State ex rel. Wis. Tel. Co. v. City of Sheboygan

• Decision Date: 20 June 1901
• Citation: 111 Wis. 23,86 N.W. 657
• Parties: STATE EX REL. WISCONSIN TEL. CO. v. CITY OF SHEBOYGAN ET AL.
• Court: Wisconsin Supreme Court

111 Wis. 23

86 N.W. 657

STATE EX REL. WISCONSIN TEL. CO.

v.CITY OF SHEBOYGAN ET AL.

Supreme Court of Wisconsin.

June 20, 1901.

Appeal from circuit court, Sheboygan county; Michael Kirwan, Judge.

Mandamus by the state, on the relation of the Wisconsin Telephone Company, against the city of Sheboygan and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

The relator, the Wisconsin Telephone Company, presented to the circuit court of Sheboygan county its petition for an alternative writ of mandamus, setting out the following facts: The relator is a Wisconsin corporation, organized in 1882, conducting a telephone business and maintaining telephone lines and exchanges in this state. The defendant city of Sheboygan is a municipal corporation, and the other defendants mayor, clerk, and aldermen of said city. The petition sets out the charter provisions regarding control and regulation of city streets, and that in 1893 the council adopted an ordinance providing that the location and erection of all poles, etc., should be subject to the approval of the city authorities, and that the occupation of all streets not already occupied should be upon a plan submitted and approved by the common council. In 1882 the relator established an exchange in the city of Sheboygan, which was a part of its state system, and connected with other exchanges east of the Mississippi and north of the Ohio rivers. The exchange was established without any grant of authority or permission from the city, but its poles were put up and wires strung with its knowledge and consent, and without objection, until 1893, when a competing line was built under an ordinance, a copy of which was attached. Since that time the city has insisted that relator had no right to place any additional poles upon any of its streets without permission, has refused to consent to the location of any poles, or to the extension of its system, has used force to prevent the same, and has seriously interfered with the making of necessary repairs. Since 1893 relator's exchange has not been, and is not now, in accord with the most approved plan of telephone construction, in particulars fully set out. There are many places in the city which cannot be supplied with telephones as the lines are now located, and cannot be reached without setting up additional poles. Relator has been and is now desirous of perfecting its system, extending its lines, and making the same according to the most approved plan of telephone construction. On September 11, 1899, the relator presented to the mayor and common council a petition stating its desires, and a willingness to conform to any and all reasonable requirements or changes thought necessary or desirable in its proposed plan. Attached to the petition was a map of the city showing the location of its poles, the changes proposed, and extensions contemplated. The city authorities were asked to approve the plan and grant permission for the proposed extensions and changes, and, if the plan was not approved, to suggest such changes therein as were deemed for the best interests of the city. Such petition was referred to a special committee of the council. After a conference with the representatives of the company, the committee reported that the latter refused to accept a franchise on the same conditions granted to the Northwestern Telephone Company, which was the competing company before referred to, and recommending that action on the petition be temporarily postponed. Such report was adopted, and no further action on said petition has been taken. The petition herein further sets out that relator was willing to accept a franchise which conformed to the one mentioned except so much of the same as assumed to regulate the rate of telephone charges, and except as to the following requirements: A provision that, should the city desire to purchase the exchange at a price to be fixed by appraisers, it would convey its exchange to the city; the use of the top 30 inches of all poles for the police and fire-alarm or other electric system, free of charge; a condition that, in case the company failed to maintain and operate its exchange, its rights should be forfeited, and its property and poles therein used by the city should become the property of the city; and, lastly, in case the city should construct an exchange for the use of its officials, and not for private use, the city should have the right to connect its exchange with that of relator's, and have the same right to use its telephones in connection with relator's as are given to its patrons, free of charge. The refusal of the city to approve the plan presented prevents the relator from making the changes and extensions desired, and, unless the city be required to take action thereon, relator has no remedy in the premises. An alternative writ of mandamus was issued, to which the defendants made due return. After many additions and denials, the return sets out that the petition, map, and plan of relator before referred to was intended by relator to constitute, and would in law constitute, if approved by the city, a grant or franchise to use the streets and alleys named for its purposes, and that no application for such franchise had ever been published in the official paper of the city, as required by section 940b, Rev. St. 1898; that the action of the council on said petition was not based solely upon the refusal of relator to accept a franchise fixing rates, but was based upon the power, authority, and discretion of the common council to require and enact reasonable regulations and by-laws, such as were contained in the franchise granted to the other company, and embodying the conditions hereinbefore mentioned. The return also sets out that the streets of the city are now, and since 1896 have been, incumbered and obstructed to a great extent by the poles of the different telephone, telegraph, electric light, and electric street-railway companies, and by poles belonging to the city used for its fire-alarm system; and that a prudent exercise of the power vested by law in the council requires that a change be made in the mode of running wires, and that they be required to run underground as soon as practicable. It also sets out that relator has not and cannot obtain the consent of lot owners to place poles in the streets, and has not the power of eminent domain, and that the granting of the petition would be vain and nugatory. Further, that the relator's exchange was erected without right; is defective and inadequate; a source of annoyance and a nuisance to the inhabitants; is being maintained to create a monopoly, and to compel the other company to either raise its rates, go out of business, or consolidate with relator, and to that end has refused to submit to any regulation fixing charges, and has offered its telephones free of charge. The field is limited as to patronage, and a franchise to relator without regulation as to charges would result in impairing the efficiency of service, or in the insolvency or consolidation of the companies. It was to prevent this disastrous condition of affairs, and because the council did not wish to legalize the present unlawful structures of relator in the streets, that the petition of relator was refused. The right to deny the petition as a matter of discretion was also claimed. By further allegations the defendants disclaim the right to control through or long-distance business of the company, but insist that local business may be continued under reasonable regulations. The return sets out an ordinance adopted in 1893 regulating the erection of poles and the stringing of wires for the transmission of electricity, being sections 183 to 216. Section 187 provides that the exact location of all poles shall be subject to the approval of the proper city authorities, and that the occupation of all streets not already occupied shall be upon a plan to be approved by the common council. A demurrer to the return on the ground that it did not state facts sufficient to constitute a defense to the issuance of the writ was overruled. In a lengthy written opinion, the trial judge bases his ruling largely upon noncompliance with section 940b. The relator appeals from the order overruling the demurrer.

