182 Ind. 102 | Ind. | 1914
This was an action by appellant, against appellees, the Board of Public Works of the city of Evansville, and the mayor and common council of the city, in which appellant sought an order of mandate directing appellees to grant appellant the right to construct and operate a telephone exchange in Evansville.
The complaint avers that appellant is a corporation, organized in 1911, under the provisions of our statute, relating to the formation of telephone companies; that in 1906 the Cumberland Telephone and Telegraph Company was granted a franchise to construct a telephone plant in the city, and operate it for a period of 35 years, under the terms of a contract, which contract is copied in the complaint; that in January, 1912, appellant petitioned the board of works for a franchise, to construct and operate a telephone exchange in the city for the same term, and on the same conditions set forth in the contract with the Cumberland company, and, at the same time, presented to the board a written contract, containing the same provisions as those of the Cumberland company contract, and requested the board to execute the same; that the petition was denied, and thereupon appellant petitioned the mayor and council to demand of the board that it send the petition to the mayor and council for consideration, and that the board be required to grant appellant’s petition and execute the proposed con
Our statute (Acts 1911 p. 541, §1225 Burns 1914) provides that an action for mandate may be prosecuted “against any inferior tribunal, corporation, public or corporate officer or person to compel the performance of any act which the law specifically enjoins, or any duty resulting from any office, trust or station. ” It is appellant’s contention, that because of §23, Art. 1 of our Constitution, which prohibits the legislature from granting to any citizen or class of citizens a privilege, which, on the same terms, shall not equally belong to all citizens, the General Assembly is without power to enact any law that will directly or indirectly result in the creation of a monopoly in relation to the operation of a telephone exchange in any municipality of the State; that the facts averred here show the creation, by indirect means, of a monopoly of the telephone business of Evansville, in the control of the Cumberland company. In support of the proposition appellant cites Citizens Gas, etc., Co. v. Town of Elwood (1888), 114 Ind. 332, 16 N. E. 624, and other cases of like import. Appellees meet this contention with the proposition that the law vests certain discretionary power in municipal authorities, in relation to telephone franchises, and that courts
Subdivision 11 of §93 of the Municipal Corporations Act of 1905 confers on boards of public works, of cities of the first, second, third and fourth classes, the following authority: “To authorize telegraph, telephone, electric light, gas, water, steam, street ear, railroad or interurban companies to use any street, alley or public place in such city and erect necessary structures therein, to prescribe the terms and conditions of such use and to fix by contract the price to be charged to patrons: Provided, That such contract shall, in all eases be submitted by such board to the common council of such city and be approved by ordinance before the same shall take effect.” Acts 1905 p. 219, §8696 Burns 1914. Section 254 of the same act (§8939 Burns 1914) provides that any city or town may enter into a contract for supplying it and its inhabitants with water, light, telephone service, etc., and that it may provide in such contract the terms and conditions on which such services shall be furnished. The section provides that in cities having a board of public works, the contract shall be first agreed to by the board, and submitted to the council for approval, and authorizes any city or town to become a stockholder in a corporation organized to supply the city with any one of the enumerated conveniences or necessities. Previous to the adoption of the act of 1905, similar power was conferred on cities in relation to the furnishing of light. §4303 Burns 1894, Acts 1883 p. 85. The legislature has vested in the municipal authorities almost unlimited control of streets and alleys. §1946 Burns 1914, Acts 1905 p. ¡584, §78; subd. 31, §8655 Burns 1914, Acts 1905 p. 219. In
As the relief sought by appellant’s complaint would involve the control by the courts, of discretionary power vested in the municipal authorities of Evansville, the court did not err in sustaining appellees’ demurrer to the complaint. Coverdale v. Edwards, supra; Cason v. City of Lebanon (1899), 153 Ind. 567, 55 N. E. 768; City of Vincennes v. Citizens Gas Light Co. (1892), 132 Ind. 114, 31 N. E. 573, 16 L. R. A. 485; 28 Cyc. 869; State, ex rel. v. Spokane (1901), 24 Wash. 53, 63 Pac. 1116; Southern Bell Tel., etc., Co. v. Richmond (1900), 103 Fed. 31, 44 C. C. A. 147. Judgment affirmed.
Spencer, J., not participating.
Note. — Reported, in 105 N. E. 777. On the power of a municipality in absence of express legislative authority to grant street franchises, see 22 L. R. A. (N. S.) 925. See, also, under (1) 26 Cyc. 289; (2, 8) 28 Cyc. 866.