Town of New Decatur v. American Tel. & Tel. Co.

• Citation: 58 So. 613,176 Ala. 492
• Parties: TOWN OF NEW DECATUR v. AMERICAN TELEPHONE & TELEGRAPH CO.
• Decision Date: 15 February 1912
• Court: Supreme Court of Alabama

58 So. 613

176 Ala. 492

TOWN OF NEW DECATUR v. AMERICAN TELEPHONE & TELEGRAPH CO.

Supreme Court of Alabama

February 15, 1912

On Rehearing, May 1, 1912.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Suit by the American Telephone & Telegraph Company against the Town of New Decatur. From a decree overruling demurrers to the bill, defendant appeals. Affirmed on rehearing.

Dowdell C.J., and Simpson and McClellan, JJ., dissenting.

The case made by the bill is that on the 7th day of June, 1898 the board of aldermen of the town of New Decatur passed an ordinance, which is set out in the bill, which in effect grants to the American Telephone & Telegraph Company, a New York corporation, the right to construct, operate, and maintain telephone and telegraph lines, including the necessary poles, wires, and fixtures, upon, along, and under the streets of said town according to the terms of said ordinance. The ordinance empowered the street committee to direct the location and character of poles and wires to be erected, and provided that the company shall be subject at all times to all ordinances now in force, or that may be hereafter passed, relating to the use of said highways of said town. The bill further shows the construction of a telephone system, under said franchise and ordinance, which was completed on the 2d day of December, 1898, and the operation of the system since that date. The bill further shows an acquisition by the complainant company, an Alabama corporation, of the rights of the Southern Bell Telephone &amp Telegraph Company in said town, together with its franchise and property. It also shows the acquirement by it of all the franchise rights and property of the original grantee, the American Telephone & Telegraph Company, in said town. It is further alleged that on the 14th day of March, 1904, the board of aldermen of the town adopted an ordinance repealing the ordinance of June 7, 1898, and that on the 3d day of May, 1904, such board of aldermen adopted an ordinance requiring the complainant to remove from the streets, avenues, alleys, and highways of said town all of its said poles, wires, cross-arms, property, and fixtures of every kind, and requiring the marshal and police officers of the town to remove all the poles, wires, etc., in case the company did not remove them, and declaring that, if the removal was not made by the company within a specified time, the poles and wires should be declared a nuisance. The bill then alleges the expense of orator in erecting the plant, the number of contracts it has in existence, and that the carrying out of the last-named ordinance would not only impair its contracts, but would impair and absolutely destroy its property and right to do business. It also alleges an attempt or threatened attempt to carry into effect the above-named ordinance. The prayer is for an injunction restraining the city from carrying out the last-named ordinance, and to declare the same void. The demurrers raise the questions discussed in the opinion.

E. W. Godbey and Tennis Tidwell, both of Decatur, for appellant.

Callahan & Harris and Eyster & Eyster, all of Decatur, and Knox, Acker, Dixon & Sterne, of Anniston, for appellee.

SIMPSON, J.

