Hook v. Bowden

• Decision Date: 02 May 1910
• Citation: 128 S.W. 261,144 Mo. App. 331
• Parties: HOOK v. BOWDEN et al.
• Court: Missouri Court of Appeals

128 S.W. 261

144 Mo. App. 331

HOOK v. BOWDEN et al.

Springfield Court of Appeals. Missouri.

May 2, 1910.

1. MUNICIPAL CORPORATIONS (§§ 680, 681)— USE OF STREETS—TELEPHONE POLES AND WIRES.

The use of a street in a municipality for placing telephone poles and stringing wires thereon is a proper use.

2. MUNICIPAL CORPORATIONS (§ 106)—ORDINANCES —EVIDENCE OF ADOPTION.

Minutes of a city council of a city of the fourth class, reciting that all members of the board were present and "motion made by L. and seconded by C., that the telephone franchise of B. be read the third time and put on its passage. Vote as follows:" with a statement of an affirmative vote by each member of the council —sufficiently showed that the ordinance granting the telephone franchise to B. was read the third time and duly passed by the council, as required by Rev. St. 1899, § 5955 (Ann. St. 1906, p. 3009).

3. TELEGRAPHS AND TELEPHONES (§ 10) — MUNICIPAL FRANCHISE—ACCEPTANCE.

Where an ordinance granting a telephone franchise required that to render it valid the grantee should file his acceptance with the city clerk or board of aldermen, a memorandum at the foot of the ordinance in the journal, "Accepted this July 2nd, 1908," signed by the grantee of the franchise, was a sufficient compliance with the terms of the ordinance.

4. TELEGRAPHS AND TELEPHONES (§ 10)— FRANCHISE—FORFEITURE—WAIVER.

Where a municipal ordinance granting a telephone franchise provided that it should be void if the grantee had not established and put in operation the telephone exchange within six months after acceptance of the franchise, and this was not done, but the city council by resolution extended the time and the grantee commenced the construction and establishment of the telephone system, the forfeiture was waived by the city.

5. TELEGRAPHS AND TELEPHONES (§ 10) — FRANCHISE—COLLATERAL ATTACK.

The right of grantees of a telephone franchise to establish a telephone system cannot be collaterally attacked by the owner of a competing system for failure of the grantee of the franchise to comply with its terms as to the time for the establishment of the system, but is subject to attack only by the city.

6. TELEGRAPHS AND TELEPHONES (§ 10) — FRANCHISE—FORFEITURE—INJUNCTION.

A grantee of a telephone franchise will not be enjoined from establishing his telephone system for failure to comply with the terms of the franchise as to the time for its establishment, since a court of equity will not enforce a forfeiture, though the case may be one in which no equitable relief would be given to the defaulting party against the forfeiture.

Appeal from Circuit Court, St. Clair County; C. A. Denton, Judge.

Action by Ed. A. Hook against C. P. Bowden and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is a contest between two rival telephone companies. The plaintiff, Ed. A. Hook, a citizen of Appleton City, St. Clair county, Mo., was the owner at the time of the commencement of this suit of a telephone exchange in said city, furnishing telephone service therein and in the surrounding country. The right to the system which he was operating was granted to W. D. McComb on February 1, 1901, and purchased from him by plaintiff, and his rights in that system are unquestioned.

