State ex rel. LaRimer v. Chariton Tel. Co.

• Decision Date: 18 January 1916
• Docket Number: No. 29759.,29759.
• Citation: 155 N.W. 968,173 Iowa 497
• Parties: STATE EX REL. LARIMER ET AL. v. CHARITON TELEPHONE CO.
• Court: Iowa Supreme Court

173 Iowa 497

155 N.W. 968

STATE EX REL. LARIMER ET AL.

v.CHARITON TELEPHONE CO.

No. 29759.

Supreme Court of Iowa.

Jan. 18, 1916.

Appeal from District Court, Lucas County; F. M. Hunter, Judge.

Action to oust the defendant company and its poles and wires from the streets, alleys, and public places of the city of Chariton. The demurrer of the defendant to the petition was sustained. Plaintiff elected to stand upon the petition, and judgment was entered against the plaintiff. Plaintiff appeals. Affirmed.

Weaver and Preston, JJ., dissenting.

Storie & Kridelbaugh, of Chariton, for appellant.

J. A. Penwick, of Chariton, and Parker, Parrish & Miller, of Des Moines, for appellee.

DEEMER, J.

This case was submitted with State of Iowa ex rel. Shaver v. Iowa Telephone Co., 154 N. W. 678. The issues are substantially the same as in that case, except that plaintiff relies upon an ordinance of the city of Chariton, and the defendant does not rely on laches and one or two other defenses interposed in the other case. Chariton is an incorporated city of the second class, and in 1894 passed an ordinance granting to the defendant company the right to erect, maintain, and use poles in the streets of the city for telephone purposes upon certain conditions for the period of 15 years. The 15 years expired in 1909. After the passage of the ordinance the company did construct a telephone exchange within the city and upon its streets and alleys, and has continued to operate the same and occupy the streets and alleys with its poles and wires ever since.

The demurrer of the defendant was on the following grounds: The ordinance is invalid because of a want of power in the city of Chariton to enact said ordinance, or grant the franchise which it purports to contain because prior to the Code of 1897 the power to grant such franchises or rights rested solely in the state. That when defendant constructed its telephone system in Chariton, there was in force section 1324 of the Code of 1873 as amended by chapter 104 of the Acts of the Nineteenth General Assembly, and that defendant's lines were constructed under the grants contained in said section, and the Legislature has never granted the city of Chariton any power to cancel or terminate said grant. That the construction and subsequent operation of its telephone lines by defendant was an acceptance of the grant contained in the statute, and constituted a contract between defendant and the state of Iowa which the state has never attempted to rescind. That by accepting the grant under the statute aforesaid the defendant acquired the right in perpetuity to maintain its poles and wires upon the streets of Chariton, subject only to the exercise of the police power, and that such right in perpetuity is protected by the Constitution of the United States, which provides that no state shall enact any law impairing the obligations of a contract, which right the defendant sets up and relies upon.

The points relied upon by plaintiff appellant are that, the Legislature having defined the word “highway,” the court is bound by that definition, and cannot construe the word otherwise. That the defendant company never had the right to construct its exchange upon the streets of Chariton prior to the ordinance granting such right in 1894. That the city of Chariton had the power to grant a license to the telephone company, and such was the effect of the ordinance passed in 1894. That if the telephone company was given a grant by the statute relied upon, it took the same subject to Code section now 1619, as enacted in the Code of 1873, and new conditions have been imposed upon the enjoyment of the same by sections 775 and 776, which conditions the telephone company has failed to comply with.

The plaintiff appellant contends that the court arrived at the wrong conclusion in the Chamberlain Cases, 119 Iowa 619, 93 N. W. 596, in construing “highways” in the statute to include streets and alleys, and this is one of the reasons why it contends the defendant is not entitled to occupy the streets. Another contention, as already stated, is that new conditions have been imposed upon the enjoyment of the right by sections 775 and 776 of the Code of 1897.

We do not consider it necessary to pass upon the question as to the effect of the ordinance; the defendant company does not claim any right under it. It should be said, perhaps, that a majority of the electors have not voted in favor of any franchise to the defendant company, as provided in section 776 of the statute.

[1][2] Every point save one in this case is ruled by State ex rel. Shaver v. Iowa Telephone Co., 154 N. W. 678, decided at the present sitting of the court adversely to appellant's contention. That one point has reference to the effect of the ordinance granted by the city of Chariton to the telephone company and the telephone company's acceptance thereof. It is conceded that there was no statutory authority in the city to grant a franchise to the company, and that at best the ordinance was nothing more than a police or regulatory measure. It is so fundamental as not to require the citation of authority that a municipality has no power except as expressly granted by the Legislature, or such as is necessarily to be inferred from the power granted. It had no power to grant the telephone company a charter in the year 1894, and its act in so doing was ultra vires and void. The acceptance of the ordinance by the company did not estop it from claiming under a valid legislative grant by the state; and, even if the act be treated as a license to the defendant to use its streets, all terms of that license have been complied with, and neither party is claiming anything directly thereunder. The same point was involved in Chamberlain...