Wis. Tel. Co. v. City of Milwaukee

• Decision Date: 24 October 1905
• Citation: 104 N.W. 1009,126 Wis. 1
• Parties: WISCONSIN TELEPHONE CO. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

126 Wis. 1

104 N.W. 1009

WISCONSIN TELEPHONE CO.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Oct. 24, 1905.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by the Wisconsin Telephone Company against the city of Milwaukee. From an order overruling a demurrer to the answer, plaintiff appeals. Reversed.

Appeal from an order overruling plaintiff's demurrer to defendant's answer. The complaint alleges: In effect, the incorporation of defendant as a municipal corporation, the organization of plaintiff in 1882 under the statutes of Wisconsin then in force and the acts amendatory thereof, being re-enacted into section 1771, Rev. St. 1898, and that said plaintiff was so organized for the purpose of conducting a telephone business and maintaining telephone lines and exchanges, and in order to furnish lines of telephone communication to the public throughout the state of Wisconsin and other states. That prior to the organization of plaintiff the Legislature of the state of Wisconsin, in prescribing the powers of telephone corporations, enacted a law which was re-enacted by section 1778, Rev. St. 1898, which was held by this court, in Wisconsin Tel. Co. v. Oshkosh, 62 Wis. 32, 21 N. W. 828, to apply to the plaintiff corporation, and that said statute applies to city streets and authorizes a Wisconsin telephone company, including plaintiff, to construct and maintain its telephone lines along the streets of Wisconsin cities without applying for or obtaining from any city any franchise, and that no such city has the power to add to or detract from such legislative grant, and that the police power vested in said city to regulate its streets can be exercised only in harmony with said franchise. That under said power conferred upon plaintiff it established in defendant, city of Milwaukee, a telephone exchange, which was a part of its system of telephone lines and exchanges throughout the state of Wisconsin, and connected with other exchanges throughout the United States. That as a part of plaintiff's system, and necessary thereto, it has erected poles in defendant city along the streets and alleys thereof, and placed cross-arms, so called, thereon for the purpose of stringing wires, by means of which plaintiff is enabled to carry on its said business. That the poles within the limits of said defendant city number 6,900, and plaintiff intends to constantly increase said number as the demand requires, and that most of said poles bear cross-arms, ranging in number from one to eight. That plaintiff did not construct and operate, and is not maintaining and operating, its said system within said city pursuant to any grant of authority or permission by defendant city, but constructed, maintained, and operated, and continues so to do, its telephone system in said city by virtue of the authority conferred upon it by statute similar to and re-enacted in sections 1771 and 1778, Rev. St. 1898, and without objection on the part of the defendant. That the poles and lines of plaintiff in said city are so located, constructed, and maintained as not to interfere with public travel, and in no way affect public safety or convenience, and that plaintiff has at all times complied with the requirements of law regarding the location, maintenance, and operation of its poles and lines, and that its system in said city is safe and convenient for public use. That its property is not assessed and taxed the same as the property of individuals, but by legislative enactment has been exempted from taxation, but required in lieu of taxation to pay a license fee prescribed by section 1222a, Rev. St. 1898. That it has at all times paid said license fee provided by law. That on February 9, 1904, defendant adopted an ordinance which was thereafter approved and published and which defendant claims has gone into force as a valid ordinance. The ordinance is entitled “An ordinance regulating the construction and maintenance of poles and their attachments in or upon any street, lane, alley, sidewalk or city property within the limits of the city of Milwaukee, Wisconsin, for telegraph, telephone, electric light or other poles in said city, except poles owned by the municipality itself, and providing a penalty for the violation thereof.” Sections 1 and 2 of said ordinance provide that such poles shall be designated by the name of such owners or lessees, and each pole shall have a distinct number not more than 10 feet from the grade of the street, and that such poles shall be placed, replaced, erected, and maintained only at such points as shall be designated by the board of public works, and that such board shall keep in its office an accurate record of the location of each pole as designated and permitted by it, and that such board at least once a year shall cause a thorough count, inspection, and record of the poles and cross-arms, and, if any shall be found defective, unsuitable, or unsound, it shall notify the owners or lessees to forthwith replace the same, and it shall be the duty of such owners or lessees to replace such defective, unsuitable, or unsound pole or cross-arm within 48 hours. Sections 3, 4, and 5 are as follows:

