Clark v. Interstate Indep. Tel. Co.
| Decision Date | 21 December 1904 |
| Citation | 72 Neb. 883,101 N.W. 977 |
| Parties | CLARK v. INTERSTATE INDEPENDENT TELEPHONE CO. |
| Court | Nebraska Supreme Court |
1. A taxpayer of a city cannot maintain a suit to prevent the city from granting a franchise to a telephone company, unless the franchise constitutes such a wrongful squandering or surrendering of the money or property of the city that taxation will be increased thereby.
2. The remedy to set aside a franchise irregularly or fraudulently granted, where the party to whom it has been granted is in the exercise of the privileges it confers, is by quo warranto at the suit of the state, and not by an equitable action at the suit of private parties.
Commissioners' Opinion. Error to District Court, Douglas County; Day, Judge.
Action by George W. Clark against the Interstate Independent Telephone Company. Judgment for defendant, and plaintiff brings error. Affirmed.W. W. Morsman, for plaintiff in error.
W. C. Lambert and T. J. Mahoney, for defendant in error.
Plaintiff, as a taxpayer in the city of South Omaha, brought this action for the purpose of having a franchise ordinance granted to the defendant by the mayor and council of the city of South Omaha declared void, and to have defendant restrained from proceeding under its franchise, and occupying the public streets and thoroughfares of the city in the construction and installation of its telephone system. The petition is carefully drawn and quite lengthy, setting up numerous alleged defects in the proceedings of the mayor and council, both in the passage of the ordinance, and in the notice and conduct of a special election called for the purpose of submitting such proposition to the voters of the city. Defendant interposed a demurrer to plaintiff's petition, which was sustained by the trial court; and, plaintiff refusing to further plead, his petition was dismissed, and he brings error to this court.
There is no claim in the petition that any of the lines of the defendant company, or any poles erected in the construction of its lines, pass over, upon, or near any streets upon which plaintiff's property abuts, or, in other words, there is no claim of any special injury to plaintiff or his property which would not be shared by every other taxpayer of the city; nor is it alleged that any tax has been levied or any contract entered into by the city with the defendant company which would entail any liability against the taxpayers of the city. On the contrary, it clearly appears from the allegations of the petition that an annuity of $100 a year for the first five years of the franchise, and of $200 for the remaining five years, was exacted by the city council from the defendant company as a condition of the granting of the franchise for a period of ten years. The ordinance alleged against in the petition makes no attempt to grant an exclusive fran chise for the purpose therein specified to the defendant company, so that if plaintiff has any right, simply as a taxpayer, to maintain this cause of action, it must be founded either on the proposition that the mayor and council of the city are without any original right or authority to grant the franchise under the charter and ordinances of the city, and that plaintiff and those for whom he sues will be injured by such grant, or that the franchise so granted is a property right held in trust for all the taxpayers of the city, which has been illegally dissipated by the ordinance alleged against. On the first proposition it is conceded and plainly made to appear by the charter and ordinances of the city that the mayor and council, under proper proceedings, had and have the right to grant the franchise. It is claimed, however, by the learned counsel for plaintiff in error, that...
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