Home Tel. & Tel. Co. v. City of Los Angeles

• Decision Date: 08 July 1907
• Docket Number: 1,243.
• Citation: 155 F. 554
• Court: U.S. District Court — Southern District of California
• Parties: HOME TELEPHONE & TELEGRAPH CO. v. CITY OF LOS ANGELES et al.

155 F. 554

HOME TELEPHONE & TELEGRAPH CO. v. CITY OF LOS ANGELES et al.

No. 1,243.

United States Circuit Court, S.D. California, Southern Division.

July 8, 1907

[Copyrighted Material Omitted]

This suit was brought to restrain the enforcement of two ordinances attached to the bill, respectively, as Exhibits C and D, and hereinafter more fully set forth.

The allegations of the bill are substantially as follows:

The city of Los Angeles exists, and since 1888 has existed, under a freeholders' charter.

That by section 2 of said charter said city is vested with power to provide and maintain a proper and efficient fire department and make and adopt such rules and regulations for the preservation of property endangered by fire as may by it be deemed expedient, and to make and enforce within its limits local police, sanitary, and other regulations deemed by it expedient to maintain the public peace and protect property and to exercise all municipal powers necessary to the complete and efficient management and control of municipal property and for the efficient management of the municipal government, whether such powers be expressly enumerated in such charter or not, except such powers as are forbidden or are controlled by general laws.

That all legislative power of said city is vested in the city council, subject to the power of veto and approval by the mayor.

That under section 31 of said charter said council has power by ordinance to regulate telephone service and the use of telephones within the city and to fix and determine the charges for telephone and telephone service and connections and to prohibit or regulate the erection of poles for telephones, telegraph or electric wires in the public grounds, streets, or alleys of said city, and the placing of wires thereon, and to require the removal from the public grounds, streets, or alleys of any or all such poles and the removal and placing under ground of any or all telegraph, telephone, or electric wires.

That by section 33 of said charter the council is required by ordinance to provide for maintaining a fire alarm and police telegraph system.

That 'it is further provided in and by said charter that said council shall also have full power to pass ordinances making contracts and upon any other subject of municipal control or to carry into effect any other powers of the municipality.' That prior to December 9, 1901, an application was filed with the governing or legislative body of defendant by M. A. King for a franchise to construct, maintain, and operate a telephone system, and that, on the 6th day of February, 1902, an ordinance, attached to the bill as Exhibit B, was passed granting said franchise, and that all the steps and proceedings required by law and the provisions of said charter for the advertisement and sale of said franchise and the approval thereof, and all other matters connected therewith, were duly had and taken.

That, by regular assignments from M. A. King and others, plaintiff became and now is the owner of said franchise and telephone system.

That immediately upon the taking effect of said ordinance as aforesaid the assignors of this plaintiff, pursuant to the terms thereof, commenced the work of constructing and laying down the conduit required by said ordinance in the district therein described, and continuously prosecuted said work in good faith and completed the same in full compliance with the conditions of said ordinance relating thereto, and within the period therein prescribed, so that within said period a complete conduit system was established of sufficient capacity and extent to accommodate at least 10,000 subscribers and to provide a general telephone service in all parts of said telephone conduit district, and that likewise the said assignors of this plaintiff did, pursuant to the terms and conditions of said ordinance and in good faith, expend for material and labor used and performed in the construction and installation in connection therewith of wires, switchboards, and telephonic apparatus and appliances, and within the time specified in said ordinance, sums greatly in excess of the sums therein specified to be so expended, and did so expend more than the sum of $200,000 within 36 months after the grant of said franchise.

That the assignors of plaintiff did also, within the periods of said ordinance provided, after the grant of said franchise, file a statement, verified as therein provided, showing in detail the sums expended as required by and in compliance therewith, and did also cause to be erected and maintained poles of a size and character satisfactory to the street superintendent of said city of Los Angeles, and that the assignors of said plaintiff and this plaintiff have executed and complied with and observed, and that the said defendant the city of Los Angeles has never at any time claimed or pretended that plaintiff's assignors and this plaintiff had not executed, complied with, and observed the terms, covenants, and provisions of said ordinance as aforesaid.

