Edison Elec. Light & Power Co. of St. Paul v. Blomquist

• Decision Date: 20 March 1911
• Parties: EDISON ELECTRIC LIGHT & POWER CO. OF ST. PAUL et al. v. BLOMQUIST et al.
• Court: U.S. District Court — District of Minnesota

185 F. 615

EDISON ELECTRIC LIGHT & POWER CO. OF ST. PAUL et al. v. BLOMQUIST et al.

United States Circuit Court, D. Minnesota, Third Division.

March 20, 1911

W. D Mitchell, for complainants.

Wondra & Helm, for defendants.

WILLARD District Judge.

On March 31, 1910, the common council of the city of St. Paul passed an ordinance requiring electric light and power companies, telephone, telegraph, and street railway companies at their own expense to remove or displace their wires lawfully in the street when a licensed house mover, who had procured a permit from the city authorities to move a house through the streets, requested them to do so. This bill was filed to restrain Blomquist, a house mover, from interfering with the wires of the complainants in the streets of St Paul, and to restrain the city authorities from enforcing the ordinance; and it is now before the court upon the complainants' motion for a temporary injunction.

The law governing the rights of city councils to regulate public service corporations is not doubtful. In Northern Pacific Railway v. Duluth, 208 U.S. 583, 28 Sup.Ct. 341, 52 L.Ed. 630, it appeared that the railway company, after considerable negotiation with the city, in which it denied its obligation to build a viaduct, in 1891 entered into a contract with the city, which contract provided that the city should build the viaduct, and that the railway company should contribute to the expense of its construction $50,000. The city undertook for a period of 15 years to maintain the bridge over the railway's right of way. In 1903, the viaduct and its approaches having become dangerous to public use, the city adopted a resolution requiring the railway company to repair the bridge, and commenced proceedings by mandamus to compel it to make such repairs. It was held by the Supreme Court that the railway company could be compelled at its own expense to repair the viaduct, notwithstanding the contract previously made.

In West Chicago Railroad v. Chicago, 201 U.S. 506, 26 Sup.Ct. 518, 50 L.Ed. 845, it appeared that the railroad company under the authority of the city council of Chicago had built a tunnel under the Chicago river. After the completion of this tunnel, it became necessary to deepen the channel of the river, for the purpose of public navigation and to lower the tunnel. It was held that the ordinance of the city requiring the railroad company to do this at its own expense was valid. The court said, on page 526 of 201 U.S. on pages 523, 524 of 26 Sup.Ct. (50 L.Ed. 845): 'What the city asks, and all that it asks, is that the railroad company be required, in the exercise of its rights and in the use of its property, to respect the public needs as declared by competent authority, upon reasonable grounds, to exist. This is not an arbitrary or unreasonable demand. It does not, in any legal sense, take or appropriate the company's property for the public benefit, but only insists that the company shall not use its property so as to interrupt navigation.'

In New Orleans Gas Co. v. Drainage Comm., 197 U.S. 453, 25 Sup.Ct. 471, 49 L.Ed. 831, it was held that the changing of the location of gas pipes, at the expense of the gas company, under the streets to accommodate a system of drainage, did not amount to a deprivation of property without due process of law.

In Cincinnati, Indianapolis & Western Railway Company v. City of Connersville (Supreme Court, November 28, 1910) 218 U.S. 336, 31 Sup.Ct. 93, 54 L.Ed. 1060, the court said:

'The question as to the right of the railway company to be reimbursed for any moneys necessarily expended in constructing the bridge in question is, we think, concluded by former decisions of this court. * * * The railway company accepted its franchise from the state, subject necessarily to the condition that it would conform at its own expense to any regulations, not arbitrary in their character, as to the opening or use of streets, which had for their object the safety of the public, or the promotion of the public convenience, and which might, from time to time, be established by the municipality, when proceeding under legislative authority, within whose limits the company's business was conducted.'

