Patten v. City of Chattanooga

• Decision Date: 23 November 1901
• Citation: 65 S.W. 414,108 Tenn. 197
• Parties: PATTEN et al. v. MAYOR, ETC., OF CITY OF CHATTANOOGA et al. [*]
• Court: Tennessee Supreme Court

65 S.W. 414

108 Tenn. 197

PATTEN et al. v. MAYOR, ETC., OF CITY OF CHATTANOOGA et al. ^[*]

Supreme Court of Tennessee.

November 23, 1901

Appeal from chancery court, Hamilton county; Walter S. Bearden Chancellor.

Action by Z. C. Patten and 18 other citizens of Chattanooga purporting to be for themselves and all other taxpayers voters, and property owners thereof, against the mayor and aldermen and city of Chattanooga and others, to have an ordinance declared void which granted the right to certain persons to establish and maintain a telephone, telegraph, and electrical exchange in such city. From a decree of the court of chancery appeals affirming the decree of the chancellor holding the ordinance void, defendants appeal. Reversed.

E. S. Daniels, W. T. Murray, Shepherd & Frierson, and G. B. Murray, for appellants.

Cooke, Swaney & Cooke, Pritchard & Sizer, Thomas & Thomas, C. R. Evans, and A. W. Gaines, for appellees.

SNODGRASS C.J.

On the 20th of November, 1900, the board of aldermen of the city of Chattanooga passed the following ordinance:

"An ordinance granting T. S. Wilcox and associates the right to establish an electrical plant in the city of Chattanooga; to put up and maintain a telephone, telegraph and electrical exchange; to erect poles, wires, cables and an necessary devices, appliances and constructions, including the privilege of constructing underground conduits and erecting, running and maintaining underground wires; together with all necessary devices and appliances for the conduct of a general telephone, telegraph and electrical plant in the city of Chattanooga.

"Section 1. Be it ordained by the mayor & aldermen of the city of Chattanooga, Tenn., that the right is hereby granted to T. S. Wilcox and his associates, successors and assigns, for the term of twenty-one years, to erect, construct and build an electrical plant in the city of Chattanooga; to put in and maintain a telephone, telegraph and electrical exchange, the right to use the streets, alleys, roads, lanes, ways and courts of Chattanooga; to erect telephone and telegraph poles, wires, cables and all necessary devices, appliances, constructions, including underground conduits, and all necessary things and constructions to operate telephone, telegraph and electrical communications and devices; to establish and maintain telephone, telegraph and electrical exchanges; to carry on, operate and control telegraph, telephone and all manner of electrical communication. And the right is hereby granted them to place their wires above or under ground so as to enable them in the most convenient and suitable manner to conduct their said electrical communications. But it is hereby understood that the right to erect poles, structures, conduits, and other appliances of the said T. S. Wilcox, his associates, successors, and assigns, herein permitted to be constructed in the streets, roads, alleys, lanes, courts, and other highways of the city of Chattanooga, is herein granted upon the distinct understanding that the same are to be so placed and put that no unnecessary and improper obstructions to the streets and ways of said city shall occur therefrom.

"Sec. 2. Be it further ordained that the city of Chattanooga shall have the right to use the poles set in the streets, for fire alarms, free and without compensation; that all poles, subways and conduits are to be located under the direction of the city engineer, and such poles shall be sufficiently high as to in no way interfere with the business of the streets on which the same are located. The city reserves the right to regulate this privilege from time to time as the city may increase in population or necessity demands.

