W.U. Tel. Co. v. City of Toledo

• Decision Date: 11 March 1903
• Docket Number: 1,120.
• Citation: 121 F. 734
• Parties: WESTERN UNION TELEGRAPH CO. v. CITY OF TOLEDO et al.
• Court: U.S. Court of Appeals — Sixth Circuit

121 F. 734

WESTERN UNION TELEGRAPH CO. v. CITY OF TOLEDO et al.

No. 1,120.

United States Court of Appeals, Sixth Circuit.

March 11, 1903

Henry D. Estabrook (John W. Warrington, of counsel), for appellant.

M. R Brailey and Chas. K. Friedman, for appellees.

Before LURTON and SEVERENS, Circuit Judges.

SEVERENS Circuit Judge.

This case was here before on an appeal by the city of Toledo from an order granting a preliminary injunction restraining it from interfering with the construction of a district telegraph system by the telegraph company, the present appellant, in the streets of the city. The case was fully argued, and a decision was here rendered, reversing the order of the Circuit Court upon the ground that it was improvidently made, and remanding the cause for further proceedings. 107 F. 10, 46 C.C.A. 111, 52 L.R.A. 730, to which report reference may be made for the facts then presented. After the cause was remanded, the Circuit Court permitted the telegraph company to file a supplemental and amended bill. The only amendment or supplemental matter added which is important to be now considered consisted of an allegation that since the former appeal the company 'petitioned the superintendent of fire-alarm telegraph and the city civil engineer to grant to your orator permits to lay in its said conduits heretofore built in said city such cables as it might deem necessary for the proper conduct and operation of telegraphing, and to connect the wires in said cables with its main and various branch offices throughout the city of Toledo, and with its call boxes located in various business blocks and public buildings in said city, where the owners of such business blocks and the superintendents of such public buildings desire to have the use and advantage of the same; thus enabling the tenants and occupants of such buildings to call up messengers of your orator to come and receive their messages to be sent over the lines of the Western Union Telegraph Company; such call-box service to be similar to that which is now owned and operated, and which for many years last past has been owned and operated, by the Postal Telegraph-Cable Company in the City of Toledo'; and that the officials mentioned made the following reply:

'The wires, cables, fixtures, etc., pertaining to the local messenger call-box system, which you include in your request were erected under the temporary injunction granted by Judge Clark, which has been dissolved, and his decision reversed were not constructed under the supervision or approval of the proper officials of the City of Toledo. Furthermore, we have not the authority to issue a permit or grant any rights to any person, company, or corporation for any such purpose without the applicant having first obtained a permit, license or franchise from...