Prior to the institution of this suit, the mayor and council of Appleton City by an ordinance, numbered 64, purported to grant to C. P. Bowden and his assigns or successors the right to construct and operate another telephone system in the said city for a period of 20 years. This ordinance was approved July 2, 1908. It contained, among other conditions, the following: "This ordinance and grant shall be void unless the said C. P. Bowden, his successors or assigns, shall have said telephone exchange established and in operation within six months after its passage and ratification by the board of aldermen, and the said grantee filing his acceptance with the city clerk or board of aldermen, which said acceptance shall have the effect of a binding contract between the said city of Appleton City, Missouri, and C. P. Bowden." Then follows: "Accepted this July 2nd, 1908. C. P. Bowden." Said franchise would have expired by limitation on the 2d day of January, 1909. Nothing was done by the respondents towards the construction of the telephone exchange until after the six months had expired, but at a meeting of the board of aldermen held on March 1, 1909, respondents filed the following petition: "I respectfully ask that the time limit of the franchise granted for the erection of the telephone exchange in Appleton City be extended, so that it will expire July 1, 1909. Respectfully, C. P. Bowden." Prior to the 18th day of April, 1909, the respondent Bowden and his associates purchased telephone poles, and about the 18th day of April, 1909, they commenced the erection of their system, put in a switchboard, some instruments, strung some wires, and at which time they had erected a telephone pole on Fourth street, in said city. On the 19th day of April, 1909, the appellant served notice that he would apply for a restraining order to prevent the construction of said telephone plant. On the 20th day of April an injunction was applied for, and granted by the circuit court of St. Clair county, Mo. The petition for the injunction stated, among other things, the facts hereinbefore set forth, and that the defendants were about to erect and build a telephone system in Appleton City, and establish a switchboard, dig holes in the streets and alleys, and set telephone poles therein, and string wires thereon in the various streets and alleys of Appleton City for the purpose of erecting and maintaining a telephone system therein; that "there was no necessity for said telephone system; that the streets and alleys were already occupied with telephone wires and poles by consent of the people of the city, and that, if defendants were permitted to erect poles and string wires, it would greatly incommode the public in the use of the streets and alleys in said city, and greatly interfere with and injure and damage the plaintiff in the use and operation of his telephone system, and that the unlawful acts of the defendants in erecting said poles would be an irreparable injury to the streets and alleys of said city, and damage and interfere with plaintiff's telephone system; that the acts of the defendants were without any authority or consent of the city." Plaintiff prayed that the defendants be enjoined and restrained from erecting, building, and placing their wires, poles, and other fixtures in said city, and constructing the said telephone system.

As stated, a temporary injunction was granted. Upon a final hearing it was stipulated by the parties (the stipulation to be used as evidence) that the plaintiff, Ed. A. Hook, was a citizen of Appleton City, Mo., and the owner of real and personal property located therein; that at the time of applying for the injunction defendants intended to build and construct a telephone exchange and system in Appleton City and operate and run the same; that the defendants are a copartnership in which their names are truly pleaded; that the system intended to be built by defendants, if constructed, would take from plaintiff a large part of the patronage enjoyed by him, and to that extent injure his business; that the defendants intended to place poles and wires along the streets of Appleton City; that Appleton City was a city of the fourth class, organized as such under the laws of the state of Missouri. Evidence was introduced tending to show that, if the defendants' telephone system was constructed, it would probably necessitate the use of taller or shorter poles for the purpose of carrying the construction above or below the competitor, and would take subscribers from one system to the other, necessitate metallic service instead of ground service to prevent cross-talk from one system to the other; that it would also require heavier construction if taller poles were used, and a cable would have to be installed in such a way as not to interfere with the competitor; that it would make the subscribers inaccessible, lessen the receipts, and other disadvantages; that the result upon the value of plaintiff's system would be a depreciation of from $2,500 to $5,000.

Upon this final hearing the court sustained a motion and discharged the injunction, from which the plaintiff has appealed.

W. J. Owen and John A. Galbreath, for appellant. George H. Daniel and Scott & Bowker, for respondents.

NIXON, P. J. (after stating the facts as above).

1. As we have stated, Appleton City was organized under the charter laws governing cities of the fourth class. By section 5957, Rev. St. 1899 (Ann. St. 1906, p. 3009), the board of aldermen of such cities has the care, management, and control of the city and its finances. It has the power under its general welfare clause to enact and ordain any and all ordinances not repugnant to the Constitution or laws of the state or the United States, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, and the benefit of trade and commerce. By section 5960 they are given general care and control of the streets with power to protect the citizens from danger, to abate nuisances, and to regulate the proper use of the streets. It has been often held in this state that the use of a street in a municipality for the purpose of placing telephone poles and stringing wires thereon is a proper use of the street. Julia Building Ass'n v. Bell Tel. Co., 88 Mo. 258, 57 Am. Rep. 398; Schopp v. City of St. Louis, 117 Mo., loc. cit. 136, 22 S. W. 898, 20...