122 Minn. 34 | Minn. | 1913
The plaintiff brought this action to enjoin the City of Thief River Falls and the Tri-State Telephone Company from entering into a contemplated contract for the construction and operation of a telephone system within the city. The defendants demurred to the complaint for insufficiency of facts. From an order sustaining the demurrer, the plaintiff appeals.
The city of Thief River Falls is organized under Laws 1895, p. 16, c. 8.
Section 135, subd. 6, p. 55, gives it the power, exercisable by ordinance, “to regulate and control or prohibit the placing of poles and the suspending of wires along or across the streets and alleys. * * * }>
Section 142, p. 67, provides that the council shall not let a contract for the performance of work or the furnishing of materials or supplies or property, or authorize the purchase or sale of property, involving the expenditure of more than $100, nor grant any public franchise, except upon advertisements for proposals.
Section 145, p. 68, provides that all advertisements for proposals shall be made by publication of a notice containing a description of -the contract to be let or the property to be purchased or sold, or fran<chise to be granted, and shall invite sealed proposals.
No advertisement for proposals was made. There was no ordinance. The proposed contract was accepted by resolution at a special meeting.
Some of these sections of the charter were considered in Tri-State Telephone & Telegraph Co. v. City of Thief River Falls, 183 Fed. 854, where it was held that the requirement of advertising for proposals was mandatory, and that no ordinance, contract, or franchise «could be made or given, unless the provisions of the charter were complied with. No question is made but that a telephone company cannot occupy the city’s streets without a franchise.
Prior to the resolution accepting the proposed contract, the city ¡adopted chapter 452, p. 689, Laws 1907, authorizing the city to acquire, construct and operate public utilities. Section 2 grants power -In the following language:
“Every city of this state shall have the power to own, construct, •acquire, purchase, maintain and operate any public utility within its • corporate limits, and to lease the same, or any part of the same, to .any company incorporated under the laws of this state, for the purpose of operating such public utility for any period not longer than.*37 twenty years, on such terms and conditions as the city council shall deem for the best interests of the public.”
Then follow conditions and limitations and detailed provisions as-to what may be done.
Chapter 452, as we construe it, does not give the city authority to acquire a plant, or grant a franchise, unrestrained by the limitations of its charter.
The proposed contract gives the Tri-State Company authority to operate a telephone system in the city and to charge certain rates. We find no difficulty in holding the right intended to be granted by the contract to be a franchise. Whether the contract grants a franchise, or is merely a contract to construct and operate a telephone exchange, it is invalid, within the allegations of the complaint, because of a failure to comply with the provisions of the charter. The purpose of the charter is to encourage competition, to get a favorable bid for a construction for which it contracts, to get conditions favorable to itself in a franchise which is granted, or an adequate consideration for it, and to avoid the possible evils ■ suggested in the case of Tri-State Telephone & Telegraph Co. v. City of Thief River Falls, supra, 857. The contract is invalid and its execution should be enjoined if the plaintiff is in position to invoke the remedy.
The allegation of the complaint is that the plaintiff is a resident freeholder and taxpayer of the city and the owner in fee of property abutting upon one of the streets of the city. It is familiar law that a general taxpayer, or an owner of property abutting upon a street, cannot enjoin the prosecution of the improvement, or the use, or the obstruction, of a street, where no special injury comes to him. Guilford v. Minneapolis & St. Louis R. Co. 94 Minn. 108, 102 N. W. 365; Shaubut v. St. Paul & S. C. R. Co. 21 Minn. 502; Shero v. Carey, 35 Minn. 423, 29 N. W. 58; Long v. City of Minneapolis, 61 Minn. 46, 63 N. W. 174.
The situation presented here is different. The city, if the allega
The facts stated in the complaint make a cause of action.
Order reversed.
On dune 9, 1913, the following opinion was filed:
The respondent city of Thief Eiver Falls petitions the court for a re-argument and for a modification of the opinion filed on May 29, 1913.
The petition represents that pending the appeal the city acquired by purchase the telephone plant within its limits, and issued bonds to pay therefor, the proposition of acquiring the plant and issuing the bonds having first been submitted to the electors and carried.
The opinion states that chapter 452, p. 689, Laws of 1907, does not give the city authority “to acquire a plant,” unrestrained by certain provisions of the charter to which attention was called. The question of authority of the city to acquire an existing plant was not involved in the action and the court did not intend to hold that, upon authority from the electors, it could not do so. The statement in the •opinion referred to was an inadvertence, and is eliminated.
With this modification of the opinion, the application for rehearing is denied.
[See correction on page 38, infra].
