109 N.Y.S. 381 | N.Y. App. Div. | 1908
Lead Opinion
The sole question involved in this controversy is whether the plaintiff may charge the defendant for telephone service at a greater rate than that for which it agreed to furnish the same,
The first inquiry which naturally presents itself is: What rights did the telephone company receive from the State under the law by which it was created, and what additional rights, if any, did it receive from the city of Rochester? Article 8 of the Transportation Corporations Law (Laws of 1890, chap. 566) provides for organizing telephone companies. By section 102 of that article it is provided that: “ Such corporation may erect, construct and hiaintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways; and through, across or under any of the waters within the limits of this State, and upon, through or over any other land, subject to the right of the owners thereof to full compensation for the same. * * * ” All of the corporations, for the organization of which the Transportation Corporations Law provides, such as pipe line, gas and electric light companies, water works and roads and bridge corporations, except telegraph and telephone corporations, are required by . the provisions of that law to obtain the consent of the local authorities to occupy the streets and highways (Transp. Corp. Law, §§ 45, 46, 61, 80, 82, 122, 123), and the same is true of the steam and street railroad corporations. (Railroad Law [Laws of 1890, chap. 565], §§ 11, 91.)
While it is strictly true, as contended on behalf of plaintiff, that the franchise of this telephone company, giving it the right to carry on its business and construct and maintain its lines in the public roads, streets and highways and the waters within the State, is a right which comes directly from the State, independent of any municipal grant (Barhite v. Home Telephone Co., 50 App. Div. 25; City of Rochester v. Bell Telephone Co., 52 id. 6; Village of Carthage v. Central New York Telephone Co., 185 N. Y. 448), I think in this case the telephone company obtained additional rights and privileges from the city. Hot only did the city assume to give to the telephone company the right to construct its telephone system in the public streets and highways of the city, but also granted it that right in, over and under the squares, parks, aqueducts and public places in the city, and to construct conduits,
It is contended that, although the provisions of the Transportation Corporations Law authorize telephone .corporations created under that law to construct and maintain their lines under as well as upon and over the public streets and highways, the provisions of the act requiring the consent of the local authorities, to construct and lay them under ground 'is not inconsistent therewith. . However that may be, it can hardly be claimed that a telephone company has the right to construct conduits and subways through the squares, parks and other public places, not within the streets of the city, without the consent of the municipal authorities.
This is not a case where a telephone, company is kept from using the public streets in a city by the exaction of the local authorities that the company limit its rates as a condition, for such use, which it is unwilling to do, nor where a municipality has undertaken to regulate the rates for telephone service after the telephone company has obtained its rights and is doing business in- the city without asking or obtaining further privileges from the city. In the absence of any statute conferring such power it has none, and I think it may well be doubted that it has this right under the power conferred upon ( the city to regulate the use of the streets for telephone purposes. (Joyce Elect. Law, § 525, and cases- there cited.) That, however, is not this case. Here the telephone company voluntarily entered
Wholly independent of the question as to whether, under the right given to the city to regulate and control the erection of telephone poles and wires in its streets, it can exact that the telephone corporation limit its telephone rates, I think the telephone company acquired and now uses and enjoys rights and privileges from the city under the agreement, beyond what it would have had but for such agreement. At all events, as has been stated, under the principles of estoppel, it should not now be heard to question the authority of the city to make the agreement and grant the rights, as the city has assumed to do, taken advantage • of by the telephone company.
Although the defendant was not a party to the contract, he is one of the persons for whose benefit the provision contained in the contract limiting the rates was made, and may insist upon its enforcement. (Simons Sons Co. v. Maryland Telephone Co., supra; Gaedeke v. Staten Island Midland R. R. Co., supra.)
Judgment should be directed adjudging that the defendant is entitled to telephone service at the rate of forty-eight dollars per annum, as limited in the agreement of April 14, 1899, and that the plaintiff is entitled to recover of the defendant for the quarter services now due only the sum of twelve -dollars, without costs to either party.
All concurred ; McLennan, P. J., concurring in a separate opinion, except Williams, J., who dissented upon the grounds" that t"he agreement, so far as it assumed to fix telephone rates, Was invalid,was without consideration and was not' binding" on the present telephone company.
Trans. Corp. Law, §g 61, 80, 82, and Railroad Law, § 91, have been several times amended.— [Rep.
See Revised Charter (Laws of 1907, chap. 755), § 86, subd. 2.— [Rep.
Concurrence Opinion
I concur in the result reached by Brother Kruse in this case, but think we should place our decision upon the broader proposition that where the Legislature grants a franchise to a telephone company, as we will assume was done in this case, to construct, maintain and operate its system in and through a municipality, but where, by such franchise of the State, authority is reserved to the municipality to “regulate and control the erection, construction, laying, stringing, maintaining and removing of all wires, cables, poles, conduits and subways, upon, over and under the streets, avenues, lanes, squares, parks, bridges, aqueducts and public places within said city,” such reserved authority entitles the municipality to prescribe the rates which may be charged to the individual residents of such municipality for telephone service, as a consideration for the regulation which it may make.
Concededly, under the power reserved to the city of Rochester, it was competent for it to say that the poles and wrires of the plaintiff should be erected and strung upon certain streets of said city rather than upon other of its streets which might be more desirable and advantageous to the plaintiff in the construction of its system. The municipality had a right to require in certain contingencies that the wires of the plaintiff should be conducted through conduits rather than over the surface of the streets. Presumably to give greater facilities and advantages to the plaintiff corporation, such municipality permitted it to select the streets which it should occupy and determined the manner of occupation, but on the condition that the citizens of the municipality should be entitled to have telephone service at a maximum rate of forty-eight dollars per year. An illustration which would seem to settle the principle involved must present itself to any one: the State grants a franchise to a telephone company to erect, maintain and operate its system in the city of Rochester, but reserves to such city the right to dictate how and in what manner such franchise shall be exercised. The company, conceiving it to be most advantageous to it, desires to erect its poles and string its wires on Main street for its entire length. The municipality contends that that is unnecessary ; that such demand imposes upon such street an unnecessary burden, and insists that the telephone corporation must go upon a parallel street and supply Main
My notion is that it ought to be held that where a telephone company agrees with full knowledge of all the facts that it will serve the inhabitants at a certain price per telephone, in' consideration of the regulations imposed by such municipality in answer to the telephone company’s request, such undertaking by the telephone com-
Judgment directed adjudging that the defendant is entitled to telephone service at the rate of forty-eight dollars per annum, as limited in the agreement of April 14, 1899, and that the plaintiff is entitled to recover of the defendant for the quarter services now due only the sum of twelve dollars, without costs to either party.