173 Iowa 497 | Iowa | 1916
Lead Opinion
Chariton is an incorporated city of the second class; and, in 1894, passed an ordinance granting to the defendant company the right to erect, maintain and use poles in the streets of the city for telephone purposes, upon certain conditions, for the period of 15 years. The 15 years expired in 1909. After the passage of the ordinance, the company did construct a telephone exchange within the city and upon its streets and alleys, and has continued to operate the same and occupy the streets and alleys with its poles and wires ever since.
The demurrer of the defendant was on the following grounds:
The ordinance is invalid because of a want of power in the city of Chariton to enact said ordinance or grant the franchise which it purports to contain because, prior to the Code of 1897, the power to grant such franchises or rights rested solely in the state. That when defendant constructed its telephone system in Chariton, there was in force Section 1324 of the Code of 1873, as amended by Chapter 104 of the Acts of the Nineteenth General Assembly, and that defendant’s lines were constructed under the grants contained in said section, and the legislature has never granted, the city of Chariton any power to cancel or terminate said grant. That the construction and subsequent operation of its telephone lines by defendant were an acceptance of the grant contained in the statute, and constituted a contract between defendant and the state of Iowa, which the state has never attempted to rescind.
The points relied upon by plaintiff (appellant) are that, the legislature having defined the word “highway”, the court is bound by that definition and cannot construe the word otherwise. That the defendant company never had the right to construct its exchange upon the streets of Chariton, prior to the ordinance granting such right in 1894. That the city of Chariton had the power to grant a license to the telephone company, and such was the effect of the ordinance passed in 1894. That, if the telephone company was given a grant by the statute relied upon, it took the same subject to Code Section now 1619, as enacted in the Code of 1873, and new conditions have been imposed upon the enjoyment of the same by Sections 775 and 776, Code, which conditions the telephone company has failed to comply with.
The plaintiff (appellant) contends that the court arrived at the wrong conclusion in Chamberlain v. Iowa Tel. Co., 119 Iowa 619, in construing “highways” in the statute to include streets and alleys; and this is one of the reasons why it contends that the defendant is not entitled to occupy the streets. Another contention, as already stated, is that new conditions have been imposed upon the enjoyment of the right, by Sections 775 anc] 776 of the Code of 1897.
We do not .consider it necessary to pass upon the question as to the effect of the ordinance; the defendant company does not claim any right under it. It should be said, perhaps, that a majority of the electors have not voted in favor of any franchise to the defendant company, as provided in Section 776 of the statute.
Dissenting Opinion
(Dissenting). — I. For reasons which are sufficiently set forth in my dissent in the recent case of State ex rel. Shaver v. Iowa Telephone Co., I must decline to concur in the foregoing opinion prepared by Justice Deemer.
II. I further dissent because, for reasons hereinafter stated, the correctness of the majority holding in the Shaver case may be conceded and the authority of that precedent fully admitted, and yet there remain good and sufficient reasons why it does not apply to or control the decision of the case at bar. Let us assume, for the purposes of the argument, that, under the statute as it stood when the telephone company first proposed to establish a business at Chariton, it had the legal right to enter upon and occupy the streets with its wires and poles and establish and operate an exchange without the city’s consent and without asking and receiving a local charter therefor; yet no one will deny that it was under no legal obligation or necessity to claim or exercise all its statutory rights. If it acted as it did in order to cultivate the good will of the people whom it proposed to serve, or if it preferred to accept a compromise, rather than to hold for the full measure of the grant from the state, or if, for any reason, it saw fit to ask and receive a local franchise of an expressly limited character, or, what is still more to the point, if it did not know or understand its superior right until years later, when this court discovered and announced it, it would seem to be beyond fair question in a court of equity that, when such corporation has continued in possession of the streets and in the transaction of its business under the franchise, or form of franchise, so obtained, for the full period of time therein provided for, it would not be heard to say that the act of the city was ultra vires, and that it now elects to treat its entrance into the city and its continuance therein as referable only to the statute. It stands conceded that, in the year 1894, the telephone company did apply to the city for and obtain therefrom an ordinance purporting to be the grant of a franchise for its business in that city for a period of fifteen years; and
Such being my view of the law, I think the decree of the district court should be reversed. I am authorized by Mr. Justice Preston to say that- he joins in this dissent.