Western Union Telegraph Company v. City of Richmond

• Citation: 56 L.Ed. 710,224 U.S. 160,32 S.Ct. 449
• Decision Date: 01 April 1912
• Docket Number: No. 195,195
• Parties: WESTERN UNION TELEGRAPH COMPANY, Appt., v. CITY OF RICHMOND
• Court: United States Supreme Court

224 U.S. 160

32 S.Ct. 449

56 L.Ed. 710

WESTERN UNION TELEGRAPH COMPANY, Appt.,

v CITY OF RICHMOND.

No. 195.

Argued March 6 and 7, 1912.

Decided April 1, 1912.

Messrs. Rush Taggart and A. L. Holladay for appellant.

[Argument of Counsel from pages 161-165 intentionally omitted] Mr. H. R. Pollard for appellee.

Mr. Justice Holmes delivered the opinion of the court:

This is a bill in equity, filed on June 21, 1904, to restrain the enforcement of an ordinance of September 10, 1895, codified as chapter 88 of the ordinances of Richmond, and amended March 15, 1902, and December 18, 1903. The plaintiff alleges that the ordinance infringes its rights under the act of July 24, 1866, chap. 230, 14 Stat. at L. 221 (Rev. Stat. §§ 5263 et seq., U. S. Comp. Stat. 1901, p. 3579), and under article 1, § 8 (the commerce clause), and the 14th Amendment of the Constitution of the United States. The circuit court dismissed the bill (178 Fed. 310), and the plaintiff appealed. The act of Congress gives to telegraph companies that accept its provisions the right to construct, maintain, and operate lines over the post roads of the United States, such as the streets of Richmond concerned are admitted to be. Rev. Stat. § 3964, act of March 1 1884, chap. 9, 23 Stat. at L. 3, U. S. Comp. Stat. 1901, p. 2707. Some of the objections to the ordinance are based upon this statute and some are not; we take them as they come.

By § 1 poles and wires are not to be put up 'until the city engineer shall have first determined the size, quality, character, number, location, condition, appearance, and manner of erection of' the same. By § 4 the committee on streets may require permission to be given to others to place upon the poles light current wires which, in the Committee's opinion, will not unreasonably interfere with the owners' business; terms, if not agreed upon, to be submitted to arbitration. By § 15 the chief of the fire department and the superintendent of fire alarm and police telegraph are to inspect poles and wires, and if a pole is unsafe, or the attachments or insulations, etc., are unsuitable or unsafe, are to require them to be altered or replaced and removed, with a fine for each day's failure to obey the order. By § 26 violation of any provision, or failure to obey any requirement made under the ordinance by the city engineer or the just-named superintendent or chief, if not specially fined, is to be fined from ten to five hundred dollars a day, by the police justice. Finally, by § 28, as amended in 1903, all overhead wires within a certain territory are to be removed, and within two months plans for conduits are to be submitted to the committee on streets and Shockoe creek, showing location, plan, size, construction, and material. These plans may be altered or amended by the committee, and when satisfactory to it are to be followed by the owner of the wires in a manner satisfactory to the city engineer. The pavements are to be replaced and kept in repair to his satisfaction and the city saved harmless from damages. The conduits are to provide for an increase of 30 per cent, not to be occupied by third parties without consent of the committee and compensation, but the wires of the city to be carried free, one duct being reserved for them. The location, size, shape, and subdivision of the conduits, the material and manner of construction, must be satisfactory to the city engineer, and the work of laying underground conduits is to be under the direction and to the satisfaction of the superintendent of fire alarm and police telegraph.

