Home Telegraph Co. v. City Council of Nashville

• Decision Date: 23 March 1907
• Citation: 101 S.W. 770,118 Tenn. 1
• Parties: HOME TELEGRAPH CO. v. MAYOR AND CITY COUNCIL OF NASHVILLE.
• Court: Tennessee Supreme Court

101 S.W. 770

118 Tenn. 1

HOME TELEGRAPH CO. v. MAYOR AND CITY COUNCIL OF NASHVILLE.

Supreme Court of Tennessee.

March 23, 1907

Appeal from Chancery Court, Davidson County; John Allison Chancellor.

Suit by the Home Telegraph Company against the mayor and city council of Nashville. From a decree of the Court of Chancery Appeals reversing the decree dismissing complainant's bill defendants appeal. Decree of Court of Chancery Appeals reversed, and complainant's bill dismissed.

J. C Bradford and Smith & McAlister, for appellants.

Baxters and Luke Lea, for appellee.

WILKES J.

The complainant is a telegraph company, organized on the 26th January, 1906, under section 8, c. 142, p. 243, Acts 1875.

It sought to enter the city of Nashville with its lines and plant, and was denied the right to use the streets and alleys of the city for that purpose by the mayor and city council. This bill is to enjoin the mayor and city council, which will be hereafter referred to as the city, from preventing said entrance and occupying the streets, alleys, avenues, squares, and public thoroughfares, by placing thereon poles, wires, cross-arms, guides, braces, and other necessary fixtures, for the installation and operation of its system or plant in the city of Nashville.

An injunction was granted, which was afterwards dissolved. An answer was filed, proof was taken, and on final hearing the chancellor refused to grant the relief prayed for, and dismissed complainant's bill; and the complainant appealed. The Court of Chancery Appeals reversed the holding of the chancellor, and the city has appealed to this court.

The purpose of the company is stated in the bill and charter to be to construct a telegraph line from Franklin, in Williamson county, to Goodlettsville, in Davidson county, and in doing so it claims the right by law to erect all necessary fixtures along the line of any public highway, or the streets of any village or city, or any lands belonging to the state, free of charge; and such is the provision of its charter.

It proposes, not only to pass over the streets, alleys, and highways of the city, but to install not less than 30 instruments therein, with the latest improvements, appliances, and inventions, for the operation of a telephone system or business in the city, and between the city and other points beyond its limits.

Its purpose is thus expressed in section 4 of the bill: "Complainant purposes and intends to erect its poles and wires over and along the streets and alleys of the several cities hereinbefore mentioned, and the highways and public roads connecting them, for the purpose of establishing numerous terminals or stations, where it will receive and transmit messages over its own lines to any address within the city of the forwarder, or in any of the aforesaid cities, or to transmit said message by means of intertraffic arrangements with other telegraph companies, which are being negotiated successfully at present, to the cities throughout the country. * * * It will establish at its public and private stations both telegraph and telephone instruments, utilizing the latest improvements and inventions in the science of telegraphy, which permit the same wire to be used at the same time for the transmission of messages through both of said instruments."

The city in its answer says that it has not granted or given any permit or license to complainant to occupy the city, and that it is barred from doing so by an ordinance of the city, which is in these words:

"It shall be unlawful for any person, firm or company, or corporation, to erect and run wires along, over or through the streets or alleys of the city, or over the private property or grounds of any person in the city, for signalling or electrical purposes, without first obtaining the consent of the mayor and city council to do so; and any person, firm, etc., who shall violate the provisions of this section shall be deemed guilty of a misdemeanor and fined before the judge of the city court, not less than $25 nor more than $50 for each offense."

The contention of the city is, in brief, that no telegraph or telephone company can occupy its streets, without first obtaining its consent, and that under its charter, being chapter 204, p. 405, Acts 1899, it has the right to prescribe the mode and manner in which a franchise, or permit, shall be granted by the city.

Complainant claims the right to occupy the streets of the city, without its consent, and over its protest, under chapter 111, p. 303, Acts 1849-50, section 1316, Code 1858, section 8, c. 142, p. 243, Acts 1875, and chapter 66, p. 120, Acts 1885.

