State ex rel. Bell Tel. Co. v. Flad

• Decision Date: 26 October 1886
• Citation: 23 Mo.App. 185
• Parties: THE STATE EX REL. BELL TELEPHONE COMPANY, Respondent, v. HENRY FLAD ET AL., Appellants.
• Court: Missouri Court of Appeals

23 Mo.App. 185

THE STATE EX REL. BELL TELEPHONE COMPANY, Respondent,

v.HENRY FLAD ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Oct. 26, 1886.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

LEVERETT BELL, for the appellants.

HITCHCOCK, MADILL & FINKELNBURG, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is a proceeding by mandamus to compel the board of public improvements of the city of St. Louis to grant a permit, or permits, for erecting telephone poles upon certain streets and alleys in the city of St. Louis, in accordance with the provisions of an ordinance of the city numbered 11,604, by which the subject is regulated. A demurrer to the return was sustained by the circuit court, and, the defendants declining to plead further, a peremptory writ was ordered to issue.

The question for decision, therefore, arises upon the legal sufficiency of the return, and it is this: Whether the board of public improvements have the power to oblige a corporation, formed under the laws of this state (under article 5, chapter 21, of the Revised Statutes, relating to the incorporation of telegraph and telephone companies), which may desire to erect telephone poles and establish telephone wires in the city of St. Louis, to enter into a stipulation (1) “to grant to any other company requiring electric wires for its business, the right to use one or more cross-bars of its poles at an annual rent of forty cents for half a cross-bar, and sixty cents for a full cross-bar, except in cases where the party asking for room on another company's poles is itself charging that company a higher rent por cross-bar on its own poles heretofore erected, in which case an equal rental may be demanded for wires on poles erected under these rules.” And also (2) “that it will not place any more wires or cables on its own poles, or on the poles of other companies, than are actually necessary for its business, and that it will promptly remove any unused wires from the poles.” The refusal of the relator to file its acceptance in writing of these conditions is, the return shows, the sole reason why the board refuses to grant the permit or permits prayed for.

The question is one of extreme simplicity. By section 879 of the Revised Statutes, it is provided as follows: “Companies organized under the provisions of this article, for the purpose of constructing and maintaining telephone or magnetic telegraph lines, are authorized to set their poles, piers, abutments, wires, and other fixtures, along and across any of the public roads, streets, and waters of this state, in such manner as not to incommode the public in the use of such roads, streets, and waters.” The only limitation imposed by the legislature upon this privilege relating to the use of the streets and alleys of cities and towns for telephone posts is embodied in section 888 of the Revised Statutes, which is in the following language: “The mayor and aldermen, or board of common council of any city, and the trustees of any incorporated town, through which the lines of any telephone or telegraph company are to pass, may, by ordinance, or otherwise, specify where the posts, piers, or abutments, shall be located, the kind of posts that shall be used, the height at which the wires shall be run; and such company shall be governed by the regulations thus prescribed; and after the erection of said telephone or telegraph lines, the said mayor and aldermen, or board of common council, and the trustees of any incorporated town, shall have power to direct any alteration in the...