Smith v. City of Osceola

• Decision Date: 27 October 1916
• Docket Number: 29786
• Citation: 159 N.W. 648,178 Iowa 200
• Parties: R. R. SMITH, Appellant, v. CITY OF OSCEOLA et al., Appellees
• Court: Iowa Supreme Court

159 N.W. 648

178 Iowa 200

R. R. SMITH, Appellant, v. CITY OF OSCEOLA et al., Appellees

No. 29786

Supreme Court of Iowa, Des Moines

October 27, 1916

Appeal from Clarke District Court.--H. K. EVANS, Judge.

ACTION in equity, to set aside and hold for naught a certain ordinance granted by the city of Osceola to the other defendants, to maintain a telephone system within the city of Osceola, and to use the streets, as far as necessary, to effectuate that purpose. Opinion states the facts. Decree for the defendant in the court below. Plaintiff appeals.

Affirmed.

Parker Parrish & Miller, J. H. Jamison, for appellant.

O. M Slaymaker, for appellees.

GAYNOR J. EVANS, C. J., DEEMER, LADD, WEAVER, PRESTON and SALINGER, JJ., concur.

OPINION

GAYNOR, J.

This is an action in equity, brought by the plaintiff, a citizen and taxpayer of the city of Osceola, Clarke County, to restrain the defendants from using the streets, alleys and public places of the city for the purpose of constructing and maintaining thereon poles, wires and other apparatus for the purpose of carrying on a telephone business.

On the 4th day of March, 1913, the city council of defendant city passed the following ordinance:

"An ordinance authorizing C. T. Ayres, F. J. Emary and D. M. Gibson, or their assigns, to build, construct, purchase, maintain, own or lease telephone lines, fixtures and appurtenances, for the operation of a telephone system, exchange and lines, in the city of Osceola, and defining their rights, powers and privileges.

"Be it ordained by the council of the city of Osceola:

"Section I. That C. T. Ayres, F. J. Emary and D. M. Gibson, or their assigns, be, and are hereby, granted the right, power, authority and privilege to build, construct, equip, own, maintain and operate in the city of Osceola, Iowa, wires, lines, poles, arms, appurtenances and fixtures, to conduct a telephone business and exchange, the right, authority, power and privilege to use all streets, alleys and public grounds of the city now owned or hereafter acquired, subject to such restrictions as may now or hereafter be imposed by law or the city council of the city, for the purpose of erecting and maintaining poles, constructing lines, operating telephone lines, a telephone system, telephone exchange or doing any of the things herein authorized, granted or empowered; the right to buy, purchase, lease, erect, equip, maintain, own or operate such plants, machinery, equipments or buildings as are necessary to maintain and operate such telephone lines, telephone system or exchange; the right to buy, hold or own or lease any and all real estate necessary to conduct such business; the right to furnish telephone service to the people, firms and corporations of the city; the right to connect with other telephone lines within the city; the right to own and conduct a rural telephone exchange; the right to do switching for any person, firm or corporation; the right to conduct a telephone toll business; to furnish telephone power and service to any person, firm or corporation, and to have such other and further rights as are usually granted to and enjoyed by telephone companies.

"Section II. Said poles, wires, brackets, etc., shall be erected under the supervision of the city council and, whenever possible, shall be placed, erected and constructed in the alleys, and shall be so placed and constructed as not to interfere with the use of the streets or alleys; and, when placed or erected in paved streets, the said C. T. Ayres, F. J. Emary and D. M. Gibson, or their assigns, shall restore the paving at once to as good condition as before said work was done.

"All wires shall be mounted on insulators and the city council may, at any time order such poles, wires, brackets, etc., or any of them, removed from the said streets and alleys at the expense of said persons, or may, if it see fit, order them removed from one place, and may then grant the privilege of constructing them in another.

"That the said persons, or their assigns, shall hold the city free and harmless from all damages, cost and expense that may arise by reason of the negligence, carelessness or misconduct of such persons or their agents or employes, in erecting, maintaining or operating said plant, or because of the placing of the said poles, brackets, wires or other appurtenances used in connection with said plant; and such persons, or their assigns, are hereby authorized and empowered to trim at their own expense the trees extending into any street, alley or public ground, to prevent the limbs or branches from interfering with their wires.

