166 Iowa 226 | Iowa | 1914
I. The plaintiff as a telephone company desired entrance into the incorporated town of Vail that it might, as claimed by it, make connection between different of its lines extending from the north and south sides of the town into adjacent country, and thereby be better enabled to render service to its subscribers. Having received no permission to occupy the streets for that purpose, other than a claimed right under an act of the city council to which we will later refer, upon its attempt to so use the streets by planting its poles and stringing its wires, the officers of the town took steps to remove them, upon which, based upon the petition of appellant asking such relief, a temporary injunction was issued. The judgment of the trial court following such action was based upon the pleadings in sustaining a demurrer of the plaintiff to the answer and amendment. Upon appeal to this court the ruling and judgment of the trial court was reversed. Following such action, the plaintiff filed its amended and substituted and supplemental petition, to which an answer and cross-petition were filed, and also a motion to strike certain paragraphs from the
II. On the former appeal, opinion was handed down by this court sustaining the action of the trial court, discussing fully all questions which had been raised. A petition for rehearing was granted, and thereafter in an opinion by the court it was stated that the question presented was whether a telephone company has a right, under the law of the state, to construct and operate its lines in and through the streets of a city or town, and maintain a local system for the transaction of general telephone business in such city or town, without procuring from the municipal authorities a license for the use of the streets. It was then held that it had not such right, under the authority of Farmers’ Telephone Company of Quinby v. Town of Washta, decided by this court after the original hearing in this case, and reported in 157 Iowa, 447.
III. In the present appeal it is claimed that, by reason of the facts pleaded in the amended and substituted petition, there are presented conditions not arising under the former
IV. Although the amended and substituted and supplemental petition in greater detail pleads the cause of action as presented in the original petition, yet a careful comparison of
V. The decision upon the former appeal was rested upon the rule announced in Farmers’ Telephone Company v. Washta, supra. That case fully considered the questions raised
That the Legislature has the right to control and regulate the use or manner of use of the highways of the state is generally recognized and nowhere denied. And it also is equally
It is well settled that telegraph and telephone companies are subject to all regulations falling properly within the police power of the state or of a municipal corporation. State v. W.
The few cases we have cited from among the many to which we have been referred are illustrative of the principle which we hold to be controlling here — that in the exercise of the police power the grant of privileges to one to the possible exclusion of others, or the refusal of a privilege to exercise a calling or employment lawful in itself, is not necessarily a denial of a right or repugnant to the Constitution — and, following the rule so often announced by this court that a law will not be declared unconstitutional unless it appears clearly to be within the prohibition of the organic law, state or federal, we conclude that this objection of appellant cannot be upheld.
VII. Nor do we think there is any merit in the contention of the appellant that the town of Vail had passed no ordinance
We conclude that the ruling of the trial court was correct, and it is — Affirmed.