Missouri River Telephone Co. v. City of Mitchell

22 S.D. 191 | S.D. | 1908

HANEY, P. J.

This is an action to restrain the defendant from interfering with the construction and operation 'of a long distance telephone line within its limits, except -by reasonable regulation and control. The decision of the learned circuit court, containing numerous findings of fact, concludes as follows: “(1) That the action taken- by the defendant, the city of Mitchell, through its city -council, gave the plaintiff consent and privilege 'for the plaintiff to erect and -operate long-distance telephone line within said city, and that ;after isaid consent and privilege was given, by the said defendant -to the plaintiff, and the plaintiff had acted upon said consent and privilege by erecting said telephone- line and expending large sums of money therefor, the defendant ,'is without authority .of law to remove said' telephone line from said .city and prevent the plaintiff from operating the iisame according to the form and manner attempted by the defendant; (2) that the plaintiff is entitled to a judgment against the defendant permanently restraining the defendant from preventing the plaintiff from constructing, maintaining, and operating said line according to the consent and privilege which has been granted by the defendant bo the plaintiff, and the-plaintiff is entitled to' recover its costs and disbursements in this action, and that defendant’s counterclaim be dismissed.” After entry of judgment and notice of. intention to move for a new trial, tout before such motion was 'heard, the court, upon plaintiff’s application and upon notice to the defendant, amended its decision by adding to- the findings of fact the following : “The court further finds that the plaintiff in this - action, if the defendant be allowed to carry out Sts intention in debarring the plaintiff from operating its -said telephone line within .the said city of Mitchell,, will be financially damaged, and that it would be extremely difficult to ascertain the amount of the compensation which would afford the. plaintiff adequate relief for such damage, and the plaintiff as without remedy at law in the premises.”

Upon the trial of an issue of ...fact by the court, its decision must be given in writing. In giving the- decision, the facts found and -the conclusions must be separately stated. Rev. Code Civ. Proc. §§ 276, 277. . There should, of course, be a finding upon each material issue of fact; but the only conclusion required is the opinion of the court as to what relief either party is entitled to upon the facts established by ¡the pleadings and evidence. If 'the relief granted is warranted by, the established facts, it i's not material whether right reasons, or any reasons, are assign,ed., by the trial .court for granting it. The best form of decision by a trial judge is a statement of the facts (established by the pleadings and evidence, followed by the conclusion that upon the facts so found the plaintiff (or defendant, as ithe case may be) is entitled to judgment, specifying in general terms the ¡nature of the judgment. Whether, in the ca.sp at bar, it would be extremely difficult tp ascertain the amount of compensation which would afford adequate relief úf the' plaintiff was unlawfully prevented from continuing to operate its telephone in the'defendant city, whether'it had an adequate remedy- at law, and was therefore not entitled- to the relief demanded and granted, was a conclusion, of' law, depending upon the established material facts, and necessarily involved in' the decision'that plaintiff was entitled to a permanent injunction. The amendment was, therefore, wholly imihaterial, ánd not reversible error, even- if the court was without power to amend its decision by 'adding thereto' an inadvertently omitted finding: of fact — a proposition upon, which’no opinion'is expressed'.- ' ■■:■■■

The argument of appellant’s counsel in support of the contention that the facts found by the trial court do not sustain its conclusions of law is founded upon a misapprehension as to- the source of the plaintiff’s rights. Its franchise was derived from the state, not from the city. It is a corporation created by and existing under state laws. The nature and extent of its rights depend on the will of the Legislature, limited, so- far as this case is concerned, only by the provision of the state Constitution that no telephone line shall be constructed within the limits of any city without the consent of its local authorities. Const. S. D. art. io, § 3. While this provision limits the power of the state Legislature, it grants no legislative power to the municipal council. Though the Legislature may not authorize the construction of a telephone line in any city without the latter’s Consent, the city has no power to impose any conditions or establish any regulations other than those permitted by the Legislature. Adding to- the statute the constitutional provision regarding consent, the law applicable to the issue here involved is expressed in the following language: “There is hereby granted to- the owners of any telegraph or telephone lines operated in this state the right of way over lands and real property belonging to the state, and the right to use public grounds, streets, alleys and highways in this state, subject to control of the proper municipal authorities as to what grounds, streets, alleys or highways said lines shall run over or across, 'and the place the poles to support the wires are located. The right of way over- real property granted in this' act may be acquired in the 'same manner and by like . proceedings as provided for railroad ’ corporationsPro-vided, however, that no' telephone line shall be constructed within the limits of any city .without the consent of its local authorities. Rev. Civ. Code, § 554; Const. S. D. art. 10, § 3.

