Sunset Tel. & Tel. Co. v. City of Pomona

• Decision Date: 31 August 1908
• Docket Number: 1,209.
• Citation: 164 F. 561
• Parties: SUNSET TELEPHONE & TELEGRAPH CO. v. CITY OF POMONA et al.
• Court: U.S. Court of Appeals — Ninth Circuit

164 F. 561

SUNSET TELEPHONE & TELEGRAPH CO. v. CITY OF POMONA et al.

No. 1,209.

United States Circuit Court, S.D. California, Southern Division.

August 31, 1908

Complainant a California corporation, does a telephone business in the city of Pomona, Cal., and for this purpose has constructed and maintains its local lines running from its central station to its subscribers in said city. Complainant also does a telephone and telegraph business in the states of California, Oregon, Washington, and Nevada, under one general system, owning and using 133,000 miles of wire, of which more than 35,000 miles are used exclusively for long-distance messages, 130,000 telephones, 1,200 offices, of which 451 are exchange stations, and over 100,000 poles, and the lines of this system run into said city and terminate at said central station. Complainant claims that its local lines in Pomona are an integral part of its general telegraph system, and aid in and complete the transmission of interstate telegrams to and from its subscribers in said city.

On August 8, 1888, the city of Pomona passed an ordinance (No 30) granting to Sunset Telephone-Telegraph Company (a corporation distinct and separate from the complainant) a franchise to erect and maintain for a period of 10 years poles and telephone wires along the streets of the city which franchise expired by its own limitation August 8, 1898. In April, 1889, complainant was incorporated, and in May 1889, the grantee in said ordinance transferred all of its property to complainant, and since then complainant has maintained and operated its lines in said city. From August 8, 1898, the date of the expiration of Ordinance No. 30 until about the middle of the year 1902, complainant, in extending and enlarging its system in Pomona, so as to accommodate new subscribers, expended more than $10,000, and about May, 1904, expended more than $6,700, in changing and reconstructing its poles and wires on Second street in said city, and in addition to said sums expended $1,500 in extension work subsequent to October 23, 1903, and claims that said expenditures were made with the acquiescence and consent and under the direction of the city, and, further, that the expenditure of $6,700 was made also in consideration of the recognition by the city of the right of complainant to maintain and operate its system in said city, without securing a franchise from the city.

Complainant also claims that the construction, maintenance, and operation of its lines were an acceptance of the terms of section 536 of the Civil Code of California, and an inviolable contract was thus created between the state and itself. The foregoing claims of complainant are disputed by respondent, and the court's deductions from the evidence on said issues are indicated in its opinion. The statutes construed by the court are not set forth in its opinion, and therefore copies of those most frequently referred to will be given here.

Section 536 of the Civil Code of California, as re-enacted March 20, 1905, is as follows:

'Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this state, and may erect poles, posts, piers or abutments for supporting the insulators, wires and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.'

St. Cal. 1905, pp. 491, 492, c. 385.

Prior to its re-enactment, telephone companies were not mentioned in the section.

The first section of the act of March 22, 1905, entitled 'An act providing for the sale of street railroad and other franchises in counties and municipalities, and providing conditions for the granting of such franchises by legislative or other governing bodies, and repealing conflicting acts,' is as follows:

'Every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate street or interurban railroads upon any public street or highway, to lay gas pipes for the purpose of carrying gas for heat and power, to erect poles or wires for transmitting electric heat and power along or upon any public street or highway, or to exercise any other privilege whatever hereafter proposed to be granted by boards of supervisors, boards of trustees, or common councils, or other governing or legislative bodies of any county, city and county, city or town within this state, except steam railroads and except telegraph or telephone lines doing an interstate business, and renewals of franchises for piers, chutes, or wharves, shall be granted upon the conditions in this act provided, and not otherwise.'

St. Cal. 1905, p. 777, c. 578.

The act entitled 'An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military and other purposes,' approved July 24, 1866 (14 Stat. 221, c. 230), and embodied in sections 5263 to 5268 of the United States Revised Statutes (U.S. Comp. St. 1901, pp. 3579-3581), is as follows:

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that any telegraph company now organized, or which may hereafter be organized under the laws of any state in this Union, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States, which have been or may hereafter be declared such by act of Congress, and over, under or across the navigable streams or waters of the United States: Provided, that such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance and operation of said lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption through which its said lines of telegraph may be located as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be made within fifteen miles of each other.

'Sec.2. And be it further enacted, that telegraphic communications between the several departments of the government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, have priority over all other business, and shall be sent at rates to be annually fixed by the Postmaster General.

'Sec. 3. And be it further enacted, that the rights and privileges hereby granted shall not be transferred by any company acting under this act to any other corporation, association, or person: Provided, however, that the United States may at any time after the expiration of five years from the date of the passage of this act, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all of said companies at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the Postmaster General of the United States, two by the company interested, and one by the four so previously selected.

'Sec 4. And be it further enacted, that before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the Postmaster General of the restrictions and obligations required by this act.'

On the 14th day of December, 1897, complainant filed with the Postmaster General its written acceptance of the restrictions and obligations required by said act of Congress.

In the act of Congress entitled 'An act to revise, consolidate and amend the statutes relating to the Post Office Department,' approved June 8, 1872 (17 Stat. 283, 309, c. 335), and embodied in Rev. St. U.S. Sec. 964 (U.S. Comp. St. 1901, p. 2707), is the following provision:

'Sec 205. That all letter carrier routes established in any city or town for the collection or delivery of mail matter by carrier are hereby declared post routes.'

The act of Congress entitled 'An act making all public roads and highways post routes,' approved March 1, 1884 (23 Stat. 3, c. 9 (U.S. Comp. St. 1901, p. 2708)), provides 'that all public roads and highways, while occupied by and maintained as such, are hereby declared to be post routes.'

On the 6th day of June, 1905, the board of trustees of the city of Pomona passed a resolution, of which the following is a copy:

'Whereas, the Sunset Telephone & Telegraph Company, a corporation, is now, and during all the times hereinmentioned was, engaged in local telephone business in the city of Pomona; and

'Whereas, said company obtained a right and franchise for telephone purposes only, from said city to enter and do business in said city for the period of ten years, on August 8, 1888, as evidenced by Ordinance No. 30 of said city; and

'Whereas, by the terms of said ordinance said franchise expired during the year 1898, and said company now has no franchise nor any right from said city, nor at all to use, occupy or obstruct the streets of said city for telephone purposes; and

'Whereas, the trustees of said city have repeatedly requested and still request said company to secure from said city such a franchise as will compel an observance of those or similar conditions contained in the

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