In all of the cases above referred to there was no doubt but that the expense required was for a public purpose. In the Duluth Case it was for the purpose of making a street safe for general traffic; in the Chicago Case it was for the purpose of making a river deep enough for navigation; in the New Orleans Case it was for the purpose of preserving the health of the city; and in the Connersville Case it was for the purpose of opening a street for the purpose of public travel.

Where, however, a city ordinance or a state law requires something to be done by a public service corporation at its own expense, which is for a private purpose, such ordinance or law does deprive the company of its property without due process of law.

In Missouri Pacific Ry. v. Nebraska, 217 U.S. 196, 30 Sup.Ct. 461, 54 L.Ed. 897, it appeared that a statute of Nebraska required railroad companies at their own expense to construct side tracks to the outer edge of their right of way, whenever required to do so by a person who had erected a grain elevator upon land adjacent to the right of way. This statute was held invalid. The court said, on page 206 of 217 U.S., on page 462 of 30 Sup.Ct. (54 L.Ed. 897):

'It is also true that the states have power to modify and cut down property rights to a certain limited extent without compensation, for public purposes, as a necessary incident of government-- the power commonly called the police power. But railroads after all are property protected by the Constitution, and there are constitutional limits to what can be required of their owners under either the police power or any other ostensible justification for taking such property away.'

And on page 207 of 217 U.S., on page 462 of 30 S.Ct. (54 L.Ed. 897):

'Why should the railroads pay for what, after all, are private connections? We see no reason.' While, as has been said, the law is not doubtful, yet the difficulty in this case is in determining in which class this suit falls. Some of the uses of a street are admittedly public, as that for travel over it; others are admittedly private, as the deposit of materials in the street in front of a lot on which a building is to be constructed, the use of the sidewalk for the display of goods, and the hanging of signs over a street. To which of these two classes does the removal of houses belong? The fact that the common council is given by the city charter the right to regulate this subject does not necessarily show that the use of the streets for the moving of houses is a public use. The council has the same right to regulate the deposit of building materials, the hanging of signs, and the use of the sidewalks by tradesmen.

No one would claim that the city would have a right to compel these corporations to remove at their own expense their poles set in the street in front of a lot, in order that the owner of the lot might deposit building materials on the street preparatory to erecting a house on it. The city could not compel the companies to remove at their own expense their poles and wires to allow the owner of buildings facing each other across an alley or a street to build a passageway over the street or alley for the purpose of connecting the two buildings. Townsend, Grace & Co. v. Epstein, 93 Md. 537, on page 555, 49 A. 629, on page 632 (52 L.R.A. 409, 86 Am.St.Rep. 441). In that case the court said:

'The corporation, the mayor and city council of Baltimore, is invested with the title to and control over the public streets. This control, however, is not arbitrary control. The streets and highways are held in trust for the benefit, use, and convenience of the general public. There are many ways in which the power to control and regulate the use of the streets can be and must be exerted by the municipality to meet the necessities and the convenience of an urban population; but the exertion of this power must have for its object a public purpose. It is not in accord with the trust upon which the municipality holds the streets, nor with the nature of the control which it has over them to make use of the power and authority with which it is invested in that regard to promote a mere private purpose, to subserve a mere private interest, or to subordinate the right of one citizen in the streets, or in a street of the city to the private interest and convenience of any other.'

To use the language of that case: Was the ordinance complained of in this case passed to subserve a public purpose, or does it subserve a mere private purpose and private individual interests? Or, to use the language of the latest Supreme Court decision in the Connersville Case: Did the ordinance have for its object 'the safety of the public, or the promotion of the public convenience'?

The defendant Blomquist says in his brief, on page 5:

'Thousands of citizens of the United States buy buildings for the purpose of moving them along the streets of cities. Municipalities oftentimes move buildings along their streets. It is a privilege granted to the public for its welfare so that it may pursue such reasonable and profitable investments or vocations as may be for their interest. If the right to move a house along the streets is denied to these defendants the right is likewise denied to each citizen to remove his building and oftentimes in cases of necessity and the right is likewise denied to the municipality itself.' The same may be said of thousands of persons who build upon lots and deposit their materials on the street with the consent of the city. To hold that this ordinance...