Assuming that the local authorities of the defendant city might have arbitrarily refused to admit the plaintiff, if consent to enter the city was given, the plaintiff was subject to municipal control only ns to what grounds, streets, alleys, and highways its line should occupy, and as to what place its poles should .be located. Consent having been given, the right of the city to control the telephone company results from the statute, and not from the ordinance, resolution, or action of the local authorities by which the consent is manifested; and consent once given cannot be. revoked. Appeal of City of Pittsburg, 115 Pa. 4, 7 Atl. 778; State v. Mayor, 49 N. J. Law, 303, 8 Atl. 123. The right of a telephone company to (construct its lines anywhere in the. state includes the right to enter any city with the consent of its local authorities, and when such consent has been obtained the company is subject only to such rules and regulations as the Legislature may prescribe or authorize the'council to prescribe. The right thus conferred upon-a telephone company by the state — its franchise — is,, of course, subject to control by the Legislature, which is prohibited.from making any irrevocable grant of that nature (Const. S. D. art. 6, § 12.) The. Legislature may. extend or restrict the powers-of cities with respect to these companies as its wisdom (may dictate; but no city can impose any conditions or enforce any regulations other than those authorized by the Legislature. And it is fortunate that such ■is the law; (the construction, operation, and management of telephone lines, especially long-distance dines, being matters in which •all -the inhabitant's of the state have a constantly increasing interest. So the only real issue in this 'case is whether the local authorities of the defendant city consented to the construction of plaintiff’s line within the city limits.

Touching this issue the material facts are undisputed. In .May, 1904, plaintiff ■ applied for permission to construct and operate its lines in the defendant city. Pursuant to such application, at a special- -meeting of the council, on May 21, 1904, at which the mayor and six aldermen- wqre. present (the council being compqsed of the mayor and eight aldermen), an ordinance granting the desired permission upon conditions not material on this appeal, was presented an;d read the first time by unanimous consent of the members present. At a regular meeting on June 6, 1904, at \vhich all the members of the council were present, this ordinance received its second -reading and was put upon its final passage; seven aider-men. voting for and one against it. Having been approved by the mayor June 6, 1904, it was duly recorded and published. Immediately after its passage and approval the plaintiff, relying upon the permission therein granted, began, constructing a telephone line from Armour to- Mitchell, a 'distance of about 45 miles, and prior to any-other action by the -city had erected telephone poles and strung wires thereon for a distance o-f about 25 miles. On July 28, 1904, another ordinance granting plaintiff the same privilege with -somewhat different conditions, and repealing the former one, was passed and approved without notice to- the plaintiff. In November, 1904, the plaintiff applied to the city, through its regularly constituted -committee, for -directions as to the location of it's poles, pursuant to which application the committee, in writing, fixed such location and delivered a copy of the (writing to the plaintiff. Immediately after receiving these directions • the plaintiff erected a line of poles along the route so designated by the committee, and brought to the city a complete equipment for establishing & long-distance booth therein; the plaintiff’s line at this time having been constructed from Armour to Mitchell. On May 1, 1905, still another ordinance was passed and approved, purporting to repeal the one last above mentioned, and defendant’s street and alley committee was authorized to remove plaintiff’s poles from the streets and alleys of the city. Notice of this action having been given the plaintiff, the present action was begun.

No particular mode of manifesting municipal consent to the construction of a telephone line i-s prescribed by the Constitution or statutes. So far as the Constitution is concerned, such consent may be either express or implied. Where a municipal corporation has power to-' act, it may (estop itself'by Its conduct as well as a natural person. 2o Am. & Eng. Ency. Law, 1182. And a municipality may be estopped to deny the validity of an ordinance which it has led others to believe -was: legally adopted. People v. Maxon, 139 Ill. 306, 28 N. E. 1074. The city council having authority to consent to the construction of plaintiffs line, and no particular mode of expressing such consent having been prescribed, it is clear that the action taken by the council at the regular meeting on June 6, 1904, entitled the plaintiff to enter the defendant city. Assuming, however, that consent could only be given by the adoption of an ordinance, At is equally clear that plaintiff cannot be deprived of ¡the rights resulting from the passage and approval of the first ordinance, and it is wholly immaterial what action was subsequently taken by the city. As heretofore stated, consent having been once given and acted upon by the plaintiff, it could not be revoked, and the municipality could exercise no control over the plaintiff other than that permitted by the state law, which certainly does not authorize the council to exclude the plaintiff from the city.

The only objection to !the first ordinance is the fact that it received its first reading at a special meeting, notice of which, it i/s alleged, was not given to the absent members, and which was held pursuant to an ordinance relating to special meetings tauder which the council had acted for' several years, but which, it is claimed, was never legally adopted. -'Conceding these irregularities to have existed, the city is not in Iposition to assert them to the manifest injury of the plaintiff. It is estopped from doing so- by the conduct of its council at the regular meeting, when the first ordinance was passed, all the (aldermen being present; by the conduct of its mayor in indorsing his approvel, thereby certifying under the sanction of his official oath that the ordinance was legally adopted; by the conduct of its committee in designating the location of the plaintiffis poles; and by the publication of the ordinance. That the plaintiff in 'good faith expended large sums of money, relying upon the validity of the ordinance, 'is undisputed. That the municipal authorities intended to consent to the construction of the plaintiff’s line is established beyond the possibility of a doubt. The mayor and council were authorized to give the required consent, they led the plaintiff to believe they had'given it, and by every rule of right and justice they should not now be permitted to avoid the consesquences of their action by asserting technical objections to- the method of their procedure.

The conclusions of ithe learned circuit court were clearly correct, and its- judgment must -be affirmed.

FULLER, J., takes no (part in this decision.