Rutland Cable T.V. Inc. v. City of Rutland
| Decision Date | 29 November 1960 |
| Docket Number | No. 1905,1905 |
| Citation | 166 A.2d 191,122 Vt. 162 |
| Parties | RUTLAND CABLE T. V., INC. v. CITY OF RUTLAND and the City Council of Rutland. |
| Court | Vermont Supreme Court |
Bloomer & Bloomer, Rutland, for plaintiff.
Richard F. Sullivan, Rutland, for defendants.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
This is the third time the petitioner has resorted to mandamus in aid of its application of September 10, 1959 to the City Council of Rutland for a permit to construct television cable facilities in that city. The prior proceedings are reported in 121 Vt. 399, 159 A.2d 83 and 122 Vt. 1, 163 A.2d 117.
The present petition alleges in substance that following the mandate of this Court, at the January Term 1960, the City Council caused to be published the application of the petitioner and a similar application of the Bellows Falls Cable Corporation together with a notice of hearing on both applications at 8:30 p. m. and 7:30 p. m. respectively on March 30, 1960.
The petition sets forth the following provisions of Chapter XII of the Ordinances of the City of Rutland upon which it relies: '* * * No exclusive or entire right or franchise to place or maintain any poles, wires, conduties or other electrical fixtures or apparatus, in, over or under any street or public way or place in the City, which shall be granted pursuant to this Chapter, shall be construed as giving such person, firm or corporation any exclusive right of provileges therein.'
'Each such application shall be advertised at least once within seven days after such application to the City Council in a newspaper published in the City of Rutland, and such application shall be granted at the next regular meeting of the City Council unless objection is made at such meeting of the City Council by some person, firm or corporation to the granting of such application.
.
By letter dated March 21, 1960 the Bellows Falls Cable Corporation registered a protest to the granting of the petitioner's application. The same communication advised the City Council that if protest was made to its application for a permit it requested a hearing. An objection was made to the application of the Bellows Falls company and hearing was held on both applications as scheduled on March 30, 1960. At this meeting of the Council a stenographic reporter was present and made a verbatim record of the proceedings. The hearings on each application were limited to one hour, over the objection of the petitioner. However after the hearing of March 30 was concluded, a second meeting of the Council was called on published notice on April 27, 1960. No verbatim report of the second hearing was made.
The petition further alleges that during the hearings objection with supporting evidence was made to the application of the Bellows Falls Cable Corporation but no objection was asserted against the issuance of a permit to the petitioner.
The complaint goes on to state that a permit has been issued to the Bellows Falls Cable Corporation but no permit has been issued to the petitioner. It is alleged that the action of the City Council constitutes a flagrant abuse of authority to the irreparable damage of the petitioner.
The members of the City Council as petitionees, filed an answer to the complaint on October 18, 1960. The answer admits substantially all of the allegations of the petition except to deny petitioner's averments that no objection was made to the petitioner's application, and that no evidence was presented to support the application of the Bellows Falls Cable Corporation. The claim that the petitioner has suffered irreparable injury by flagrant abuse of authority is also denied. The answer concludes with a motion to dismiss the petition on the ground that it fails to state a claim for which mandamus will lie.
After the answer was entered, the petitioner took the deposition of Henry P. Battles, city clerk of Rutland and by the deponent obtained identification and authentication of the minutes of the meetings of the City Council wherein the petitioner's application was considered. These records and the deposition were filed October 27, 1960 and proferred by the petitioner and received at the time the cause was argued, without objection.
With the record thus constituted, this cause has assumed the same bearing that prevailed in the mandamus proceedings of Clement v. Graham, 78 Vt. 290, 309, 63 A. 146. In accord with the procedure followed in that instance we proceed to determine the merits of the controversy on the pleadings and the testimony and exhibits filed with the Court.
The application and issuance of the permit sought by the petitioner is governed by the provisions of Chapter XII of the Ordinances of the city of Rutland and Chapter 71 of Title 30, Vermont Statutes Annotated. The ordinances and the statutory law on the subject must be read together, for the validity of the ordinances depends upon their compliance with the statutory enactment. State v. Noyes, 107 Vt. 441, 446, 180 A. 893. The ordinance makes specific reference to P.L. 6415, now 30 V.S.A. § 2503.
30 V.S.A. § 2502 provides that lines of telegraph, telephone and electric wires may be constructed and maintained by a person or corporation upon or under a highway, in such manner as not to interfere with repairs of such highway or the public convenience in traveling upon or using the same. By the provisions of 30 V.S.A. § 2503 the aldermen of a city are empowered to determine upon application where and in what manner such wires shall be erected when it is inconvenient or inexpedient to erect such wires agreeably to section 2502. This enactment also...
To continue reading
Request your trial
-
City of Burlington v. New York Times Co.
...is facially overbroad, it is rendered reasonable when read together with overriding state law. Rutland Cable T.V., Inc. v. City of Rutland, 122 Vt. 162, 165, 166 A.2d 191, 193 (1960). The City does not, however, indicate which "well established principles of Vermont municipal law" are to be......
-
Corcoran v. Village of Bennington, 52-68
...or capriciously refuse a license or permit,' said this Court, speaking through now Chief Justice Holden in Rutland Cable T. V. v. City of Rutland, 122 Vt. 162, 167, 166 A.2d 191. In that case, much as in this case, there was a refusal by municipal authorities to act on an application on its......
-
Dana Corp. v. Yusitis, 1936
...95 Vt. 1, 6, 112 A. 228; Couture v. Selectmen of Town of Berkshire, 121 Vt. 359, 361, 159 A.2d 78, and Rutland Cable T.V., Inc. v. City of Rutland, 122 Vt. 162, 168, 163 A.2d 117. Significantly, in the Glover case itself, the circumstances in Town of West Rutland v. Rutland Ry. L. & P. Co.,......
-
Burlington v. Fairpoint Communications Inc.
...suggests that there are pragmatic limits on the right announced in § 2502. ¶ 16. Nor is our holding in Rutland Cable T.V., Inc. v. City of Rutland, 122 Vt. 162, 166 A.2d 191 (1960), to the contrary. There, a cable television provider sought a writ of mandamus to compel the city council to c......