118 P. 796 | Cal. | 1911
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *267 These are appeals from an order dissolving a temporary injunction, and from a judgment denying an injunction and an order denying a motion for a new trial in an action brought by plaintiffs against the city of Pasadena and certain officers of said city to obtain a decree restraining the defendants from in any manner interfering with the maintenance or operation of plaintiffs' telephone and telegraph system so far as the same is located on public streets in said city.
There is no conflict in the evidence as to what we consider the material facts in this case. Some of our statements in regard thereto are taken from the opinion of the trial court. The city of Pasadena was organized in the year 1886 under the general laws of the state as a city of the sixth class, and in the year 1901 reorganized under a freeholders' charter, pursuant to the provisions of the constitution. Prior to its organization as a city in 1886, viz.: in the year 1883, the Sunset Telephone-Telegraph Company established a telephone system therein, using the roads and streets thereof for its poles and wires. Plaintiff Sunset Telephone Telegraph Company was incorporated in April, 1889, and immediately acquired by assignment all of the property of the Sunset Telephone-Telegraph Company, including its lines in Pasadena, and whatever rights it had acquired in that city. The other plaintiff, the Pacific etc. Company, was incorporated in 1906, and is the lessee of its co-plaintiff of its entire telephone and telegraph system. The interests of the two plaintiffs in the matters involved are so close that they may be here treated as one person, and for convenience will be so treated and referred to in the singular number. As originally installed there was a local exchange and long distance connections. "The system has been extended, and has now about 4000 regular subscribers. Throughout the state of California, and in its various cities and towns, the said plaintiff has installed a similar system for both local and long distance use, serving its subscribers with about 195,000 telephones. It has likewise installed in the states of Oregon, Washington, Montana, Idaho, and Nevada, a system *269 for local and long distance service, having in those states an aggregate of about 135,000 telephones for its subscribers. The entire system in California and the other states is connected, forming a homogeneous whole." It may be assumed for the purposes of this case that plaintiff's lines in Pasadena have always been used in the conduct of an interstate telephone business. Although plaintiff's charter describes it as a telephone and telegraph company, it is clear that it has always been primarily and principally engaged in purely a "telephone" as distinguished from a "telegraph" business, and that while it has occasionally telegraphed some messages over its main telephone wires, such transmission of messages, to use the language of the finding of the trial court, "is not usual or customary, and the number of them transmitted is insignificant, and too insignificant to characterize the lines of plaintiffs or any of the lines of either of plaintiffs, situated in the city of Pasadena, as telegraph lines." Of course, its lines connecting its offices or exchanges with the houses and places of business of its subscribers, constituting the great bulk of its system in the city of Pasadena, have never been used at all for the transmission of telegraphic messages. The trial court found that until the year 1901, neither of plaintiffs transmitted any telegraph messages at all, over or by the aid or use of lines situated in the city of Pasadena, and that their lines situated in said city were not used at all for telegraphic purposes, and that the only lines or wires of plaintiff over which any telegraph messages have been or are at any time transmitted are telephone wires, used usually for telephone purposes, placed upon poles running on Fair Oaks Avenue south of Colorado Street to the south limits of said city. The findings of the trial court in this connection are sufficiently sustained by the evidence. It is manifest from the record that what plaintiff is seeking is to restrain action on the part of the local authorities in regard to a "telephone" as distinguished from a "telegraph" system.
On August 6, 1887, an ordinance was adopted by the board of trustees of the city on application of the Sunset Telephone-Telegraph Company, being ordinance No. 75, entitled "An ordinance granting to the Sunset Telephone-Telegraph Company the right to erect poles and run telephone wires along the public streets." This ordinance purported to grant to *270 the applicant the privilege for the period of twenty years from its date to erect and maintain telephone poles upon, and to run wires over and along the public highways and thoroughfares of the city of Pasadena, subject to certain conditions. These conditions reserved to the board of trustees of the city certain supervision and control in the matter of the location, construction, and maintenance of the poles and wires for the purpose of preventing undue interference with the use of the streets by the public. After the expiration of the term prescribed by this ordinance — viz.: on February 4, 1908, there was duly enacted an ordinance, known as ordinance No. 841, providing that it shall be unlawful to erect or maintain on any of the streets of the city any telegraph or telephone poles or wires for use in "doing local or intrastate business without a franchise or privilege therefor from the city of Pasadena," and that any person, etc., maintaining or operating upon the streets any telegraph or telephone lines or poles "doing an interstate business," shall pay to the city semi-annually in advance, "for the use of the streets, alleys, and public places by the poles, wires and appliances of such lines," the sum of seventy-five cents for each and every pole so maintained and operated, unless such person, etc., shall "have or secure a franchise or privilege" therefor. Poles and wires maintained in violation of the provisions of this ordinance are declared thereby to be public nuisances, and it is made the duty of certain officers of the city to summarily abate and remove any poles, wires, or appliances so maintained. Plaintiff having failed to apply for or secure from the city any franchise for the use of the streets for its poles and wires, and having refused to pay any of the charges imposed by the ordinance for the use of the streets for its poles and wires, the city authorities were proceeding with the work of summarily removing such poles and wires from the streets, with the result that this action was commenced to obtain an injunction restraining any such action by the city authorities, the claim of plaintiff being that as to it ordinance 841 is void and without force.
