34 Mont. 67 | Mont. | 1906
delivered the opinion of the court.
In April, 1905, this appellant, W. H. Crumb, made demand upon the mayor and city council of the city of Helena that they designate the places for the erection of poles and fixtures in and upon the streets, avenues, and alleys of that city for
Section 14 of Article XV of the Constitution of this state provides: “Any association, or corporation, or the lessees, or managers thereof, organized for the purpose, or any individual, shall have the right to construct or maintain lines of telegraph or telephone within this state, and connect the same with other lines; and the legislative assembly shall by general law of uniform operation provide reasonable regulations to give full effect to this section.” Pursuant to this provision of the Constitution, section 1000 of the Civil Code was enacted. That section reads as follows: “A telegraph or telephone corporation, or a person, is hereby authorized to construct such telegraph or telephone line or lines from point to point, along and upon any of the public roads, by the erection of necessary fixtures, including posts, piers and abutments, necessary for the wires; but the same shall not incommode the public in the use of said roads or highways.”
In 1905 the legislature amended this section by enlarging its provisions so as to make them applicable to electric light and electric power lines also, and adding this proviso: “Provided, however, that the provisions of this Act shall not apply to public roads and highways within the limits of incorporated cities or towns.” (Session Laws, 1905, p. 122, Chapter LY.)
The question presented for determination here is: Does the Act of 1905 violate the mandate of the Constitution contained in section 14, Article XV, above? This section of the Constitution is not self-executing. Legislation must be had to make the right granted effective. If the legislature failed or refused to enact any measure on the subject at all, then
We may concede without discussion, for the purposes of this ease, that it is a general law; that it is so far of uniform operation as not to violate the uniformity clause,. and that, so far as it goes, its regulations are reasonable. But does it give, or tend to give, full effect or any practical effect to the grant contained in section 14 of Article XV above? That grant was not intended merely to enable telegraph and telephone lines to be constructed and maintained for the purpose of ornamenting railroad lines or public roads in county districts, but to enable the telegraph and telephone business, as such, to be conducted in this state. The Act of 1905 provides that the public roads and highways of the state may be utilized for the erection of necessary posts, piers and abutments for the stringing of wires, provided they are so used as not to interfere with or endanger the public in their use, but that this privilege shall only extend to public roads and highways outr side of incorporated cities and towns.
However, counsel for respondents contends that this Act is fully supplemented by subdivision 43 of section 4800 of the Political Code, as amended by an Act of the Fifth Legislative Assembly, approved March 8, 1897 (Session Laws, 1897, p. 203), which reads as follows: “The city or town council has
A statute which provides that a corporation or individual, seeking to erect and maintain a line of telephone and engage in the telephone business, may erect and maintain such telephone line along the public roads and highways outside of incorporated cities and towns only, and which leaves the cities and towns free to refuse to enact legislation upon the subject and thereby prevent such business being conducted within those municipalities, does not give full effect, or any practical effect, to the grant contained in section 14, Article XV, above. In the Red Lodge Case (State ex rel. Telephone Co. v. Mayor, 30 Mont. 338, 76 Pac. 758) it is said: “If the subordinate divisions of the state are vested with the authority either of preventing the construction of these lines, or of imposing restric-' tions which will have that effect, then the legislature has not
When the constitutional provision above was adopted, it was common knowledge that practically the only use of the telephone was for commercial purposes, and that the great bulk of that business originated in, if it was not absolutely confined to, incorporated cities and towns, and, in order to secure the business and accommodate the public, the terminals for long distance fines and the local exchanges must of necessity be located in the business centers, where, as a matter of fact, they have always been located, and the grant was intended to enable a corporation or individual seeking to do so, to carry on the telephone business as it was done at the time the provision was adopted. To confine a telephone company or an individual operating a telephone fine to country districts alone would defeat the very purpose of the grant. (State ex rel. Tel. Co. v. Mayor, 30 Mont. 338, 76 Pac. 758; Chamberlain v. Iowa Tel.Co., 119 Iowa, 619, 93 N. W. 596.)
The command in section 14, Article XY, of the Constitution, above, to the legislature, is to pass a general law of uniform operation, with reasonable provisions, and which will enable the telephone business to be conducted in this state as it was generally conducted throughout the country in 1889;. that is, access to the business centers — the cities and towns — must be granted, and any law which falls short of this does not comply with the constitutional provision above. Nothing said herein renders inoperative subdivision 43 of section 4800 above, as amended; for after the legislature has complied with the command of section 14, Article XY of the Constitution, by the. enactment of such legislation as is there contemplated, it may then, doubtless, authorize cities and towns to make such reasonable rules and regulations for the regulation of such business as may be considered necessary. (Red Lodge Case, above, at page 346.)
The judgment is reversed, and the cause remanded to the district court, with directions to issue the writ of mandate as prayed for.
Reversed and remanded.