Omaha Elec. Light & Power Co. v. Omaha

• Decision Date: 17 July 1909
• Citation: 172 F. 494
• Parties: OMAHA ELECTRIC LIGHT & POWER CO. v. CITY OF OMAHA et al.
• Court: U.S. District Court — District of Nebraska

172 F. 494

OMAHA ELECTRIC LIGHT & POWER CO. v. CITY OF OMAHA et al.

United States Circuit Court, D. Nebraska.

July 17, 1909

W. W Morsman, for plaintiff.

Harry E. Burnam, I. J. Dunn, and John A. Rine, for defendants.

W. H MUNGER, District Judge.

In 1884 the city of Omaha was a city of the first class, governed by a legislative charter which gave to the corporate authorities of the city full power, control, and authority over the streets and alleys of the city. In December, 1884, the city council of said city passed an ordinance, which was duly approved by the acting mayor of the city, which ordinance gave to the New Omaha Thompson-Houston Electric Light Company, or assigns, the right to erect and maintain poles and wires, with all the appurtenances thereto, upon or over the streets, alleys, and public grounds of said city 'for the purpose of transacting a general electric light business,' under such reasonable rules and regulations as might be provided by ordinance. The provisions of the ordinance were accepted by the New Omaha Thompson-Houston Electric Light Company, and an electric light plant established in the city of Omaha; the electrical current therefor being transmitted over wires strung upon poles erected upon the various streets and alleys within the city. The application of electric power to stationary machinery was not much understood or developed in 1884, and for several years thereafter. As appliances were invented for such purposes, they were used by said electric light company.

Ordinances have subsequently been passed by the city, of a general nature, requiring that all companies using or desiring to use electricity for light, power, and heating purposes should be governed by certain regulations under the direction of the city electrician. A subsequent ordinance was passed requiring all companies furnishing electricity for lighting, heating, and power purposes to pay a certain percentage of gross receipts to the city. In 1903, shortly before the termination of the corporate existence of said New Omaha Thompson-Houston Electric Light Company, it assigned all its property and rights acquired by virtue of said ordinance of 1884 to complainant, and for the years 1902, 1903, 1904, 1905, and 1906 complainant paid to the city treasurer of the city of Omaha the percentage upon its gross receipts for electrical energy furnished by it for lighting and power purposes, and complainant and its predecessor have invested a large sum of money in producing the electrical current for power and heat, in addition to what would have been required for lighting purposes only.

The city has also by ordinance required all companies transmitting electricity for heat, light, and power purposes to place within a certain prescribed district within the city all wires so used in conduits under the ground. In May, 1908, the city council, by resolution approved by the mayor, directed the city electrician to disconnect, or cause to be disconnected, on or before July 1, 1908, all wires leading from the conduits or poles of the Omaha Electric Light & Power Company, transmitting electricity to private persons or premises, to be used for heat or power, and to take such steps as would prevent said Omaha Electric Light & Power Company from furnishing or transmitting from the conduits or wires electricity to private persons or premises for heat or power purposes. The city electrician notified complainant of his purpose to carry out the provisions of said resolution. Thereupon complainant instituted this action to enjoin the city and said Michaelson, as city electrician, from enforcing the provisions of said resolution, or otherwise interfering with complainant in its business of furnishing, under the provisions of the ordinance of 1884, electricity for light, heat, and power purposes.

There are no controverted questions of fact, the case presenting simply questions of law. I think the city had authority, in 1884, under the general power given it over the streets and alleys within the city, to pass the ordinance in question granting to the New Omaha Thompson-Houston Electric Light Company the privilege given by said ordinance. The privilege given by said ordinance, not being exclusive, was not a special privilege or immunity, within the meaning of...