Miller, Noyes & Miller, for appellant.

T. M. Bowler, City Atty., for respondents.

BARDEEN, J. (after stating the facts).

The relator is a Wisconsin corporation organized for the purpose of establishing, maintaining, and operating a system of telephones in this state. It has such powers, and is subject to such restrictions and regulations, as are granted and prescribed by law. Its authority to use and occupy the streets and highways of the state is granted by section 1778, Rev. St. 1898, which came into existence in 1848. So far as is material to this litigation, such section reads as follows: “Any corporation formed under this chapter to build and operate telegraph lines, or conduct the business of telegraphing, may construct and maintain any such lines with all necessary appurtenances, from point to point upon or along or across any public road, highway or bridge or any stream or body of water, or upon the land of any owner consenting thereto, and from time to time extend the same at pleasure; * * * but no such telegraph line or any appurtenance thereto shall at any time obstruct or incommode the public use of any road, highway, bridge, stream or body of water.” The right of a telephone company to organize, to erect lines, and to do business under our laws, and especially under section 1778, was first challenged in the case of Wisconsin Tel. Co. v. City of Oshkosh, 62 Wis. 32, 21 N. W. 828. That right was vindicated in an opinion by the present chief justice, and which has been cited with approval in many jurisdictions. Duke v. Telephone Co., 53 N. J. Law, 341, 21 Atl. 460;Cumberland Telephone & Telegraph Co. v. United Electric Ry. Co. ...