“Sec. 3. It shall be the duty of all such owners or lessees on or before the first Monday in June A. D. 1904, and annually thereafter, to apply in writing to the city clerk for a license to maintain for the ensuing year the poles and cross-arms then erected, specifying the poles to be maintained by their designation, as provided for in this ordinance, together with the number of cross-arms thereon, and the city clerk shall issue such license to such applicant upon presentation of a receipt from the city treasurer acknowledging payment to him, for the use of the city of Milwaukee, of one dollar for each and every pole authorized to be maintained thereby, including one cross-arm, if any, thereon, and ten cents for each additional cross-arm. Said license shall authorize the maintenance of the poles and cross-arms designated in such application only, for the period of one year, to be computed from the first Monday in June of each and every year and no longer.

Sec. 4. All revenues derived from licenses under this ordinance shall be credited to and become part of the general city fund.

Sec. 5. Any person, firm, company or corporation who shall violate any provisions of this ordinance, shall be subject to a penalty of one hundred dollars for each and every offense, to be sued for and recovered in the manner now provided by law for the recovery of like penalties; and the erection or maintenance of any single pole or cross-arm in violation of the provisions of this ordinance, shall constitute a distinct and separate offense thereunder.”

That the charter of the city of Milwaukee, chapter 184, p. 311, laws of Wisconsin for 1874, and acts amendatory thereof, confer certain powers upon defendant respecting regulation of the streets in said defendant city, but that said streets belong to the public under the Constitution and laws of the state of Wisconsin. That the state has granted, by act of the Legislature, to plaintiff the franchise and right to use such streets under section 1778, Rev. St. 1898, and that said defendant has no police control over its streets, except the police control granted by the provisions of its charter. That the police power granted to defendant by its charter confers no authority to pass and enforce the ordinance. That the exaction of the license fee in said ordinance is not authorized by law, nor by the provisions of chapter 184, p. 311, Laws 1874, and acts amendatory thereof. That said ordinance is void as being in contravention of the Constitution of the United States and of the Constitution of the state of Wisconsin. That said license fee specified in said ordinance is a tax, and that said ordinance was not passed with a view of regulating plaintiff's business or property, but for revenue purposes only, and that said license fee is arbitrary and unreasonable in amount. The complaint further alleges that the defendant threatens to enforce the ordinance, which will cause a multiplicity of suits and irreparable injury to plaintiff, and prays that defendant be enjoined, and that the ordinance be declared null and void.

The answer admits the material allegations of the complaint, but denies that the poles are so located and maintained as not to affect public safety, denies that the ordinance was passed without authority of law, and that the exaction of the license fee was not authorized, and that the ordinance was invalid or contravenes any provision of the federal or state constitution, and denies that the license fee of one dollar a pole is unreasonable.

Plaintiff demurred to the answer for want of facts sufficient to constitute a defense.

Miller, Noyes & Miller, for appellant.

Carl Runge, City Atty., and Geo. E. Ballhorn, Asst. City Atty., for respondent.

KERWIN, J. (after stating the facts).

The questions presented here upon the facts admitted by the demurrer are thus stated by respondent: “First. Has the city authority to exact a license such as is provided for in the ordinance, the enforcement of which the appellant seeks to enjoin? Second. Does the ordinance in question contravene the fourteenth amendment of the federal Constitution, and similar provisions of the Wisconsin state Constitution?”

The first proposition stated by counsel practically embraces the controversy before us, and we shall proceed to consider the right of the defendant city to exact the license fee. It is apparent from the argument of counsel for respondent, as well as from the authorities cited, that the ordinance is sought to be upheld under power of the defendant city to license the plaintiff and exact the license fee provided for in the ordinance. It is, however, contended that the license fee is not exacted for any right or privilege conferred upon the plaintiff, but simply as a police...