Nugent v. City of East Providence, 187-A

• Decision Date: 06 March 1968
• Docket Number: No. 187-A,187-A
• Citation: 238 A.2d 758,103 R.I. 518
• Parties: , 74 P.U.R.3d 520 J. Joseph NUGENT, Attorney General ex rel. Harry E. Hurd v. CITY OF EAST PROVIDENCE et al. ppeal.
• Court: Rhode Island Supreme Court

Page 758

238 A.2d 758

103 R.I. 518, 74 P.U.R.3d 520

J. Joseph NUGENT, Attorney General ex rel. Harry E. Hurd v. CITY OF EAST PROVIDENCE et al.

No. 187-Appeal.

Supreme Court of Rhode Island.

March 6, 1968.

Herbert F. DeSimone, Atty. Gen., Providence, Bruce G. Sundlun, Washington, D.C., Louis J. Vallone, Roberts & McMahon, William F. McMahon, Providence, Amram, Hahn & Sundlun, Gerald Scher, Jack C. Sando, Washington, D.C., of counsel, for plaintiffs-appellees.

David B. Lovell, Jr., Providence, for defendant-appellant, Full-Channel TV, Inc.

Charles J. McGovern, John G. Coffey, Providence, for Westerly Cable Television, Inc., amici curiae.

OPINION

ROBERTS, Chief Justice.

This civil action was brought to declare null and void the action of the city council of the city of East Providence purporting to grant to Full-Channel TV, Inc., hereinafter referred to as Full-Channel, an exclusive franchise to build and operate a community antenna television system in that city and to enjoin Full-Channel from acting further under the purported franchise to build and operate a community antenna television system in that city. The cause was heard by a justice of the superior court, who held the action of the defendant city council null and void and entered a judgment enjoining the defendant Full-Channel from acting under the authority thereof. From that decision Full-Channel has prosecuted an appeal to this court.

It appears from the record that Full-Channel on December 30, 1965 had petitioned defendant city council for an exclusive franchise to build and operate in that city a community antenna system and in connection therewith sought also a permit to attach cables and wires to poles owned and maintained by public utilities over the streets and public places within that city. On February 23 a public hearing was held on this petition.

On March 1, 1966, the city council adopted Resolution No. 28 wherein it granted to Full-Channel '* * * the exclusive right and privilege for a period of twenty five years from the effective date of this ordinance * * * to construct, maintain and operate in the present and future streets, alleys and public places of the City of East Providence, towers, poles, lines, cables, necessary wiring and other apparatus for the purpose of receiving, amplifying, and distributing television and radio signals * * *.' After requiring the permission of the city of East Providence for the location of poles and towers, the resolution went on to confer upon Full-Channel authority '* * * to attach or otherwise affix cables or wires to the pole facilities of any public utility company even though the same may cross over the streets, sidewalks, public lands, highways of the City of East Providence * * *' subject to the consent and approval of the public utility companies concerned.

The decision that the action of the city council was null and void was rested by the trial justice on his conclusion '* * * that there was in the City of East Providence no inherent, statutory or charter power enabling it to grant the exclusive license or franchise which is here the subject of discussion.' In the course of reaching this conclusion, he made a preliminary decision that the city council was without power to grant the exclusive franchise for which the resolution provides. This conclusion he rested upon his view that municipalities are without authority to grant such an exclusive license or franchise in the streets unless such power has been granted them by the state either in express terms or by necessary implication, relying on the rule stated in Smith v. Town of Westerly, 19 R.I. 437, 35 A. 526.

