Postal Telegraph Cable Co. v. City of Newport

• Decision Date: 14 October 1903
• Citation: 76 S.W. 159
• Parties: POSTAL TEL. CABLE CO. v. CITY OF NEWPORT.
• Court: Kentucky Court of Appeals

76 S.W. 159

POSTAL TEL. CABLE CO. v. CITY OF NEWPORT.

Court of Appeals of Kentucky.

October 14, 1903

Appeal from Circuit Court, Campbell County.

"Not to be officially reported."

Action by city of Newport against the Postal Telegraph Cable Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Harland Cleveland, for appellant.

Aubrey Barbour, for appellee.

HOBSON J.

The city of Newport, by an ordinance of December 5, 1895, granted to the Postal Telegraph Cable Company the right to use the streets and alleys of the city for the purpose of erecting its poles and stringing its wires, and it was provided in the ordinance that the company should pay the city a license tax of $100 per annum. This suit was filed on September 9, 1899 by the city against the company; it was alleged in the petition that the defendant secured from the plaintiff the use of its streets for the purpose named by the ordinance referred to; and that thereunder the defendant had erected its poles and strung its wires in the streets and alleys of the city, and had since enjoyed the rights and privileges granted to it, and had thereby accepted the ordinance, but that in disregard of its contract it had failed to pay the city the $100 due for the year ending December 5, 1897, or for the year ending December 5, 1898. A copy of the ordinance was filed with the petitioner as an exhibit, and judgment was prayed for the $200 due. The defendant filed an answer, in which it admitted the passage of the ordinance, but denied that it thereby acquired the right to use the streets and alleys. It alleged that by the ordinance it was provided, in substance, that if the company failed within 30 days after the approval of the ordinance to signify to the general council its acceptance of the grant in writing subject to the limitations therein set out, then all the rights and privileges granted should become null and void and of no effect. It alleged that it did not accept in writing or otherwise the provisions of the ordinance, but it admitted that shortly after the passage of the ordinance it began the erection of its poles and the stringing of its wires in and over the streets and alleys of the city, and has since operated its system thereon. Further answering, the defendant alleged that on March 17, 1886, it accepted the act of Congress approved July 24, 1866, c. 230, 14 Stat. 221 entitled "An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military and other purposes," and the acts amendatory thereof, and that by the statutes of the United States it thus acquired the right to construct and operate its lines over and along all military and post roads of the United States, and that all public roads and highways and all letter carrier routes established in any city or town for the collection and delivery of mail were by these statutes declared post roads; that all the streets and alleys of the city of Newport are such post roads; that it had erected its poles and strung its wires therein under the acts of Congress; that it voluntarily submitted to such provisions of the ordinance as related to the manner in which its poles should be erected, but not to so much of it as required it to pay $100 a year; that it paid its taxes as other taxpayers that other...