Michigan Tel. Co. v. City of Benton Harbor

• Decision Date: 17 October 1899
• Citation: 80 N.W. 386,121 Mich. 512
• Court: Michigan Supreme Court
• Parties: MICHIGAN TEL. CO. v. CITY OF BENTON HARBOR.

80 N.W. 386

121 Mich. 512

MICHIGAN TEL. CO. v. CITY OF BENTON HARBOR.

Supreme Court of Michigan

October 17, 1899

Appeal from circuit court, Berrien county, in chancery; Orville W Coolidge, Judge.

Bill by the Michigan Telephone Company against the city of Benton Harbor to restrain interference with its erection of telephone lines. From a decree dismissing its bill complainant appeals. Reversed.

Wells Angell, Boynton & McMillan (N. A. Hamilton, of counsel), for appellant.

F. H. Ellsworth (G. M. Valentine, of counsel), for appellee.

GRANT C.J.

This case in its facts differs in only one particular from that of the same complainant against the city of St. Joseph, 80 N.W. 383, the opinion in which is filed simultaneously with this. In that case the records of the common council showed resolution adopted granting permission to the Telephone & Telegraph Construction Company, while in this case the records of the common council do not show that such permission was granted. These two cities are contiguous to each other,--separated only by a river. The work of the construction company in each was begun and carried on at the same time, and the construction company and its assignee, the complainant, have ever since been in the enjoyment of the same rights in Benton Harbor as in St. Joseph. The complainant presented a petition to the common council of Benton Harbor couched substantially in the same language, and asking for the same privileges as it presented to the common council of the city of St. Joseph. The council denied the prayer of the petition. The court denied relief in this case, while granting it in the other, because the records of the council did not show the grant of permission which it held was essential to the creation of a contract. The complainant, at the request of the council, furnished for the use of the city one telephone free of charge, and two other telephones at rates less than those charged to other subscribers for like service, which rates have been paid by the city. In the year 1893 complainant, on application of the city, granted permission to the city to carry its fire-alarm wires on the company's poles, which permission was accepted by resolution adopted by the council. The complainant gave evidence tending to show that the construction company in February, 1881, presented a petition to the common council, and that it was notified by the clerk that permission had been granted. The city clerk testified that he could find no papers of any kind in his office, presented to the council from 1881 to 1887.

Complainant contends that a contract exists between it and the city, arising out of the establishment of its system by the permission of the municipality, and the maintenance thereof for many years, and that the defendant is now estopped to deny such contract. In the view we take of the case, it is unnecessary to determine this question. Section 4 of the act (Acts 1883, p. 131) providing for telephone and messenger service companies reads as follows: 'Every such corporation shall have power to construct and maintain liens 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; to construct, provide and furnish instruments, devices, and facilities for use in the transmission of such messages, and to construct, maintain and operate telephone exchanges and stations, and generally to conduct and carry on the business of providing and supervising communication by telephone, and also the business of furnishing messenger service in cities and towns.' 3 How. Ann. St. � 3718d. The statute also requires every such company to supply the public with telephones and telephonic service, to operate a telephone exchange, and to receive and transmit meassages without discrimination, upon payment or tender of the usual or customary charges. Id. � 3718i. The complainant is engaged in interstate commerce, as its business extends into other states. The state has control over its public streets and highways, and may authorize their use for the purposes of travel and commerce without the permission of the municipalities. The state does not surrender to municipalities entire control over its streets and highways. They are under legislative control. Cooley, Const. Lim. 588. 'They are for the use of the public in general, for passage and traffic, without distinction. The restrictions upon their use are only such as are calculated to secure to the general public the largest practical benefit from the enjoyment of the easement. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods.' People v. Eaton, 100 Mich. 208, 59 N.W. 145, and authorities there cited. 'No city or village has the power, by ordinance or by-law, to make general laws of the state inoperative.' People v. Kirsch, 67 Mich. 539, 235 N.W. 157. Where a water company is authorized by its charter to lay pipes and distribute water, it has a right of access to the streets for that purpose, to be exercised in harmony with the public convenience. The city may regulate its exercise so as to prevent injury to other interests, but cannot interfere with the reasonable exercise of such right. City of Grand Rapids v. Grand Rapids Hydraulic Co., 66 Mich. 606, 33 N.W. 749; Atlantic City Waterworks Co. v. Consumers' Water Co., 44 N. J. Eq. 427, 15 A. 581. Pensacola Tel. Co. v. W. U. Tel. Co.,

96 U.S. 1. The same statement now applies to the use of the telephone. It is as indispensable to commerce as is the telegraph. Telephone companies are subject to the same rules as common carriers. Delaware & A. Tel. & Tel. Co. v. Delaware 2 C. C. A. 1, 50 F. 677. The same rule is held in Leloup v. Port of Mobile, 127 U.S. 640, 8 S.Ct. 1380;...