That all of the work done and performed by plaintiff's assignors and by this plaintiff as aforesaid, and the expenditures made by it for any and all equipment and appliances as aforesaid, were made, done, and performed pursuant to and in reliance upon the terms, covenants, and provisions of said Ordinance No. 6,959 of said city of Los Angeles, and not otherwise, and that the system of plaintiff in said city of Los Angeles is now and at all times has been maintained and operated pursuant to and in reliance upon the terms, conditions, and covenants of said ordinance and not otherwise, and that plaintiff has no rights of property in the said city of Los Angeles except such as were acquired under the said Ordinance No. 6,959.

That pursuant to the powers vested in it by law and the provisions of said charter, and in order to provide for maintaining a fire system and police telegraph system, the said defendant the city of Los Angeles required in and by section 8 of the said ordinance that this plaintiff should furnish to the said city of Los Angeles, if required by it, free of any charge at all during the life of the said franchise granted by said ordinance, the use of all necessary conductors, not exceeding 150 pairs in said conduit, for the uninterrupted use of a fire system and police system of said city, and for like purpose the free use of the top cross-arm on each of the poles erected or maintained under said franchise during the whole term thereof; that this plaintiff, in constructing and laying said conduits and in constructing and erecting its pole lines and in providing its equipment, made provision for said 150 pairs of lines in said conduits and for the maintenance and operation thereof, and provided that said top cross-arms on each of said poles, and in all respects and at additional cost and expense to it arranged to comply with such provisions of said ordinance, and is now, and at all times has been, able and willing to furnish said conductors, and has as aforesaid reserved the top cross-arm on each of said poles for the use of said city.

That it is also provided in and by section 8 of said ordinance that there shall be furnished to the said city of Los Angeles, free of any charge, 30 telephones which shall be connected with the telephone system of plaintiff, and that this plaintiff did, within the time provided and specified in said franchise, so furnish to the defendant said 30 telephones, and did connect the same with the telephone system of this plaintiff, all at its own cost and expense, and without charge to the said city of Los Angeles, and that the said city of Los Angeles is now, and ever since has been, using free of charge as aforesaid the said 30 telephones.

That section 1 of said ordinance provides: 'That said conduit, said poles, and the wires inclosed therein or attached thereto, shall be constructed, erected and installed, and at all times maintained, and said right, privilege and franchise is hereby granted, and shall at all times be exercised and enjoyed, in accordance with and subject to each and every of the terms of this ordinance and not otherwise.'

That section 9 of said ordinance provides: 'That all telephone lines constructed or operated under said franchise shall have complete copper metallic circuits, and that the conduit system constructed and laid down under said franchise shall be of such size and capacity as to accommodate wires, cables and conductors, sufficient to provide for ten thousand telephones. That the rent or charge for unlimited, independent, metallic circuit, telephone service, in the system established or maintained under said franchise so long as said system does not connect and exchange with more than 10,000 telephones, shall not exceed $60 per annum for a telephone installed in any business office or premises, or $30 per annum for a telephone installed in a private residence, and that when said system shall comprise more than 10,000 telephones, the annual rental or charge for the telephone service shall not be increased by more than a sum equal to $6.00 per annum for each one thousand telephones in said city connected with said telephone system in excess of 10,000.'

That the rate established by said franchise was at said time lower than any which had ever been charged for telephones in said city, and lower than any other company than plaintiff now charges for telephone service in said city, and that there was not at any of the times herein mentioned any system of telephone lines with complete copper metallic circuits, other than the system of plaintiff.

That at the time of the advertising and sale of said franchise there was in operation in said city of Los Angeles one system of telephonic...