145 F. 602 | 6th Cir. | 1906
The bill in this case was filed in the chancery court of Shelby county, Tennessee. The cause was removed on the ground of diverse citizenship of the parties by the Postal Telegraph Cable Company from that court into the United States Circuit Court for the Western District of Tennessee, where the defendants demurred to the bill. The latter court sustained the demurrer and dismissed the bill. The object of the suit was to enforce certain ordinances of the city of Memphis, passed December 20, 1891, and January 28, 1902, respectively, requiring the payment of rentals by telegraph companies operating in, and occupying the streets and other public places in the city with its poles and wires, and declaring that a failure to make payment of the rentals within a specified time should operate as a revocation of the license to use and occupy the streets. The rental required by the first of the ordinances was fixed at $2 per annum for each pole erected by the company, and that required by the ordinance of 1902 was fixed at $3. The bill alleges that the defendant had used and occupied with its poles and wires the streets of the city, and that payment of the rentals for the years from 1891 to 1902, inclusive of those years, amounting to $1,772, had been demanded of the company and refused, and the bill prayed for a decree for the payment of the rentals, or that the rights of the defendant in the streets be decreed forfeited, and that its occupation thereof should cease and determine, and for such other general and special relief as to the court might seem fit and proper. A statute of Tennessee authorizes the filing of a bill in equity to recover .such charges as those here involved, and the question occurred to us upon the argument whether on the removal of the cause into the Circuit Court of the United States it should not have been assigned to its law docket on the theory that the suit was for a money demand. As respects the amount involved, the petition, which is sworn to, states that the value of the matter in controversy is more than $2,000, which may well be. The bill involves more than a money demand and asks, in a certain contingency, a decree ousting the telegraph company from the streets, a species of relief which could not be had at law. Moreover, . no question as to the propriety of the exercise of the jurisdiction of a court of equity in the case lias at any time been raised in the court below or in this court and the substantial question involved in the controversy
“(1) It appears from the said'bill that the pole rental sought to be recovered is demanded by the city of Memphis, the plaintiff, by virtue of an ordinance of said city without any authority therefor from the state of Tennessee. (2) The control of streets and highways in the state of Tennessee rests in the said state and the bill fails to show any authority from the state to the plaintiff for exacting the rental sought to be recovered. (3) The city of Memphis, plaintiff, had no authority to enact the ordinance under which said pole rentals are demanded. (4) The said defendant further demurs to so much of said bill as seeks to recover for the period between December 20, 1804, and June 4, 1890, for that portion of said demand is barred' by the statute of limitations. (5) The charge sought to be collected is a tax and unconstitutional as in violation of the Constitution of Tennessee, and of the United States.”
The first three of these a.re all involved in the general question whether the city had lawful authority to impose this charge upon the defendant. The Legislature of Tennessee at its session in 1869-70 passed an act entitled “An act to reduce the charter of Memphis and the several acts amendatory thereof into one act, and to revise the same.” Chapter 26, p. 225, Acts Tenn. 1869-70. Section 1 of this act granted to the city the right “to own and hold property, real, personal and mixed;” and declared that “all right, title, and interest in, and to use, all real estate within the limits of the said city which may hereafter be dedicated, donated or granted to any public use shall be vested in the corporation of the city of Memphis for the said use” and “that the city council may do all other things as a natural person.” In 1879 the Legislature passed other acts relating to the power of the city. Section 4, c. 10, p. 14, of. the acts of that year. “The public buildings, squares, promenades, wharfs, streets, alleys, parks, and fire engines — and all other property real and personal hitherto used by said corporation for municipal purposes are hereby transferred to the custody and control-of the state, to remain public property as it has always been, for the uses to which said property has hitherto been applied.” Then by section 3 of the following chapter (chapter 11, page 16), the city of Memphis is given power “to repair and keep in repair, streets, sidewalks, and other public grounds and places in the taxing district; to open and widen streets, to change the .location or close the same and to lay off new streets and alleys when necessary; and to have and exercise entire control over all streets and other public property of the taxing district.” And by section 14 (page 25) of the same chapter it is declared “that the fire engines (and equipment), engine houses, public buildings, public grounds, parks, promenades, wharves, streets, alleys * * * and all other property, real and personal, hitherto used by such corporations for purposes of govern-
