Dakota Cent. Telephone Co. v. City of Huron

• Decision Date: 03 November 1908
• Citation: 165 F. 226
• Parties: DAKOTA CENTRAL TELEPHONE CO. v. CITY OF HURON.
• Court: U.S. District Court — District of South Dakota

165 F. 226

DAKOTA CENTRAL TELEPHONE CO. v. CITY OF HURON.

United States Circuit Court, D. South Dakota.

November 3, 1908

This cause has been submitted upon bill, cross-bill, answers thereto, and a stipulation of facts. From the stipulation the following material facts appear:

The Dakota Central Telephone Company is a corporation duly incorporated under the laws of the state of South Dakota on August 30, 1904, with power to purchase, lease, construct and operate telephone lines and exchanges. The defendant is a municipal corporation of South Dakota. On January 28, 1898 at the request of one J. L. W. Zeitlow, the city council of the defendant duly passed the following ordinance:

'An ordinance granting to J. L. W. Zeitlow the right to erect and maintain poles and wires on the streets and public ways of the city, upon the conditions herein provided.

'The city council of the city of Huron do ordain as follows:

'Section 1. Be it ordained by the city council of the city of Huron, South Dakota, that the right is hereby granted to J. L. W. Zeitlow, his successors or assigns, to place, construct and maintain upon and through the streets and alleys and public grounds of said city all poles, posts and other supports, and all wires and fixtures proper and necessary for supplying to the citizens of said city and public communication by telephone and other improved appliances, subject, however, to all conditions and stipulations herein set forth.

'Sec. 2. All poles, supports or wires placed shall be so done under the supervision of the street committee and the same shall be splaced and the wires therein secured and kept at such elevation as to reasonably avoid danger to persons and adjoining property. No part of such poles, supports or wires shall interfere with the proper use of said streets for other lawful purposes; nor be so placed as to make cutting of shade trees necessary; and such poles shall be reasonably straight and maintained in good repair.

'Sec. 3. Said poles shall not be set so as to interfere with the construction, placing or proper maintenance of any water pipe, gas pipe, drain or sewer that has been or may be authorized by said city or in case of bringing to grade of curblines of any street or alley whereupon such poles may have been erected, then the said J. L. W. Zeitlow or his assigns shall change such poles and reset same to conform to such change.

'Sec. 4. The city council hereby reserves the right to grant a like right of way for poles or wires or fixtures of any other telephone, telegraph, electric light or electric street railway company or individuals when the said city so desires, provided the same shall not interfere with the full and proper use and right hereby granted.

'Sec. 5. In consideration of the foregoing, the said J. L. W. Zeitlow, if he shall accept this ordinance, is to allow the city of Huron to place upon its poles, free of charge, such wires as may be necessary for the purpose of maintaining a fire alarm system.

'Sec. 6. This ordinance shall be published according to law and shall take effect only on filing in the office of the city clerk of said city, within ten days after the first publication thereof, of a written acceptance of the terms of this ordinance by said J. L. W.

Zeitlow.

'Sec. 7. That said J. L. W. Zeitlow, his successors or assigns, is to furnish for the city's business, and without charge and with exchange service for both local and long distance telephone, so long as the exchange is maintained hereunder, one telephone at city hall; also such other telephones for the city's business as the city council may hereafter by resolution require at 25 per cent. discount from regular exchange rates.

'Sec. 8. Rates for telephone service shall not exceed $2.50 per month for business houses, hotels, offices, etc., and $1.00 per month for private residences.

'Sec. 9. Work shall be commenced under this franchise within forty-five days from its passage and shall be completed and in operation within four months or this ordinance becomes null and void.

'Sec. 10. The term of this franchise shall be for ten years from and after its passage.

'Passed at a regular session of the city council, March 11, 1898.'

On April 8, 1898, said Zeitlow filed with the city clerk of defendant the following acceptance of said ordinance:

'To the Mayor and Common Council of the City of Huron, South Dakota.

'Gentlemen: I hereby accept the ordinance granted by your honorable body granting me permission to erect poles and fixtures and to string wires on any of the streets, alleys and public grounds of your city for the purpose of establishing and maintaining a telephone exchange within the City of Huron, South Dakota. Respectfully,

J. L. W. Zeitlow.'

Zeitlow duly constructed and completed the telephone lines and system mentioned in said ordinance, and operated the same until the year 1904, when the complainant purchased the same and has ever since owned and operated said telephone system. The complainant has invested in said telephone system the sum of $25,000, and furnishes telephone service to about 820 subscribers therewith. On July 14, 1907, the city council of defendant passed the following resolution, and caused a copy of the same to be served upon complainant:

'Whereas it is the policy of the city of Huron not to grant a franchise to any public service corporation which is not controlled by citizens of the city of Huron; and whereas the franchise of the present telephone company controlled by J. L. W. Zeitlow expires on the 11th day of March, 1908.

'Be it resolved: That no franchise for the purpose of operating a telephone service within the city of Huron will be granted to any company which is not controlled by citizens of Huron;

'Be it further resolved: That a copy of this resolution be at once sent by registered mail to Mr. J. L. W. Zeitlow by the city clerk.'

On January 24, 1908, the city council of the city of Huron passed the following resolution:

'The city council of the city of Huron does hereby resolve that the franchise now held by J. L. W. Zeitlow to maintain telephone system in the city of Huron, which expires on the 11th day of March, 1908, will not be renewed.

'It is further resolved that the Dakota Central Telephone Company now operating in the city of Huron is hereby required to vacate the streets and alleys of the city of Huron at the expiration of the said franchise, and to remove their poles and wires and other apparatus therefrom. And the city clerk of the city of Huron is hereby directed to notify the said Dakota Central Telephone Company and Mr. J. L. W. Zeitlow of the action of this council, passed at a regular meeting of the city council of the city of Huron on the 24th day of January, 1908'--and caused a copy thereof to be served upon complainant. The defendant through its officers threaten to remove by force the poles and lines of complainant's telephone system from the streets of said defendant. On this record complainant prays that the defendant be perpetually enjoined from tearing down and removing its telephone poles and lines as threatened, and the defendant prays by its cross-bill that the complainant be compelled within a reasonable time to remove said poles and lines from its streets for the reason only that the time limit fixed in the ordinance of January 28, 1898, has expired, and that the said poles and lines now constitute a public nuisance.

T. H. Null and W. A. Lynch, for complainant.

A. B. Fairbank and A. K. Gardner, for defendant.

CARLAND, District Judge (after stating the facts as above).

The following provisions of statutory law relate to the questions raised on this record:

'To provide for the lighting of streets and public grounds, the laying down of gas pipes and erection of lamp posts, lines for conveying electric light and telegraph and telephone lines and to regulate the distribution, use and sale of gas and other illuminating fluids. ' Paragraph 11 of section 7 of the charter of the city of Huron.

'No street passenger, railway or telegraph or telephone line shall be constructed within the limits of any village, town or city without the consent of its local authorities. ' Article 10, Sec. 3, Const. S.D.

'There is hereby granted to the owners of any telegraph or telephone lines operated in this state the right of way over lands and real property belonging to the state, and the right to use public grounds, streets, alleys and highways, in this state subject to the control of the proper municipal authorities as to what grounds,...