Southern Bell Tel. & Tel. Co. v. City of Richmond

• Decision Date: 09 July 1900
• Docket Number: 361.
• Citation: 103 F. 31
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. CITY OF RICHMOND.
• Court: U.S. Court of Appeals — Fourth Circuit

103 F. 31

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. CITY OF RICHMOND.

No. 361.

United States Court of Appeals, Fourth Circuit.

July 9, 1900

This case comes up on appeal from a decree of the circuit court of the United States for the Eastern district of Virginia. 98 F 671. The bill was filed by the Southern Bell Telephone &amp Telegraph Company for the purpose of securing an injunction against the city of Richmond, in these words: 'That said city, and all others, its agents and employes, may be restrained and enjoined from removing or interfering with its poles and wires in said city, and from interfering with the right of your orator to use said poles and wires, and that all proceedings by said city or its agents, and all others to prevent your orator from continuing, renewing, repairing and extending its lines, wires, and poles in, along, and over the streets and alleys of the said city; and to inflict fines and penalties on your orator for so doing, may be restrained and enjoined; that the right of your orator to use said poles and wires, and to carry on its said business along and over the streets of the said city, be declared and defined; that the ordinance of the said city of the 14th of December, 1894, and of the 10th of September, 1895, so far as they undertake to prevent your orator from maintaining and using its lines, poles, and wires over and along the streets and alleys of the city of Richmond, from repairing, renewing, and extending its said poles, wires, lines, and routes as its business may require, may be declared null and void; that your orator may have such other, further, general, and complete relief as may be agreeable to equity and the nature of its case. ' The bill claimed that the complainant had entered upon and had secured the use of the streets and alleys of the city of Richmond for its poles and wires, under the authority of the act of congress July 24, 1866 (14 Stat. 221, c. 230), and that under this act it was and is entitled to maintain and operate its lines through and over the streets and alleys of the city of Richmond, without regard to the consent of the said city. The act of 1866 applied to telegraph companies, and the complainant claimed the privileges thereunder because a telephone company was embraced and included in the term 'telegraph company.' This contention was sustained by the circuit court, which, without passing upon the rights claimed by the complainant company under the laws of Virginia and the ordinances of the city of Richmond, adjudged that the complainant company had, in accordance with the terms and provisions, and under the protection of the act of congress of the United States approved July 24, 1866, which is an authority paramount and superior to any state or city ordinance in conflict therewith, the right to construct, maintain, and operate its line over and along the streets and alleys of the city of Richmond. Upon this ground the injunction prayed for was granted. The case then came up by appeal, with assignments of error, into this court, whereupon this court, concurring with the circuit court in the opinion that the complainant company was entitled to the privileges and was under the protection of the act of congress of 1866, after modifying the decree in certain particulars, not necessary to be mentioned now, confirmed its conclusion and sustained the injunction. The cause was removed by certiorari into the supreme court of the United States. That court reversed the conclusion reached by this court, declaring that the complainant company, being a telephone company, did not come within the provisions of the act of 1866, which granted privileges and protection to telegraph companies, because telephone companies were in no sense telegraph companies. The opinion filed by the supreme court ends thus: 'What rights the appellee (the Southern Bell Telephone Company) had or has under the laws of Virginia and the ordinances of the city of Richmond is a question which the circuit court did not decide, but expressly waived. It is appropriate that that question should be first considered and determined by the court of original jurisdiction.' 174 U.S. 778, 19 Sup.Ct. 784, 43 L.Ed. 1169. The decretal order is as follows: 'The cause is remanded, with directions for such further proceedings in the circuit court as may be in conformity with this opinion and consistent with law. ' Id. The opinion of this court, while adjudging that the complainant company had all the privileges and protection granted by the act of 1866, had also adjudged that such rights and privileges were to be enjoyed in subordination to public use and private rights, and subject to any lawful exercise of the police power belonging to the state or one of its municipalities. This was approved and affirmed by the supreme court in its opinion. The cause, having been remanded, was heard in the circuit court. That court held that, under the laws of Virginia and the ordinances of the city of Richmond, the Southern Bell Telephone & Telegraph Company has no right to use the streets of that city. For this reason it denied the relief asked, dissolved the injunction theretofore granted, and dismissed the bill. Leave to appeal was granted upon assignments of error, and the cause is here upon these.

