Farmers' Tel. Co. of Quimby v. Town of Washta
| Decision Date | 20 November 1911 |
| Citation | 133 N.W. 361,157 Iowa 447 |
| Parties | FARMERS' TELEPHONE CO. OF QUIMBY v. TOWN OF WASHTA ET AL. (IOWA TELEPHONE CO., INTERVENER). |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cherokee County; Wm. Hutchinson, Judge.
Action in equity. The nature of the controversy and the material facts are stated in the opinion. Affirmed.
McClain, J., dissenting.J. D. F. Smith and Guernsey, Parker & Miller, for appellants.
The facts, as we derive them from the abstract and amended abstract, are substantially as follows: In the year 1898, the Iowa Telephone Company, intervener herein, entered into negotiation with officers of the town of Washta, with the view of obtaining a franchise for the establishment and operation of a telephone exchange in that municipality. An ordinance, granting such franchise, was prepared and introduced into the town council, and it is the claim of the appellants that such ordinance was duly passed and became effective on May 16, 1898. The only record evidence of such passage shown in the testimony is found in the clerk's minutes of the proceedings of the council, and reads as follows:
It is also the claim of appellants that this ordinance or grant was approved by vote of the electors of the town at an election duly called for the purpose. The only record of the calling or holding of such election, or of its result, is found in a minute entered in the clerk's book as follows:
It is further claimed by the intervener that soon after the date last above mentioned it executed a written acceptance of the terms of said ordinance No. 33, and sent the same by mail to the proper officers of the town.
The terms of said ordinance purport to grant to the Iowa Telephone Company the right for a term of 25 years to erect and maintain upon the streets, alleys, and public highways of the town a telephone system for the convenience of its people. In the fall of 1898, the intervener extended a telephone line from the city of Cherokee to the town of Washta. Subsequently, beginning at a point several miles out from the town of Washta, this line was connected with another, extending to Correctionville. No local exchange or switchboard was furnished, and the line as constructed and used was available only as a toll line for those who might wish to have communication with other towns covered by the Iowa Telephone Company's system. About October 1, 1907, the intervener executed to one F. L. Cooper a lease of the use of its “exchange located at Washta, Iowa,” “together with the right to exercise the rights and franchises of the Iowa Telephone Company in maintaining, operating, and executing the rights and franchises of the Iowa Telephone Company in maintaining, operating, and executing said exchange,” for a period of five years.
On April 8, 1908, Cooper, in writing, undertook to assign all his rights under said contract of lease to the Farmers' Telephone Company, of Quimby, Iowa, the plaintiff in this action. On April 13, 1908, this action was begun against the town of Washta and its officers, setting up said lease, alleging that the exercise of said company's rights under the lease are being interfered with by the defendants, and asking that they be restrained and enjoined from interfering with its poles and wires, and from in any manner obstructing the efforts of said plaintiff to extend, enlarge, and maintain its telephone system in said town. The defendants appear, and by answer deny that any franchise was ever in fact granted to the Iowa Telephone Company, and deny that the alleged ordinance No. 33 was ever properly enacted by the council, or approved by vote of the electors. They admit having interfered with and have forbidden the plaintiff to set certain poles and string certain wires which it was attempting to place upon the streets of the town, without lawful right, and in violation of the regulations duly prescribed by said town. The Iowa Telephone Company makes itself a party to this action by intervention, and in effect unites with the plaintiff in praying for an injunction, and to this petition the defendants plead practically the same defenses. The pleadings, which are very prolix and somewhat complicated, contain much other matter which, so far as necessary to be considered, will be mentioned later. The trial court found for the defendants, and dismissed both the original bill and the petition of intervention. Plaintiff and intervener appeal.
It should also be said that, pending the proceedings below, a temporary injunction was issued, under protection of which the plaintiff set its poles, strung wires, and established a local telephone exchange, and that upon the final hearing the injunction was dissolved, and the plaintiff ordered to remove the wires and poles so placed, and to cease from any attempt to establish or operate such exchange.
