Southern Bell Tel. & Tel. Co. v. State ex rel. Ervin

• Decision Date: 19 November 1954
• Citation: 75 So.2d 796
• Parties: SHOUTHERN BELL TELEPHONE AND SOUTHERN BELL TELEPHONE AND Petitioner, v. STATE of Florida, ex rel. Richard W. ERVIN, Attorney General, and Richard H.Simpson, W. Howard Frankland, Earl P. Powers, Thomas B. Manuel and J. SaxtonLloyd, constituted and being all of the duly appointed, qualified and actingmembers of theState Road Department of Florida, Respondents.
• Court: Florida Supreme Court

Page 796

75 So.2d 796

SHOUTHERN BELL TELEPHONE AND SOUTHERN BELL TELEPHONE AND Petitioner, v. STATE of Florida, ex rel. Richard W. ERVIN, Attorney General, and Richard H.Simpson, W. Howard Frankland, Earl P. Powers, Thomas B. Manuel and J. SaxtonLloyd, constituted and being all of the duly appointed, qualified and actingmembers of theState Road Department of Florida, Respondents.

Supreme Court of Florida, En Banc.

Nov. 19, 1954.

Harold B. Wahl, Loftin & Wahl, Jacksonville, Chas. S. Ausley, Ausley & Ausley, Tallahassee, E. W. Smith, John A. Boykin, Jr., and Rexford L. Hawkins, Atlanta, Ga., for petitioner.

Richard W. Ervin, Atty. Gen., T. Paine Kelly, Asst. Atty. Gen., J. Turner Butler, D. Fred McMullen, for respondents.

DREW, Justice.

This action arises out of a controversy between the petitioner, Southern Bell Telephone and Telegraph Company, and the State Road Department of Florida, concerning the construction of the multimillion dollar Jacksonville Expressway. This project included what was originally known as the Arlington Bridge but is now known as the Mathews Bridge; the Interstate Bridge; and the extensive and elaborate limited access approaches to both of these large bridges across the St. Johns River.

It was evident from the inception of this project that it would be necessary to remove and relocate the facilities of the Telephone Company which had been theretofore constructed upon, along and beneath the public streets of the City of Jacksonville (properly designated State Roads before the project was commenced) which were to be incorporated within the much larger and more elaborate expressway system of highways. It was evident that it would be necessary not only for the Telephone Company to remove and relocate its facilities in the streets extending in the same direction as the new expressway but that it would likewise be necessary to remove and relocate its facilities where the same were located in streets which intersected said expressway but which intersections in the interests of handling the traffic which would flow over such system were to be eliminated. The Telephone Company took the position that it was the obligation of the State Road Department of Florida and not the Telephone Company to remove and relocate such facilities because the expressway was designed and was being built to accommodate a new and different high spped Federal Expressway and could not under any circumstances be construed to be a 'common use of said roads or highways' within the purview of Section 362.01, F.S. 1951, F.S.A., hereafter more particularly discussed. The Telephone Company insisted that to compel it to remove and relocate its facilities at its own expense to accommodate the construction of such a new and different type of highway, when railroads are uniformly and systematically relieved of the cost of relocating their facilities on such projects, constituted, so far as it was concerned, a violation of Sections 1 and 12 of the Declaration of Rights of the Constitution of Florida, F.S.A., and the Fourteenth Amendment to the Constitution of the United States. Moreover, the Telephone Compay argued that inasmuch as the bridges involved were toll bridges and were proprietary rather than governmental in their nature, the police power of the State could not lawfully be exercised to compel the Telephone Company to relocate its facilities as its own expense. It was further claimed by the Telephone Company that it was unreasonable, arbitrary and discriminatory and in violation of its constitutional rights under both the Federal and State Constitutions to require it at its own expense to remove and relocate its facilities on Federal aid highway projects when such facilities constituted no hazard to travel on the streets on which they were located, when the Telephone Company received no benefit from the construction of the project, and when onwers of vehicular traffic who are benefited are not required to make any contribution to the cost of the project. Finally, it was urged by the Telephone Company that it was beyond the power of the State Road Department of Florida in the exercise of its police power to require the relocation of facilities of the Telephone Company at its own expense on a Federal aid highway project which upon completion would form a part of the national system of interstate and defense highways.

To obtain a judicial determination of the foregoing controversy, an action for injunction was initiated in the Circuit Court below. The Telephone Company's answer squarely presented the issues above outlined in connection with the expense of this major alteration and relocation of its facilities. The Road Department moved to strike every material defensive allegation in the answer and, on hearing before the lower court, such motion was granted. In this order the lower court held that each of the contentions of the Telephone Company was without merit, thereby determining that the entire cost of the work was the burden of the Telephone Company. We are now confronted with a petition for writ of certiorari challenging the correctness of that order and presenting for our determination the various reasons assigned by the Telephone Company why the cost of relocating their facilities should be borne by the State Road Department of Florida. Both sides agree that there is only one basic question involved and that is whether the cost of moving and relocating the telephone facilities in connection with the construction of the Jacksonville Expressway System is to be borne by the Telephone Company on the one hand or the taxpayers of the State of Florida on the other.

Section 362.01, F.S.1951, F.S.A., reads as follows:

'To occupy roads.-Any telegraph or telephone company chartered by this or another state, or any individual operating or desiring to operate a telegraph or telephone line, or lines, in this state, may erect posts, wires and other fixtures for telegraph or telephone purposes on or beside any public road or highway; provided, however, that the same shall not be set so as to obstruct or interfere with the common uses of said roads of highways. Permission to occupy the streets of an incorporated city or town must first be obtained from the city or town council.'

Since the first telephone wire was strung in the State of Florida the telephone companies have had the right to use, and in most all instances have used, the public roads and highways of this State over, on, and under which they have constructed their principal transmission lines.

Since the enactment of this statute, this Court has had occasion in only one instance to refer to it. In the case of Peninsular Telephone Company v. Marks, 144 Fla. 652, 655, 198 So. 330, 332, in speaking of Section 6337, C.G.L. which is now Section 362.01, supra, we said:

'The privilege granted supra (under the statute) to erect posts, wires and other fixtures for telephone and telegraph purposes on or beside any public road, highway or street contemplates that the small shall be erected and maintained in such a manner as not 'to obstruct or interfere with the common uses of said road, highway or street'. The primary purpose for the construction and improvements to streets and highways is for the traveling public. In the construction of Section 6337, supra, one of the secondary purposes for which a street or highway could be used was for the erection and maintenance of posts, wires and fixtures commonly used by telephone and telegraph companies, but the use thereof on the streets and highways was so restricted that the appliances and fixtures should not obstruct or interfere with common uses of the streets and highways.'

The Telephone Company insists that the construction of the Jacksonville Expressway does not constitute a common use of the highway; that it is a new idea, a novel conception, a super road, sometimes following present streets but more often cutting across existing streets and through other properties with no valid relation or similarity to a widening or improvement of the existing way.

On the other hand it readily concedes that 'Day in and day out the Telephone Company, without question, relocates at its own expense facilities which obstruct the ordinary local common uses of the highway, when a highway is widened or otherwise improved for local uses and when there are none of the unusual factors involved in this case.' We, therefore, direct our attention first to the question of whether the nature and extent of the Expressway System justifies the instant question receiving any different treatment than the ordinary and...