It is seen that by the act of 1879 “the entire control” of the streets was granted by the Legislature to the city of Memphis. And we think that for reasons hereafter noted this grant of power included the power to demand and receive compensation for facilities afforded for a use and occupation not enjoyed by the general public. But it is claimed by the defendant that this grant of authority was superseded and rendered null so far as telegraph and telephone companies are concerned by the act of 1885, p. 120, c. 66, the first section of which provides that any such company “may construct, operate and maintain such telegraph, telephone or other lines necessary for the speedy transmission of intelligence along and over the public highways and streets of the cities and towns of this slate, or across and under the waters and over any lands or public works belonging to this state.” Our attention is called to the fact that in the prior statute (Millikeu & V. Code, § 1535), relating to the same subject, such companies were granted this privilege “ free of charge” as expressed therein, while in the act of 1885 these words were omitted. It is contended by the city that the Legislature by the act of 1885, which is a general statute, did not intend to resume the power of control of its streets which it had given to the city of Memphis by the act of 1869-70, and that the general law operates only as a permission, to exercise in the streets of Memphis the franchises granted to telegraph companies subject to the control which it had already granted to the city. We think that this contention should be sustained, first, upon the-ground of the familiar rule of construction that a statute general in its terms will not repeal by implication a particular statute relating to some particular matter or locality unless the intention of the Legislature to repeal the special act shall plainly appear. We had occasion to consider this subject with special attention in Guthrie v. Sparks, 131 Fed. 443, 65 C. C. A. 427, where we said:
“The general rule is that an act which relates to a particular subject is not. repealed by a later one which is general in its terms, but would include the particular case if that were not already provided for. The exception to this rule is that, if it plainly appears that the later general statute was intended to cover the particular case, and hold sway in place of the former act. the latter must be regarded as repealed by Implication. But as repeals by implication are not favored the intent to repeal must plainly appear.”
And we referred to several cases in the Supreme Court in support of this statement. In Sutherland on Statutory Construction (2d Ld.) § 275, it is said that:
“Unless there is a plain indication of an intent that the general Act shall repeal the other, it will continue to have effect, and the general words with which it conflicts will be restrained and modified accordingly.”
This statement has a peculiar adaptation to the case before us. Again, there are certain special reasons for thinking that the Legislature. could not have intended to displace the “entire control” of the streets which it had committed to the city. No one doubts, we sup
It is argued that this charge is a tax, and that the city of Memphis is not empowered to levy a tax not specified in its charter. But although such charges as these are sometimes called “taxes,” they are not such as are generally meant in constitutions and statutes by that term. But by whatever name called, the power to impose them was given to the city by the grant of “entire control” over its streets. If ihere is a burden imposed upon abutting owners by the structures of the telegraph company, that is a matter between those parties, and is irrelevant to the subject of the present controversy.
The fifth ground of demurrer is that the charge sought to be collected is “in violation of the Constitution of Tennessee and of the United States.” But what provision of either of those instruments this charge infringed is not pointed out, and we are unable to apprehend what it may be, unless it is that a supposed contract was created between the state and the telegraph company by the act of 1885 and the action of the telegraph company thereunder, which is impaired by the city of Memphis in imposing this charge. But for the reasons stated we think that upon the proper construction of the act of 1885 the state did not propose to contract for an immunity to the telegraph company for charges of this character. As this appeal brings here only the questions raised by the demurrer we deal with nothing else.
The decree of the court, below is reversed, with costs, except as to that part of the bill which seeks to recover the annual rental charge falling due December 20, 1895, as to which it is affirmed.