It is to be borne in mind that the only interference with plaintiff threatened by the city authorities is that of preventing the exclusive occupation by it with poles and wires of portions of the public streets of the city except upon compliance with the terms of the ordinance. To warrant such *271 exclusive use of any portion of a public highway by any person or corporation, there must be, as was said by the trial judge, a "grant of right from a competent authority."
It was claimed by plaintiff in the lower court that such a grant was to be found in the provisions of the act of Congress of July 24, 1866, entitled, "An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal and military purposes," the plaintiff being a telegraph as well as a telephone company and having accepted the provisions of said act in the year 1897. For all the purposes of this appeal, this claim has been expressly abandoned by plaintiff. It may properly be noted, in passing, that such a claim is without force under the views expressed in the recent case of Western Union Telegraph Co. v. Hopkins,1
Plaintiff relies upon the claim that all its lines in Pasadena are interstate telephone and telegraph lines doing an interstate telephone and telegraph business, as giving it the right to occupy the public streets thereof without permission of the city. We may assume purely for the purposes of this decision, that the claim of the plaintiff as to the interstate character of its business in Pasadena is sustained by the evidence, although the trial court found otherwise. It is, of course, not claimed and could not well be claimed, that the mere fact that one is engaged in interstate commerce gives him the right to permanently occupy, to the exclusion of the public, portions of public highways of a state, either within or without cities, in the absence of permission to do so from proper state authority. But it is urged that the right has been granted to plaintiff by the state by section 1 of the act of the legislature of the state of California, approved March 22, 1905, entitled, "An act providing for the sale of street-railroad and other franchises in counties and municipalities," etc. (Stats. 1905, p. 777.) That section, so far as material, simply provides that "every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate street or suburban railroads upon any public street or highway, . . . or to exercise any other privilege whatever hereafter proposed to be granted by boards of supervisors, boards of trustees, or common councils, or other governing or legislative bodies of any county, city and county, city or town within this state, except *272 steam railroads and except telegraph or telephone lines, doing aninterstate business, . . . shall be granted upon the conditions in this act provided, and not otherwise." The remaining sections prescribe the method of procedure to be followed and the conditions upon which the franchises specified shall be granted, such conditions including among others one to the effect that the holder must, after the first five years of the life of the franchise, pay to the county or municipality two per cent of the gross annual receipts, arising from the use, operation, or possession of the franchise. It appears very clear to us that this act cannot reasonably be construed as granting any right in public highways. Its whole purpose was to prescribe the method and conditions upon which the franchises included within its terms might be granted by the legislative body authorized by law to make the grant, or, as said in McGinnis v. Mayor etc.,
Plaintiffs' claim of right to use the streets of Pasadena for its poles and wires without permission from the city is based principally upon section
Section
This construction makes the section a pure grant by the state of a franchise in its highways, one as suggested by defendants "of incalculable value and importance." It is a well settled principle that grants contained in public statutes or made by public officers or public bodies are to be strictly construed in favor of the public, the rule being clearly stated in KnoxvilleWater Co. v. Knoxville,
In view of this rule, we are satisfied that the decision inDavis v. Pacific Tel. Tel. Co.,
When we consider the rules applicable in the construction of public grants, it seems at once apparent, in view of the fact that the telephone was absolutely unknown at the time of the enactment of section
As we have said, the telephone was unknown at the time of the enactment of section
We have examined the many cases cited by plaintiff, wherein it is held that the word "telegraph" in a statute includes "telephone." Comparatively few of these cases involve any question of the right of a telephone company to use public streets and highways under a statutory grant to telegraph companies, being generally, as our own Davis case, cases in which the meaning of the word as used in some other statute was involved. For instance, the question whether a telephone company could incorporate under a statute authorizing the incorporation of telegraph companies, the question whether such a company had the right of eminent domain under a statute giving telegraph companies such right, the question whether telephone companies were under the burdens and obligations imposed on telegraph companies, the question whether a statute providing for the assessment of telegraph companies applied to telephone companies, were questions presented in many of the cases. But there are some cases cited in which statutes giving telegraph companies rights and privileges in public highways were held to include telephone companies. In none of these cases, however, does the question of the effect of the rule requiring grants by the public to be strictly construed in favor of the grantor appear to have *280 been discussed. In so far as these decisions may appear, upon a close examination of the condition of the statutory law upon which they are based, to be opposed to the conclusion we have reached, we are of the opinion that they should not be followed in this state.