[1] 1. The position of the appellants is that the disputed ordinance No. 33 and the intervener's alleged acceptance thereof constitute a contract between the town and the intervener, and that by the lease to Cooper and the assignment above mentioned plaintiff has succeeded to the intervener's right to erect and maintain a local telephone system. The power of the town to make grants of such franchises or to enter into contracts of the nature is of course such only as is conferred upon it by statute. At the date in question, the power and the manner in which it might be exercised had been fixed and defined by legislative enactment (Code, §§ 775 and 776). By its terms, no franchise could be granted for the use of the public streets and ways, unless a majority voting thereon favor the same at a general election, or one specially called for that purpose. That vote is to be procured by an order of the council, submitting the question to be voted upon. Notice thereof is to be given in the manner and for the time specified in the statute, and the duty of preparing the ballot is placed upon the clerk. Except the brief memorandum already quoted, under date of August 5, 1898, the town records are wholly blank upon the proposition whether the council ever ordered the submission of the approval of this franchise to the voters, whether notice of such action was ever published as required by law, or whether such election was ever held. Moreover, the sole record of the passage of the ordinance, if passed at all, shows it to have been upon its first reading, under suspension of the rules; but neither upon this proposition nor upon final passage is there any record of yeas and nays, as the statute requires (Code, § 683), nor is it recorded that the vote was unanimous.
To aid this confessedly very imperfect showing, a witness was introduced, who testified that in 1898 he was publishing a paper in Washta, and produced a copy of said newspaper, containing what purports to be a printed report of the proceedings of the town council, at which a motion was made for the calling of an election; but even this report, if otherwise competent, fails to show that said motion was ever put to the council, or voted upon by its members. The same paper also contains a purported copy of a notice of election, and it is admitted that this notice was published in said paper for four weeks ending August 4, 1898.
Testimony was also offered by two witnesses, who were members of the town council of 1898, who state their personal recollection that the vote upon passage of the ordinance was unanimous, and one of the members that at another meeting, of which there seems to be no record of any kind, an order for an election was also voted.
This and all other evidence extrinsic of the records of the town council was introduced subject to the objection of the defendants as to its competency. Other evidence offered, which we do not stop to specifically set out, does not, in our opinion, add to or detract from the strength of the plaintiff's case as developed in the recitation of facts already given. We regard it clear that there is a failure of proof of the granting of a franchise to the intervener, pursuant to the statute then and now in force. Whether such grant may be by resolution, or must be by formal ordinance, it can be validly enacted only by a vote in meeting duly assembled, upon which vote the yeas and nays must be “called and recorded.” Code, § 683. No presumption can be indulged in this respect. Olin v. Meyers, 55 Iowa, 209, 7 N. W. 509;Markham v. Anamosa, 122 Iowa, 692, 98 N. W. 493;Cook v. Independence, 133 Iowa, 582, 110 N. W. 1029;Rich v. Chicago, 59 Ill. 286. Nor can this omission be cured by parol evidence. Cook v. Independence, supra; McCormick v. City, 23 Mich. 457;Stevenson v. City, 26 Mich. 44;Pickton v. Fargo, 10 N. D. 469, 88 N. W. 90;Morrison v. Lawrence, 98 Mass 219. It is the recorded yea and nay vote which the statute requires and not the mere fact of such vote. To hold that a fact which the statute provides shall be made a matter of official record may be established by parol would amount to judicial repeal of a legislative enactment.
This is not an action to correct a record, nor is it a case of a lost record, of the contents of which secondary evidence is offered; but it is an attempt to establish a legislative act of a town council as it happens to be registered in the uncertain recollections...
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City of Pella v. Fowler
...the ordinance must then have been submitted to the electors at a general or special election for their approval. Farmers' Telephone Co. v. Washta, 157 Iowa, 447, 133 N. W. 361;Smith v. City of Osceola, 178 Iowa, 200, 159 N. W. 648. The ordinance in question was designed to give effect to th......
- Farmers' Tel. Co. of Quimby v. Town of Washta