Hodges v. Western Union Telegraph Co.

Citation18 So. 84,72 Miss. 910
CourtMississippi Supreme Court
Decision Date20 May 1895
PartiesGEORGE M. HODGES, CITY TAX COLLECTOR, ETC., v. WESTERN UNION TELEGRAPH COMPANY

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

Action by the city of Meridian against the Western Union Telegraph Company, to recover rent claimed to be due for the use, by the defendant, of the streets of the city for its telegraph poles. The demand is based upon an ordinance of the city passed in June, 1893, requiring all telegraph companies doing business in the city to pay, as rent to the city, the sum of $ 2.50 per annum for each telegraph pole erected and used in the streets, alleys and public places therein. The sole question presented is the validity of said ordinance. The facts touching this question sufficiently appear in the opinion. The case was tried in the circuit court, without a jury, and resulted in a judgment for the defendant.

Affirmed.

Cochran & Bozeman, for appellant.

The ordinance is copied from an ordinance of the city of St Louis, the validity of which was sustained in the case of St. Louis v. Telegraph Co., 148 U.S. 92. It was conceded that, if the charter of Meridian confers as complete control over its streets as does the charter of St. Louis, appellant should have had judgment. The charter of Meridian gives it full power to keep in repair all necessary streets, alleys, avenues, etc., and to pass all necessary regulations for the same. It gives the city full power to regulate the use of streets. In the said case of St. Louis v. Telegraph Co., on rehearing (149 U.S. 465), the court said: "The word 'regulation' is one of broad import. It was a word used in the federal constitution to define the powers of congress over foreign and interstate commerce, and he who reads the many opinions of this court will perceive how broad and comprehensive it has been held to be." The court in that case further says: "Unless, therefore, the telegraph company has some superior right which excludes it from subjection to this control of the city over its streets, it would seem that the power to require payment of some reasonable sum for the exclusive use of a portion of its streets was within the grant of power to regulate the same."

The charter of Meridian further gives the power to pass all ordinances, by-laws and resolutions necessary and requisite for the government of said city and the welfare of its inhabitants, provided the same shall not be contrary to the constitution and laws of the state. It seems difficult to frame a provision broader and more sweeping than this. The charter, moreover, empowers the city to grant rights of way to railroad companies for the construction of railways over the streets and through and over the public property of the city. Certainly this is a recognition of the rights as to the streets and public property of the city.

Mayes & Harris, for appellee.

The case of St. Louis v. Telegraph Company, 148 U.S. 92, is not authority in this case unless it can be shown that the city of Meridian stands upon the same footing as the city of St. Louis, as to its powers. In that case the court says that the city of St. Louis occupies a unique position. Its powers were not derived by legislative grant, but it framed its own charter under express authority of the people of the state, given in the constitution. Its charter is an organic act, and the city of St. Louis is in a just sense an imperium in imperio. On the contrary, the charter of the city of Meridian and the powers of its municipal authorities come directly from the legislature, and the legislature, so far as regards the rights of the city over its streets, possesses unlimited control. See 15 Am. & Eng. Enc. L., 988; 24 Iowa 455; 25 N.Y. 526; 27 Ib., 188; 14 Wis. 609; 36 Pa. St., 99; 13 La. Ann., 326; 88 Am. Dec. 148; 15 B. Mon. (Ky.), 642; 34 Iowa 249; 88 Ill. 317; 47 Pa. St., 349; 45 Iowa 338; Dill. Mun. Cor., § 702, and cases cited in note; Meriwether v. Garrett, 102 U.S. 472. Our contention does not in any way entrench upon the rights of abutting owners or private individuals whose property is affected by the use of the streets. The act of 1886 makes no provision for compensation to cities, but only provides for compensation where private rights are invaded. The right of the telegraph company, in this case, rests upon express legislative permission to use the streets and public highways without compensation. This is not an attempt to evade paying taxes; these are provided for elsewhere. The demand is for rent in addition to taxes. The judgment should be affirmed.

OPINION

WHITFIELD, J.

The ground upon which the ordinance of the city of St. Louis, of which the one in this case is said to be a copy, is placed in 148 U.S. 92, 37 L.Ed. 380, 13 S.Ct. 485, and 149 U.S. 465, 37 L.Ed. 810, 13 S.Ct. 990, is that the city of St. Louis is the absolute owner of the fee in its streets, and the charter powers of the city are "self-appointed." it is expressly declared that St. Louis occupies "a unique position. It does not, like most cities, derive its powers by grant from the legislature, but it framed its own charter under express authority from the people of the state, given in the constitution;" and, again, it is said, "this charter is an organic act, so defined in the constitution, and is to be construed as organic acts are construed. The city is, in a very just sense, an imperium in imperio. Its powers are self-appointed, and the reserved control existing in the general assembly does not take away this peculiar feature of its charter." Treating the city, therefore, as the absolute and uncontrolled proprietor of its streets, rent--which is, like toll, a "demand of proprietorship," and not like a tax, a "demand of sovereignty"--was declared to be within the power of the city to exact. Meridian occupies a very different attitude as to its streets and its power over them. All the power which it has over its streets is derived from the legislature, whose power over them is "supreme and transcendent," to use Judge Dillon's language. We are not advised, by the record, whether the fee in the streets of Meridian is in the city, or whether the city has a mere easement, but it is not denied that the power of the city to deal with the streets is derived wholly from a charter granted by the legislature, and hence, of course, under legislative control.

The legislature, by the act of 1886 (Laws, p. 93, § 1) provided "that any telegraph company chartered by the laws of this or any other state of the United States, shall, upon making due compensation, as hereinafter provided, have the right to construct, maintain, and operate telegraph lines . . on, across and along all . . streets," . . etc.; provided, that "there shall be no interference with the ordinary use of such streets," etc., or with "the convenience of any landowner more than may be unavoidable." The following sections provide for compensation to turnpike and railroad companies, and private owners, for the use and occupation of their "ways," "structures" or lands. No compensation was provided for cities in case their streets should be used, but the use and occupation of so much of the streets of cities as may be reasonably needed for the construction and maintenance of telegraph poles and telegraph lines, is expressly authorized without compensation to the state or to the cities, municipal subdivisions of the state. Without this act, the appellee could not have entered upon the streets of the city of Meridian for the purpose of constructing and maintaining its telegraph lines, and under it it could only have so entered and occupied its streets with its poles by virtue of the right of eminent domain, upon due compensation first made, had not the terms of the act clearly shown that such compensation was dispensed with. Had such compensation been required--such damages awarded, in such exercise of the delegated right of eminent domain, such compensation would have been made, such damages awarded, for the use and occupation of said streets by said telegraph company with its poles, wires, etc., and it is this identical use and occupation for which the...

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