The Code of 1858, following the act of 1849-50, provided that any person or corporation may "construct a telegraph line along the public highways and streets of this state or other lands belonging to the state, free of charge, * * * and may erect the necessary fixtures therefor."

The act of 1875 provides that a telegraph corporation may construct a telegraph line and erect the necessary fixtures along the line of any public highway, the streets of any city or village, etc.

Acts 1885, p. 120, c. 66, provides that "any person or corporation, organized by virtue of the laws of this state, * * * for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence, the equivalent thereof which may be hereafter invented or discovered, may construct, operate and maintain such telegraph, telephone, or other line necessary for the speedy transmission of intelligence, along and over the public highways or streets of the cities and towns of this state," etc.; "but the ordinary use of such public highways, streets," etc., "shall not be obstructed," etc.

It is said that this latter act is unconstitutional.

The objection is that it does not appear from any entry on the journal of the House of Representatives that it was ever signed by the speaker of the House in open session.

The constitutional provision brought in question is section 18 of article 2, and is in these words: "No bill shall become a law until it shall have been * * * signed by the respective speakers in open session, the fact of such signing to be noted on the journals," etc.

This provision has been before this court on several occasions; but we consider its proper construction as still an open question.

In Railroad v. Telegraph Company, 101 Tenn. 66, 46 S.W. 571, 41 L. R. A. 403, the constitutionality of this same act was challenged upon the same ground; but, it not being necessary to pass upon it, the court declined to do so, saying that it was a question of grave difficulty and doubt.

The facts are that the act as enrolled and deposited in the office of the Secretary of State is signed by both the speaker of the Senate and the House, and is approved by the Governor; and it so appears in the acts published by the authority of the state. There is no entry on the House Journal showing that this act was signed by the speaker of the House in open session; but there is an entry on the House Journal, showing that the bill was transmitted to the House from the Senate for the signature of its speaker, on the afternoon of March 24, 1885, and there is an entry on the Senate Journal on the same afternoon recording a message, signed by the clerk of the House, and stating that the said act had been signed by the speaker of the House of Representatives. And the Senate Journal contains a further entry that the bill was signed by the speaker of the Senate.

We refer to the following cases as bearing, more or less, upon the question.

In State v. McConnell, 71 Tenn. 341, the court, in discussing whether a statute enrolled and signed by the respective speakers, and approved by the Governor, could be attacked on account of procedure in its enactment, and the journals looked to, said: "The bill concedes that the act under consideration was signed by the speakers of both houses of the Legislature and by the Governor. Under these circumstances, the presumption in favor of the regularity of the passage of the act, through all its stages, is so strong, that the mere failure of the journal of the Senate to show a second reading, if the fact be that way, would not affect its validity, but would be treated as a mere clerical omission."

In the case of Gaines v. Horrigan, 72 Tenn. 611, the court said: "Many authorities are referred to to show that notwithstanding an act has the signature of the two speakers and the approval of the Governor, and is published by the proper authority, nevertheless the court may look to the journals of the two houses; and if from them it appears that the bill was not constitutionally passed, the act must be declared void. Such seems to be the decided weight of authority."

In Williams v. State, 74 Tenn. 553, the court said: "The only question, therefore, that is raised by these facts is whether the failure of the journal of the House to show affirmatively that the bill received, on its third reading, the constitutional majority, is fatal. The rule is that the journals may be looked to in order to determine whether the bill was in fact passed, but the very reasonable presumption must be made in favor of a legislative body acting in the apparent performance of its legal function."

In Brewer v. Mayor, 86 Tenn. 737, 9 S.W. 168, the court, in deciding the same question, said: "We hold now that irregularities will be cured and omissions supplied by presumptions; but, where it appears that a bill was rejected, the journal entry so showing cannot be disregarded, and the act is void."

In the case of State ex rel. v. Algood, 87 Tenn. 163, 10 S.W. 310, the Senate Journal showed that the statute in question had been rejected...