All these provisions are objected to as subjecting the appellant to an arbitrary discretion,—in § 1, that of the city engineer as to the poles; in § 4, that of the committee on streets as to the use of the poles; in § 15, that of the chief and superintendent mentioned as to not only the safety of the poles and wires, but the unsuitableness of the latter, or their attachments, insulation, or appliances; in § 28, that of the committee on streets as to underground plans, that of the superintendent of fire alarm as to laying the conduits, and that of the city engineer as to the replacement of pavement in the streets, and the carrying out of the plans in all the details just stated. It is argued also that by § 26 the appellant is subjected to further requirements without limit from the officers named, but this argument may be dismissed, the requirements referred to being only those 'made under this chapter;' that is, specifically authorized in the other sections to which we have referred. Again, the objections are not to be fortified by those decisions that turn on the power to delegate legislative functions. United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480. We have been shown no ground for supposing that the ordinance exceeded the power of the legislature to authorize, or of the city to enact, unless it interferes with some special paramount right of the appellant. The bill is brought wholly on the ground that the appellant has such rights that no state legislation can touch. Unless it has them, there is nothing in the Constitution of the United States to prevent the grant of these discretionary powers to the committees and officers named. Davis v. Massachusetts, 167 U. S. 43, 42 L. ed. 71, 17 Sup. Ct. Rep. 731; Gundling v. Chicago, 177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct. Rep. 633, Fischer v. St. Louis, 194 U. S. 361, 371, 48 L. ed. 1018, 1023, 24 Sup. Ct. Rep. 673; Prentis v. Atlantic Coast Line Co. 211 U. S. 210, 225, 53 L. ed. 150, 158, 29 Sup, Ct. Rep. 67.

The appellant says that it has the right to occupy the streets of Richmond under the act of Congress, and therefore, although subject to reasonable regulation, it cannot be subjected to a discretion guided by no rules. Neither branch of this proposition, as applied to this case, commands our assent. To begin with the end, while it is true that rules are not laid down in terms, they are implied so far as there need to be any. If the committee and officers do their duty, there is no room in the questions left to them for arbitrary whim. They are to exercise their judgment on the suitableness, safety, etc., of the places, poles, and wires by the criteria that would be applied by all persons skilled in such affairs who should seek to reconcile the welfare of the public and the instalment of the plant. The objection that other motives may come in is merely that which may be made to all authority,—that it may be dishonest,—an objection that would make government impossible if it prevailed. It is said that the ordinance should confine the committee and officers to finding whether required and specified facts exist. But not only is it impossible to set down beforehand every particular fact that may have to be taken into account, but, in case of dishonesty, it would do no good. We are of opinion that the ordinance is not unreasonable as a grant of arbitrary power. Regulations very like these were upheld, so far as they presented Federal questions, against a company assumed to have a right to use the streets, in Missouri ex rel. Laclede Gaslight Co. v. Murphy, 170 U. S. 78, 99, 42 L. ed. 955, 964, 18 Sup. Ct. Rep. 505. See also Wilson v. Eureka City, 173 U. S. 32, 43 L. ed 603, 19 Sup. Ct. Rep. 317.

In view of what we have said and the appellant's admission that it is subject to reasonable regulation, it would be unnecessary to consider its rights under the act of Congress but for some further complaint that the appellant's property is taken without due process of law. That complaint opens the question what property the appellant has. The act of Congress, of course, conveyed no title, and did not attempt to found one by delegating the power to take by eminent domain. Western U. Teleg. Co. v. Pennsylvania R. Co. 195 U. S. 540, 574, 49 L. ed. 312, 324, 25 Sup. Ct. Rep. 133, 1 A. & E. Ann. Cas. 517. It made the erection of telegraph lines free to all submitting to its conditions, as against an attempt by a state to exclude them because they were foreign corporations, or because of its wish to erect a monopoly of its own. Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708. It has been held to prevent a state from stopping the operation of lines within the act by injunction for failure to pay taxes. Western U. Teleg. Co. v. Atty. Gen. 125 U. S. 530, 31 L. ed. 790, 8 Sup. Ct. Rep. 961. But except in this negative sense, the statute is only permissive, not a source of positive rights. The inability of the state to prohibit the appellant from getting a foothold within its territory, both because of the...