On our opinion, however, the rule is broader than the language of the trial justice indicates. The weight of authority supports the proposition that, within constitutional limitations, the power of the state to exercise control and dominion over the highways is plenary and that political subdivisions of the state may acquire and exercise such power only by way of a delegation thereof by the legislature. The rule has been aptly stated in Hackensack Water Co. v. Ruta, 3 N.J. 139, 146, 69 A.2d 321, 324, where the court said: 'The State has sovereign and absolute jurisdiction and control of the roads, streets and highways within its borders. Supervision and control of public highways is exercisable directly by the Legislature, and indirectly by the municipalities and other local governmental agencies to whom the power has been delegated. The local governing body has in this behalf only such powers as have been delegated by the State's legislative body.' Commonwealth v. Funk, 323 Pa. 390, 186 A. 65; Kelly v. Anderson, 74 Ariz. 364, 249 P.2d 833; State ex rel. Arn v. State Commission of Revenue and Taxation, 163 Kan. 240, 181 P.2d 532; State v. Luttrell, 159 Neb. 641, 68 N.W.2d 332; Opinion of the Justices, 81 N.H. 566, 129 A. 117, 39 A.L.R. 1023; State v. Gamelin, 111 Vt. 245, 13 A.2d 204.

In the Smith case, upon which the trial justice based his conclusion, the issue is whether an exclusive right properly could be granted by a municipality, but we do not hold that the rule laid down in the Smith case is limited to the facts thereof. In our opinion, the court in the Smith case was applying to a specific set of facts the general rule to which we have referred above. If we concede, as Full-Channel urged in this court, that the word 'exclusive' should be treated as mere surplusage, the question then becomes whether the authority to grant the right to make any use of the streets inheres in the municipality. We hold that it does not and that the power of the state with respect to dominion and control of its highways is plenary and may be exercised by political subdivisions of the state only when such authority has been granted by legislative action.

In our opinion, however, the trial justice clearly directed attention to the dispositive issue in this case when he referred to the fact that this is essentially a question of the power to license and the circumstances in which that power may be exercised by a political subdivision of the state, it being conceded generally that the licensing power is exclusive in the state. We find inescapable the conclusion that in this case the city council, despite its reference to use of the streets, was purporting to license the business of intercepting and transmitting television programs to subscribers who would pay for this service. This, in our opinion, puts the basic issue on whether the power to license is exclusively an attribute of the state. We were confronted with this question in Newport Amusement Co. v. Maher, 92 R.I. 51, 166 A.2d 216.

There we held that the licensing power vests exclusively in the state and, absent a legislative delegation of a portion thereof, if may not be exercised by municipalities. We said: 'The power to regulate occupations and businesses by licensing provisions and by imposing a licensing fee is an attribute of sovereignty. It is not an incident of municipal administration and may not be exercised by municipalities except where it is lawfully delegated to them in particular instances expressly or by necessary implication.' Newport Amusement Co. v. Maher, supra, 92 R.I. at 56, 166 A.2d at 218. The rule as thus stated is consistent with the view adhered to in most jurisdictions in this country, that is, that the power of a municipal corporation to license an occupation is not an inherent power but may be exercised only when conferred by the state either in express terms or by necessary implication. State v. Brown, 135 Me. 36, 188 A. 713; Edwards v. Mayor & Council of Borough of Moonachie, 3 N.J. 17, 68 A.2d 744; City of Kewanee v. Riverside Industrial Materials Co., 21 Ill.App.2d 416, 158 N.E.2d 86.

The defendant argues in this court that the city council was, by constitutional grant, given authority to regulate and control such businesses as CATV or, in the alternative, that the legislature had by statutory enactment delegated such power to the city council. We construe these arguments as conceding that the power to regulate and license businesses is exclusive in the state, as we held in Newport Amusement Co., supra, and that, absent such a constitutional grant of authority or a delegation thereof by the legislature, the city council was without authority to enact Resolution No. 28.

We turn first then to the question whether the city council had, by constitutional grant, authority to regulate the business of intercepting and distributing television programs. The defendant directs our attention to art. XXVIII of the amendments to the constitution of this state, the home rule amendment, so called. In particular, it directs our attention to sec. 2 of that amendment, which provides, in pertinent part, that a municipality that has adopted a home rule charter has '* * * power at any time to adopt a charter, amend its charter, enact and amend local laws relating to its property, affairs and government not inconsistent with this Constitution and laws enacted by the general assembly in conformity with the powers reserved to the general assembly.'

The constitutional amendment clearly confers upon municipalities adopting home rule charters the...