72 Miss. 910 | Miss. | 1895
delivered the opinion of the court.
The ground upon which the ordinance of the city of St. Louis, of which the one in this case is said to be a copy, is placed in 148 U. S., 92, and 149 U. S., 465, is that the city of St. Louis is the absolute owner of the fee in its streets, and the charter powers of the city are ‘' self-appointed. ” It is expressly declared that St. Louis occupies ‘ ‘ a unique position. It does not, like most cities, derive its powers by grant from the legislature, but it framed its own charter under express authority from the people of the state, given in the constitu
The legislature, by the act of 1886 (Laws, p. 93, § 1), provided ‘ ‘ that any telegraph company chartered by the laws of this or any other state of the United States, shall, upon making-due compensation, as hereinafter provided, have the right to construct, maintain, and operate telegraph lines . . on, across and along all streets,” . . etc.; provided, that “there shall be no interference with the ordinary use of such streets, ’ ’ etc., or with ‘' the convenience of any landowner-more than may be unavoidable. ’ ’ The following sections provide for compensation to turnpike and railroad companies, and private owners, for the use and occupation of their “ways,” “structures” or lands. No compensation was provided for cities in case their streets should be used, but the use and occupation of so much of the streets of cities as may be reasonably needed for the construction and maintenance of telegraph poles and telegraph lines, is expressly authorized without compensa
It is to be noted that this is not a tax. The license is a mere permission to enter the streets of the city, and so use and occupy them, without paying the damages usually assessed and paid, whore the right of eminent domain is used for condemning rights of way in streets, etc. It is a permissive statute — what it grants is a mere license, revocable by the state. 148 U. S., 102. It was not intended to exempt the appellee from the ' ‘ ordinary burdens of taxation. ’ ’ But this is not a tax, and ’the scheme for the taxation of telegraph companies is elsewhere fully provided. Code 1892, §§ 3885, 3880. And this scheme is directed to be so arranged that ‘' each municipality shall re
The act conferring the charter powers, it will be noted, was passed prior to the act of 1886 — April 9, 1874. We have nothing to-do with the.wisdom of the act of 1886, doubtless passed at the instance of telegraph and telephone companies, but under its provisions feel constrained to affirm the judgment. See Dil. Mun. Corp., 4th ed., § 701, et seq.; People v. Kerr, 27 N. Y., 188; Meriwether v. Garrett, 102 U. S., 472; 15 Am. & Eng. Enc. L., p. 988, and authorities cited. We are not to be understood as denying or restricting the power of the city to regulate the use of its streets within legal limits. See Elliott on Roads and Streets, pp. 332, 333. This is not an ordinance regulating the use of its wires and poles by the company, nor the use of the streets by the company in the occupation of them by its poles, but one exacting from the company a certain, sum as rent, pure and simple, for the identical entry upon and occupation of the streets by the company with its poles, which it was authorized by the act of 1886, to make without compensation to the state or city, in the exercise of the right of eminent domain. The act, it will be observed, provides that such use of the streets must not interfere with their ordinary use as such.
In City of Clinton v. Railroad Co., 24 Iowa, 455, Dillon, C. J., speaking for the court, says: “By virtue of these charter provisions and this ownership of the fee, the city claims that it has the exclusive control of the streets, and, therefore, it may consent to or prohibit, as by its common council it shall deem best for the public interest, the use of its streets for railway purposes, and that the courts cannot interfere with or control the decision of the. common council respecting this matter, whatever that decision may be. If these were all the provisions of the law applicable to this subject, the position of the city might, and, I think, would, be well taken.” He then proceeds to notice two other statutes of similar purport with
We refer specially to the entire reasoning in this case. Of course, the use of the streets by the telegraph company is “subject to all reasonable police and other regulations,” in Judge Dillon’s language in another part of this opinion; and as we have shown, no question of taxation is here involved, nor any private rights of any “ landowner.”
The case of Donnaher v. State, 8 Smed. & M., 649, though not referred to by counsel, has not escaped our careful attention. We are disposed to think that the decision, in that case, may possibly be upheld on the ground that, as urged by the distinguished counsel for appellee, the late Judge William Yerger, the charter of the railroad company expressly stipulated that the company could not make its road ' ' so as to interfere with the passage of any of the public streets of the town;” from which it might have been argued, as he did argue, that the tracks could not be laid in the streets at all, so far as the railroad’s charter power to do so was concerned. It would seem that the court, however, went rather on the ground that, as stated in the opinion, “the statute of 1823 reserved to the legislature the right to dispose of the entire two sections of land, designated by the commissioners to locate the seat of government, except the streets, ’' etc., and hence, that ' ' this vested the title to the streets in the corporation of the city, and de
Affirmed.