"Section III. The said C. T. Ayres, F. J. Emary and D. M. Gibson, or their assigns, are not allowed to charge in excess of the following rates, which shall be collected not oftener than monthly:

"For the use of each telephone to be furnished, owned and kept in repair by them and placed in any dwelling house in the city of Osceola, the person leasing the same to have the right to talk over said telephone to any other telephone on the same line in the city, or any of the country lines connecting with said telephone system, the sum of $ 1 per month, and there is to be no switching fee or other charges to the said person.

"For the use of telephones in business houses, offices or places other than dwellings, a sum not exceeding $ 1.50 per month; such persons leasing such telephones to have the same service, rights and privileges granted to persons leasing telephones to be used in and connected with dwellings.

"Said C. T. Ayres, F. J. Emary and D. M. Gibson, or their assigns, are to have no right to require of a person, firm or corporation desiring a telephone that such person, firm or corporation purchase a telephone, but they shall furnish same as a part of the rental permitted to be charged hereunder.

"Section IV. The said C. T. Ayres, F. J. Emary and D. M. Gibson, or their assigns, shall, within 60 days after the passage, approval and publication of this ordinance, as is by law provided, file a written acceptance of this ordinance and contract with the city clerk of the city of Osceola, and, in the event that they do not, within one year from the passage of this ordinance, proceed to equip and operate a telephone system within the city of Osceola, as provided by this franchise, all of the rights and privileges granted hereunder shall cease, forfeit and be lost to them.

"Section V. That said C. T. Ayres, F. J. Emary and D. M. Gibson, or their assigns, shall furnish, free of charge to the city of Osceola, two telephones and all service thereover, one to be installed, maintained and kept up in good condition in the city fire station, and the other, installed, maintained and kept up in good condition in the city council chamber.

"Section VI. This ordinance shall be in force and effect for the period of 25 years from and after its adoption by a majority of the electors of the city, voting at an election called to allow them to vote on the question of granting said franchise. If not approved by a majority of the electors voting on said proposition, this ordinance is to be void; but, if approved by a majority of those voting, to be binding."

That thereafter, the city council, acting under the authority contained in Sections 775 and 776, Code, 1897, submitted said ordinance to a vote of the qualified electors of the city of Osceola at a special election, and a majority of the voters voting at said election voted in favor thereof.

The plaintiff is a taxpayer and citizen of said city, and, as such, challenges the legality of this ordinance. Defendant city is a city of the second class, organized under the general laws of the state.

It is the contention of the plaintiff that the ordinance is void, for the reason that the legislature of the state has never conferred upon the city the power to grant the rights attempted to be conferred by the ordinance; that the power of the city is limited, under Section 776, to the authorization of the use of the streets, alleys and other public places for telephone purposes, only by ordinance of a general and uniform application, which applies to any person, firm or corporation that desires to use the streets and alleys for that purpose; that it has no authority, under the statute, to pass an ordinance granting to an individual or person or corporation, the right to occupy its streets for telephone purposes; that the ordinance must be of a general nature, so that all who desire to enter the city and engage in the business may do so, under the ordinance.

The contention of the plaintiff was challenged by demurrer. The demurrer was sustained, and, the plaintiff electing to stand upon his petition, the court entered judgment against the plaintiff for costs. From this, the plaintiff appeals.

To a proper understanding of the contention, it is well to have before us the statutes which we are called upon to construe.

Section 2158, Code, 1897, provides:

"Any person or firm, and any corporation organized for such purpose, within or without the state, may construct a telegraph or telephone line along the public roads of the state."

Section 775 of the same Code provides:

"Cities and towns shall have the power to authorize and regulate . . ., telephone. . . . and other electric wires, and the poles and other supports thereof, by general and uniform regulation, and to provide the manner in which, and places where, the same shall be placed upon, along or under the streets . . . of such city or town, and may divide the city into districts for that purpose."

Section 776 provides:

"No franchise shall be granted, renewed or extended by any city or town for the use of its streets, . . . or public places for any of the purposes named in...