Michigan Tel. Co. v. City of Charlotte

• Decision Date: 11 April 1899
• Citation: 93 F. 11
• Parties: MICHIGAN TEL. CO. v. CITY OF CHARLOTTE et al.
• Court: U.S. District Court — Western District of Michigan

93 F. 11

MICHIGAN TEL. CO. v. CITY OF CHARLOTTE et al.

United States Circuit Court, W.D. Michigan, Southern Division.

April 11, 1899

Wells Angell, Boynton & McMillan, for complainant.

James M. Powers and Garry C. Fox, for defendant.

SEVERENS District Judge.

The bill in this case was filed by the complainant, the Michigan Telephone Company, against the city of Charlotte, to restrain it from enforcing an ordinance requiring the company to transfer its poles and wires from where they stand, in front of blocks 24 and 31, on Main street, in said city, to the alley next adjoining said street, and running parallel therewith. This ordinance was passed upon the grounds that the poles now standing and supporting the wires along said street are decayed to such an extent that they have become inadequate to the support of the system of wires which they carry, and also that the company has accumulated on said poles a great number of wires, which it employs in the conduct of its business, and to such an extent as to endanger the life and safety of the citizens of said city, and others occupying the buildings on said street or traveling therein. The power of the common council to order such a transfer is denied by the complainant, which alleges that while its poles are defective, and the system needs repair in of the old, and in this respect stands ready to comply with the requirement of the ordinance. But the complainant denies that the wires strung upon its poles constitute any menace to the lives or safety of the public, and alleges that the transfer of its poles and wires to the adjoining alley would be attended with considerable expense and inconvenience, and that the common council transcended its authority when it ordered such transfer. In addition to its answer, the city has submitted several affidavits in support thereof; and the substance of the case set up in its behalf is not only that the poles are inadequate, but also that independently of this, the multitude of wires strung thereon creates a condition of danger which it is the duty and right of the common council to obviate by directing the transfer of the company's lines to the adjoining alley, which is much less frequented by the public, and where the danger would be greatly minimized.

The company introduced its telephone system into the city of Charlotte in the year 1883, under the authority of section 3718d, 3 How. Ann. St., which reads as follows:

'Every such corporation shall have power to construct and maintain lines of wire or other material, for use in the transmission of telephonic messages along, over, across, or under any public places, streets and highways, and across or under any of the waters in this state, with all necessary erections and fixtures therefor: provided, that the same shall not injuriously interfere with other public uses of the said places, streets, and highways, and the navigation of said waters.'

The charter of the city of Charlotte contained the following provision delegating the supervision and control of its streets to the city:

'The common council shall have supervision of all public highways, bridges, streets, avenues, alleys, sidewalks, and public grounds within the city, and shall cause the same to be kept in repair and free from nuisance. ' Loc. Acts 1895, p. 198, Sec. 170.

This clause of the charter was in force at the time when the complainant introduced its system into the city, and still remains operative. It is sufficiently shown that the city gave its consent to the original construction of the telephone system along the streets of the city,-- among them, Main street, where the poles and lines have since continued. It is also clear enough that the proposed transfer from Main street to the alley could be made without any very considerable expense; the change involving eight or ten additional poles, increasing the length of the wires to the extent of crossing about two blocks, and perhaps some minor incidental material for making connections.

The defendant, the city of Charlotte, contends that no case is stated by the bill which brings it within the jurisdiction of the federal court. Several grounds for jurisdiction are relied upon by the complainant,-- among them, this: That the introduction of the telephone system and service by the complainant into the city of Charlotte, with the acquiescence and concurrence of the city, and the incurring of the cost of the construction and maintenance of the system, created a contract that the company might take and retain possession of the streets which it used, and that this contract was impaired by the passage of the ordinance complained of. This is the claim made by the complainant, and, if made in good faith, it affords sufficient ground for the exercise of jurisdiction under that clause of the constitution of the United States which forbids the impairment of the obligation of contracts by state legislation. City of New Orleans v. New Orleans Waterworks, 142 U.S. 79, 12 Sup.Ct. 142; City Ry. Co. v. Citizens' St. R. Co., 166 U.S. 557, 17 Sup.Ct. 653. And there is no reason to doubt the bona fides of the company in making this claim.

Counsel for the complainant supports its claim upon the merits on several distinct grounds:

1. It is insisted that the action taken by the common council violates the provisions of section 5263 of the Revised Statutes of the United States, which provides that any telegraph company shall have the right to construct maintain, and operate lines of telegraph over and along any of the post roads of the United States, or which may hereafter be declared such by...