probate court to receive and exercise it, by virtue of the constitutional provision which enables that court to take any jurisdiction, in any county, which the legislature may confer upon it. Section 8, art. 4. The statutory provisions which may aid in a determination of the nature of the power involved in this controversy are those contained in sections 3454, 3461-1, 3471, and sections 3456-3459, and 3461 of the Revised Statutes. These sections provide as follows:

‘ Sec. 3454. A magnetic telegraph company heretofore or hereafter created may construct telegraph lines, from point to point, along and upon any public road, by the erection of the necessary fixtures, including posts, piers, and abutments necessary for the wires; but the same shall not incommode the public in the use of such road.’

‘ Sec. 3461-1. Any person or persons may be and are hereby authorized to construct lines of electric telegraphs, from point to point, upon and along any of the public roads and highways, and across any of the waters within the limits of this state, by the erection of the necessary fixtures, including posts, piers, or abutments for sustaining the cords or wires of such lines; provided, that the same shall not in any instance be so constructed as to incommode the public in the use of said roads or highways, or endanger or injuriously interrupt the navigation of said waters; nor shall this act be so construed as to authorize the erection of any bridge across any of the waters of this state.’

‘ Sec. 3471. The provisions of this chapter shall apply also to any company organized to construct any line or lines of telephone; and every such company shall have the same powers and be subject to the same restrictions, as are herein prescribed for magnetic telegraph companies.’

‘ Sec. 3456. Any such company may enter upon any land, whether held by an individual or a corporation, and whether acquired by purchase or...