A. L. Holladay and Hill Carter (George H. Fearons, on the brief), for appellant.

Henry R. Pollard, City Atty., for appellee.

Before SIMONTON, Circuit Judge, and BRAWLEY, and PURNELL, District judges.

SIMONTON Circuit Judge (after stating the facts as above).

The question before this court is that sent down by the supreme court to the circuit court: What rights have or had the Southern Bell Telephone & Telegraph Company, under the laws of Virginia and the ordinances of the city of Richmond, to construct, maintain, and operate its lines in the streets and alleys of that city? The statute law of the state of Virginia in relation to telegraph and telephone companies is found in chapter 54 of the Code of 1887 (sections 1287, 1288, 1289, 1290). Section 1287 is as follows:

'Right of Telegraph and Telephone Companies to Construct and Operate Lines. Every telegraph and every telephone company incorporated by this or any other state, or by the United States, may construct, maintain and operate its line along any of the state or county roads or works and over the waters of the state, and along and parallel to any of the railroads of the state, provided the ordinary use of such roads, works, railroads and waters be not thereby obstructed; and along or over the streets of any city or town with the consent of the council thereof.'

It may be noted in passing that when the legislature is granting the use of any of the state or county roads or works, and over the waters of the state, and along or parallel to its railroads, it states the conditions in full. When the legislature comes to the use of streets of a city or town, it refers these conditions to the council of such city or town. Section 1288 provides for contracts for rights of way. Section 1289 provides, when compensation cannot be agreed on, how ascertained; what title the company acquires. Section 1290 provides as follows:

'Right of Repeal by General Assembly. The three preceding sections shall be subject to repeal, alteration or modification, and the rights and privileges acquired thereunder shall be subject to revocation or modification by the general assembly, at its pleasure.'

Sections 1291, 1292, 1293, and 1294 relate to the transaction of the business of telegraph and telephone companies after their lines are up.

Section 7 of the charter of the city of Richmond is as follows:

'To close or extend, widen or narrow, lay out and graduate, pave, and otherwise improve streets and public alleys in the city, and have them properly lighted and kept in good order; and they shall have over any street or alley in the city, which has been or may be ceded to the city, like authority as over other streets or alleys. They may build bridges in, and culverts under, said streets; and may prevent or remove any structure, obstruction or encroachment over or under, or in a street or alley, or any sidewalk thereof, and may have shade trees planted along the said streets; and no company shall occupy with its works the streets of the city without the consent of the council. ' Laws 1869-70, p. 124.

The Southern Bell Telephone & Telegraph Company is a corporation of the state of New York. On 26th June, 1884, the city council of Richmond passed the following ordinance:

'Granting the right of way throughout the city of the Southern Bell Telephone and Telegraph Company.

'Section 1. Permission is hereby granted the Southern Bell Telephone and Telegraph Company to erect poles and run suitable wires thereon for the purpose of telephonic communication throughout the city of Richmond, on the public streets thereof, on such routes as may be specified and agreed on by a resolution or resolutions of the committee on streets, from time to time, and upon the conditions and under the provisions of this ordinance.

'Sec. 2. On any route conceded by the committee on streets, and accepted by the company, the said company shall, under the direction of the city engineer, so place its poles and wires as to allow for the use of the said poles by the fire alarm and police telegraph, in all cases giving the choice of position to the city's wires, wherever it shall be deemed advisable by the council or the proper committee to extend the fire alarm and police telegraph over such route.

'Sec. 3. The telephone company to furnish telephone exchange service to the city at a special reduction of ten dollars per annum for each municipal station.

'Sec. 4. No shade trees shall be disturbed, cut or

...