As will be seen from the statement of this case by the reporter, the question for consideration is the right of the municipal corporation of New Decatur to repeal a former ordinance granting to the appellee corporation the right "to construct, operate, and maintain lines of telephone and telegraph, including necessary poles, wires and fixtures, upon and along the highways of the said town," etc. No time was fixed for the duration of said franchise, and the ordinance provides that "said company shall be subject to all ordinances now in force, or may hereafter be passed, relative to the use of said highways of said town." Subsequent to the repealing ordinance, another was passed May 3, 1904, directing said company to remove its poles and wires from said streets within 30 days, and providing that thereafter the same would be considered as a nuisance, and the prayer of the bill is for a writ of injunction to prevent the enforcement of said ordinance. The original ordinance was an exercise of the governmental powers of the municipal authorities granting a franchise. In our Constitution of 1875 there was added to the section (now section 22, Const. 1901) that no ex post facto law, nor any law impairing the obligations of contracts shall be passed, this additional clause "or making any irrevocable grants of special privileges or immunities shall be passed by the General Assembly." This, being a prohibitive law on the power of the Legislature, necessarily carries with it a like prohibition as to the lawmaking power of every municipal corporation, the creature of the Legislature. Subsequent to the adoption of said Constitution, every ordinance of a municipal corporation, in the exercise of its legislative powers, must be construed as if that section of the Constitution was written into it. Sioux City St. Ry. v. Sioux City, 138 U.S. 98, 107, 11 S.Ct. 226, 34 L.Ed. 898; Mayor of Mobile v. Stonewall Ins. Co., 53 Ala. 570, 578, 579. In the case of Weller et al. v. City of Gadsden et al., 141 Ala. 642, 37 So. 682, the justice who wrote the opinion states distinctly that the matter involved was a contract "entered into by the city, in the exercise of its administrative or business powers, rather than under its governing or purely lawmaking authority" (141 Ala. 658, 37 So. 685), and proceeds to make remarks on the effect of section 22 of our Constitution, yet the other justices distinctly place their concurrence in the result on the ground that, whether the repealing ordinance was valid or invalid, the bill was without equity, and pretermit any concurrence in the views expressed in the opinion (141 Ala. 663, 37 So. 687). In the subsequent case of City of Gadsden et al. v. Mitchell, in which the same ordinance came up for consideration, this court pretermitted the question stating "so that the only question is whether, with the contract still in force and unrepealed, said city can refuse to carry out its provisions." 145 Ala. 157, 40 So. 558, 6 L. R. A. (N. S.) 781, 117 Am. St. Rep. 20. This being the law, it necessarily follows that the original ordinance granting the franchise was subject to the power of the municipal authorities to repeal it.

It is next insisted that, under section 5817 of the Code of 1907 (section 2490 of Code of 1896), said telegraph and telephone company was authorized to occupy the streets of said town, regardless of any permission by the municipal authorities. Said section is a part of chapter 135, art. 1, entitled "General provisions as to public roads," and the provisions of said chapter relate to the establishing, laying out, maintaining, etc., of the public roads of the counties, and not to the streets of a municipality. Said section is as follows, to wit: "The right of way is granted to any person or corporation having the right to construct telegraph or telephone lines within this state, to construct them along the margin of public highways." The position of this section in the chapter referred to, and the fact that it is retained in the present Code, notwithstanding the Constitution of 1901, § 220, provides that "no person, firm, association or corporation shall be authorized or permitted to use the streets, avenues, alleys or public places of any city, town or village for the construction or operation of any public utility or private enterprise, without first obtaining the consent of the proper authorities of such city, town or village," are pursuasive to show that said section 5817 was not intended to include the streets of any city, town, or village. It is true that the Supreme Court of Minnesota and other courts resting upon the general definitions of the word "highway" have held that the word includes "streets" (N.W. Tel. Ex. Co. v. Minneapolis, 81 Minn. 140, 83 N.W. 527, 86 N.W. 69, 53 L. R. A. 175), but we cannot assent to that conclusion. We prefer the reasoning and conclusion of Start, C.J., in his dissenting opinion in that case. 81 Minn. 165, 86 N.W. 75, 53 L. R. A. 191. This conclusion is reinforced by the numerous sections of our Code showing that all legislative matters in regard to the streets and other subjects in cities and towns are committed to the municipal authorities.

We hold, then, that said company cannot rest its rights, upon said section 5817. It results that the court erred in overruling the demurrer to the bill as amended and motion to dissolve the injunction.

The decree of the court is reversed, and a decree will be here rendered sustaining the demurrer to the bill as amended, and granting the motion to dissolve the injunction.

Reversed and rendered.

DOWDELL, C.J., and SIMPSON, McCLELLAN, SAYRE, and SOMERVILLE, JJ., concur. ANDERSON and MAYFIELD, JJ., dissent.

MAYFIELD J. (dissenting).

The effect of the ordinances of the city complained of in this bill, and which this decision decrees to be valid, is to take from this complainant, the appellee here, several miles of telegraph and telephone lines, upon which for several years it has been collecting tolls as a public service corporation and to destroy several thousand dollars' worth of its property. It is not pretended that this is done by reason of any forfeiture, or of any wrong done to or suffered by the appellant; but, if it were, surely it would require at least some kind of judicial proceeding and finding to support the confiscation of this property. It is not claimed by the city that these offending ordinances were passed as police regulations; in fact, the bill avers they were not, and the hearing was on demurrer, which,...