Postal Telegraph Cable Co. v. Mayor of Baltimore, 79 Md. 502

Postal Telegraph Cable Co. v. Mayor of Baltimore

79 Md. 502 | Md. | 1894

Bryan, J.,

delivered the opinion of the Court.

On the twentieth of April, 1893, the Mayor, and City Council of Baltimore passed an ordinance which imposed a tax of two dollars on each telegraph, telephone, electric-light or other pole, which should be used in any of the streets, lanes or alleys of the city. But the ordinance excepted trolley poles, which were used exclusively for stringing thereon wires for use in the propulsion of street passenger cars by electricity. The Postal Telegraph Cable Company used and maintained five hundred and nine tele*509graph, poles in the public streets of Baltimore, but refused to pay the tax on them. A suit was brought by the Mayor and City Council to recover the amount due according to the terms of the ordinance. The Telegraph Company, instead of pleading to the declaration, filed an answer, composed of twenty-five sections. The plaintiff demurred, and, by consent of counsel, a pro forma judgment was entered, sustaining the demurrer, and determining that the plaintiff should recover the amount of the tax.

The answer filed by the defendant seems to be framed on the model of equity proceedings. Both in form and substance it is in absolute disregard of the practice prevailing in this State, and was necessarily held bad on demurrer. But as the object of this suit is to determine the validity of the ordinance in question, we shall express our opinion npon it, without regard to errors in practice and procedure. We shall assume (as is undoubtedly the case) that the defendant is a corporation under the laws of Yew York; and that it is engaged in operating telegraph lines over the post roads of several States of the Union, by making telegraphic communications for commercial and other purposes; and that it has accepted the provisions of the Act of Congress of July, 1866 (title 65 of U. S. Revised Statutes), relating to the occupancy of post roads; and that it is entitled to the privileges conferred by that Act. It has been decided by the Supreme Court of the United States that telegraphic communication between the different States is a species of interstate commerce, and that it is, therefore, within the control of Congress. The telegraph companies which have accepted the provisions of the Act of 1866 are entitled to use the post roads of the United States for the operation of their lines. The streets of the city of Baltimore are post roads, and in ibis capacity are subject to' this Act of Congress. But it cannot be supposed that any power is conferred upon a telegraph company to use the streets without compensation. The Supreme Court *510has decided what the right to use a post road means. It has said that this Act “gives no foreign corporation the right to enter upon private property without the consent of the owner and erect the necessary structures for its business; but it does provide, that whenever the consent of the owner is obtained, no State legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges. * * These (meaning post roads) are all within the dominion of the national government to the extent of the national powers, and are, therefore, subject to legitimate congressional regulation. No question arises as to the authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned,, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with. Only national privileges are granted.” Pensacola Telegraph Company vs. Western Union Telegraph Company, 96 United States, 1. It is not contended on die part of die plaintiff that any State authority can prevent or hinder interstate commerce, or that it can tax the receipts derived from it, or that it can require a license for carrying on the business, or the payment of a sum of money for such license. The city ordinance does not exclude the telegraph company from the use of the streets as post roads; on the contrary, it recognizes such use, and exacts compensation therefor. The question arises whether such compensation can be lawfully demanded. The power of the Mayor and City Council of Baltimore over the streets cannot be regarded as within the region of debate. By legislative enactment, by long continued usage, and by repeated decisions of ora Courts, it has been determined that it has full and' complete con*511trol over the streets and highways of the city. The Act of 1890, chapter 370, declared that it should have power to regulate the use of the streets by telegraph, telephone, electric-light and other wires and poles; and that it might require the wires to be placed under ground. It may permit the erection of poles, determine where they may be placed, and .upon wdiat terms they may be used. The erection of a pole is the appropriation of a portion of a street, and the entire exclusion of the public from the use of it. It is necessarily to some extent an obstruction, and under some circumstances it may be a great public inconvenience. The Telegraph Company has not the semblance of a right to appropriate any portion- of the streets in this way. It may be suggested that it might acquire such right by condemnation. We shall not discuss this question. The assertion of such a pretension would be regarded as offensive in the highest degree, and would call forth great opposition. If the