"Sec. 3. Be it further ordained, that the sole right to construct, provide, build, establish and maintain underground conduits or subways in which to plant, carry or hang electrical wires, and all other appliances, and to conduct pipes for water, oil or gas, is hereby granted to the said T. S. Wilcox and his associates, their successors and assigns, for the term of twenty-one years, with the distinct understanding that the said T. S. Wilcox and his associates, their successors and assigns, shall make such subways or underground conduits, as aforesaid, ample at all times, either by original construction or by subsequent enlargement or extension; at the demand of the municipal authorities, after sufficient notice, to accommodate the wires of all companies that may be required or desired to be put under ground of a like voltage with the wires of the said T. S. Wilcox and associates, and all pipes and other things needed to be so carried, provided, that the same will not interfere with the purposes for which the conduit is intended, and that all owners of such wires, cables and other electrical conductors and transmitting devices within the city of Chattanooga as shall be so required or desired to be conducted over, through and under said highways, or any such apparatus, underground subways or conduits, as aforesaid, shall pay for the use of such subways and other devices belonging to the said T. S. Wilcox and his associates, their successors and assigns, a reasonable rental per annum, the same to be mutually agreed upon by the parties thereto interested; and in case of disagreement as to said rental, an arbitration may be required by either party thereto, and shall be heard by three disinterested persons, one to be chosen by said T. S. Wilcox and associates, their successors and assigns, one by the person or company whose wires are to be placed in said conduits or underground ways, and one by the board of mayor & aldermen of the city of Chattanooga, for and in behalf of the city. The findings of the said board of arbitration shall be final as to all parties.

"Sec. 4. Be it further ordained that in consideration of this franchise, the said T. S. Wilcox and associates, their successors and assigns, will furnish the city of Chattanooga, twelve telephones free, and to the county buildings inside the city limit eight telephones free for the use of such buildings. And the said T. S. Wilcox and associates, their successors and assigns, agree to pay the city 1 per cent. of the gross receipts derived from the business within the city limits of Chattanooga, Tenn., for the first fifteen years after it begins operation, and thereafter 2 per cent. of such gross receipts.

"Sec. 5. Be it further ordained, that this franchise is granted upon the express stipulation and agreement upon the part of the said T. S. Wilcox and associates, their successors and assigns, that the telephone service shall be metallic circuits, and that all instruments used shall be of the long-distance, solid-back type.

"Sec. 6. Be it further ordained, that this franchise is granted to the said T. S. Wilcox and associates, their successors and assigns, with the distinct understanding that it is not in any way to interfere with any franchise heretofore granted or any of the vested rights of any individual or corporation under such franchise.

"Sec. 7. Be it further ordained, that the city of Chattanooga, Tenn., hereby reserves the right at any time to purchase of the said T. S. Wilcox and associates, their successors and assigns, any and all conduits constructed under the provisions, and in consideration of the rights and franchises herein granted, the purchase price to be agreed upon by and between the parties; and in case they fail to agree, the price is to be fixed by arbitration, said T. S. Wilcox and associates, their successors and assigns, are to select one arbitrator, the board of mayor & aldermen to select one, and the two so selected to select the third; the award of the said arbitrators to be final and binding upon the parties. And after the award has been made, the said T. S. Wilcox and associates, their successors and assigns, will in compliance with the award, turn over and deliver to the city such conduits when the city upon its part complies with the award.

"Sec. 8. Be it further ordained that this ordinance take effect from and after its passage, the public welfare requiring it."

Its passage aroused antagonism, and a number of citizens petitioned the mayor to veto it. These petitioners pointed out five objections to the ordinance: (1) Omission of usual provisions fixing maximum rate for telephone service; (2) omission of requirement as to when work on telephone system should begin, and when same should be completed; (3) omission of requirement to restore pavements and streets; (4) omission to prohibit sale to, or consolidation with, old telephone company; (5) that the exclusive feature with respect to the conduit system is unnecessary and dangerous. The mayor thereupon asked the city attorney for an opinion as to what safeguards were necessary to properly protect the city's interests. The latter replied, suggesting provisions covering the very five objections specified in the citizens' petition. The mayor vetoed the ordinance in a lengthy message. He based his veto on the five objections already stated, and assigned the additional reasons: (1) That the ordinance granted more than one franchise, which he deemed unwise; (2) that the plan of arbitration provided was defective, in that it gave the power to the grantees to prevent an arbitration. He specified his objections to the exclusive feature as to conduits as follows: (1) That the ordinance granted the exclusive right to build conduits, lay wires, etc., under the streets, and that therefore no person or company hereafter required or desiring to lay wires or other appliances underground could do so, but such person or company would be forced to use the conduits of Wilcox and associates; (2) that, if the city should desire to build...