question should ever be presented to the Courts, wTe trust that it may be temperately and dispassionately discussed, and wisely and justly decided. As the matter now stands, the consent of the Mayor and City Council must be obtained for the use of the poles. It would not be right to clog this consent with unjust and unreasonable conditions, such as would manifest a purpose to prevent the transaction of the interstate business of the Telegraph Company, or to impede, oppress and embarrass it, or to make a discrimination against it in favor of some rival company. The privilege of using the poles is granted on the payment of the sum of two dollars per annum for each pole. This is less than seventeen cents a month. Baltimore is a large and populous city. In the localities desirable for telegraph offices the sidewalks are frequently thronged by large numbers of people, and the driveways so closely blocked with vehicles, that it is a matter of peril and difficulty to cross from one side of the street to the other. In many other parts of the city the *512crowding of the streets is sometimes very great. It is a matter of much importance to preserve space for public convenience. If we take as a standard the rental value of ground fronting on public streets, we will see that seventeen cents a month for the space covered by a telegraph pole is a very small fraction of the value of its occupation; and it is a vastly smaller fraction of the compensation due for the inconvenience caused to occupiers of houses in the vicinity, and to persons using the streets in the ordinary methods of travel. The Mayor and City Council, however, with a wise and liberal forecast have foréborne to place burdens on industries and enterprises, which accompany and increase the growth and prosperity of the city. In our opinion the tax on these poles is reasonable and moderate. We, of course, are conclusively bound by the decision of the Supreme Court in St. Louis vs. Western Union Telegraph Company, 148 United States, 92. In that case the validity of a tax was in question, which had been imposed by the city of St. Louis on telegraph poles of the Western Union Company. The Court overruled the suggestion that the Act of Congress which granted the use of the post roads, conferred onj telegraph companies the unrestricted right to appropriate public or private property; and affirmed that the franchise or privilege was to be exercised in subordination to public and private rights. It held that the tax was valid; and said, in speaking of the public streets: “While for purposes of travel and common use they are open to the citizens of every State alike, and no State can by its legislation deprive the citizens of another State of such common use, yet when an appropriation of any part of this public property to an exclusive use is sought, whether by a citizen or corporation of the same or another State, or a corporation of the national government, it is within the competency of the State, representing the sovereignty of that local public, to exact for its benefit compensation for this exclusive appropriation. It matters *513not for what that exclusive appropriation is taken; whether for steam railroads or street railroads, telegraphs or telephones; the State may, if it chooses, exact from the party or corporation given such exclusive use pecuniary compensation to the general public for being deprived of the common use of the portion thus appropriated.” The tax was five dollars per annum for each pole, and it was maintained by the Telegraph Company that it was unreasonable, unjust and excessive. As the judgment in favor of the Telegraph Company was reversed on other grounds, the Court said that' the question might be passed for further investigation on the new trial. It also said: “Prima facie, an ordinance like that is reasonable. The Court cannot assume that such a charge is excessive, and so excessive as to make the ordinance unreasonable and void; for, as applied in certain cases, a like charge for so much appropriation of the streets may be reasonable.” On a motion for reargument, the Court reaffirms the validity of the tax. In speaking of the power to regulate the use of the streets, which was vested in the city of St. Louis under its charter, it said: “If it should see fit to construct an expensive boulevard in the city, and then limit the use to vehicles of a certain kind, or exact a toll from all who use it, would that be other than a regulation of the use? And so it is only a matter of regulation of use when the city grants to the telegraph company the right to use exclusively a portion of the street, on condition of contributing something towards the expense it has been to, in opening and improving the street. Unless, therefore, the telegraph company has some superior right which excludes it from subjection to this control on the part of the city over the streets, it would seem that the power to require payment of some' reasonable sum, for the exclusive use of a portion of the streets, was within the grant of power to regulate the use. That the company gets no such right from the general government is shown by the opinion heretofore deliv*514ered, nor has it any such from the State.” St. Louis vs. Western Union Telegraph Co., 149 U. S., 470.

(Decided 21st June, 1894.)

The judgment below must be affirmed.

Judgment affirmed.