We are thus brought to the conclusion that prior to its repeal and re-enactment in the year 1905, section
In the year 1901 the city of Pasadena became organized under a freeholders' charter, adopted under the provisions of section 8 of article XI of the constitution of the state, and has ever since continued as a city under such charter. (Stats. 1901, p. 884, et seq.). In the year 1896, section 6 of article XI of the constitution was so amended as to make the provisions of a freeholders' charter so adopted paramount to general laws enacted by the state legislature "in municipal affairs." The charter above referred to purports to confer upon the city of Pasadena full control of its streets, with power to determine whether and upon what terms portions thereof may be exclusively used and occupied by telegraph or telephone companies. By subdivision 13 of section 3 of article I, the city is declared to have the power to lay out, open, extend, widen, change, vacate, and improve streets; by subdivision 7 of section 10 of article VIII the city council is declared to have not only the power to require the placing underground of all telephone, telegraph and other wires, but also the power to "prohibit the placing of poles and the suspending of wires along or across any of the streets, alleys and public places of the city;" by subdivision 31 of the same section the city council is declared to have the power "to grant
the right to erect or lay telegraph or telephone wires, to construct and operate street-railroads, to lay gas or water pipes, to erect poles and wires, or lay conduits for transmitting electric energy for lighting or power purposes along or upon thepublic streets and highways of the city; provided, however, that all such rights and franchises shall be granted subject to all the restrictions and limitations in this charter contained relating to the granting of franchises." The italics are ours. By section 3 of article XIII, as amended in February, 1905, [Stats. 1905, p. 1022], the terms for which any franchise may be granted was limited to twenty years, and *281
the city council was authorized to impose such lawful conditions, restrictions, and limitations as may best subserve the public interest and welfare. We are satisfied that these provisions can reasonably be read in no other way than as evidencing an intention to give to the city of Pasadena full control of its streets and highways, with the power to determine for itself whether any portion thereof shall be exclusively used and occupied by the poles and wires of telegraph, telephone, or power companies. It cannot be disputed in the light of the decisions that the state may surrender to any municipality full control of its streets and highways in regard to such matters, and, of course, an appropriate place for an enactment of this character on the part of the state is, under our constitutional provisions, the freeholders' charter provided for by section 8, article XI. (See Platt v. City and County of San Francisco,
Are the matters referred to "municipal affairs" within the meaning of those words as they are used in section 6 of article XI of the constitution? There has been much discussion in our decisions as to what matters are embraced in this term, and it has been said that it is very difficult, if not impossible, to give a general definition clearly defining the term "municipal affairs" and its scope. But we can see very little reason in the argument that the question whether and to what extent the streets of a municipality shall be subjected to such secondary uses as the maintenance therein of telegraph and telephone poles and wires, the primary purpose for which highways are established being the convenience of public travel, and such secondary uses permanently excluding the public from using for such purpose the portions occupied for such uses, is not a *282
municipal affair. If the provisions of not only the many freeholders' charters of this state but also those of the general Municipal Corporation Act and other statutes are to be given any effect in the consideration of this question, they demonstrate the existence of practically a universal idea that such matters are principally of local concern, and should be within the exclusive control of the municipality. Even in the case of the ordinary commercial railroad, we find legislative recognition of the fact that the question, whether such a railroad should be allowed to occupy, for its tracks any street, alley, or highway within a municipality is one of such concern to the municipality that its consent should be a prerequisite, it being provided in section 470 of the Civil Code, as enacted in 1872, that "no railroad corporation must use any street, alley, or highway . . . within any incorporated city or town, unless the right to so use the same is granted by a two-thirds vote of the town or city authority from which the right must emenate." As said by learned counsel for defendants, "the legislature has consistently recognized and treated the control of municipal streets by municipalities as a local or municipal affair as distinguished from a state affair." It is unquestioned that the matter of opening, widening, and vacating the streets of a municipality is purely a municipal affair. (See Byrne v. Drain,
In holding that a statute of the state of Washington made the consent of the city council of a municipality prerequisite to such use of the streets for telegraph and telephone lines, the *283
supreme court of that state said: "In addition to the reasons suggested heretofore for imposing the powers and duties upon municipalities to control the streets, it is pertinent to refer to the long usage in this country for vesting such authority in municipalities. Such usage is historical, and is expressed in many statutes in the different states and in the mother country. The people of a municipality, who incur and pay the expenses for the construction and maintenance of their streets, and who largely use them, are usually most capable of exercising discretion in the secondary and subordinate purposes for which their streets shall be used." (State ex rel. Telephone Telegraph Co. v. City of Spokane,
The matters referred to being "municipal affairs" within the meaning of our constitutional provision, the charter provisions vesting control in the city of Pasadena are not subject to general laws, and the re-enactment of section
It follows that plaintiff has no effectual "grant of right from a competent authority" for the use of the streets of the city of Pasadena for its poles and wires.
The ordinance is not open to the objection that it discriminates against lines doing an interstate business, in that it imposes a semi-annual charge of seventy-five cents for each pole of a line used in interstate business, and imposes no such charge for the poles of lines used in local or intrastate business. The discrimination, if any, is one entirely in favor of the interstate line. As to lines doing a local or intrastate business the requirement of the ordinance is absolute that such use of the streets cannot be had without a franchise therefor from the city of Pasadena. As to lines doing an interstate business, it is recognized that a franchise may also be obtained from the city, and it is expressly provided that if such person or corporation have or secure such franchise, it shall not be required to pay the amounts required by the ordinance during the life of the franchise. The requirement as to such lines is simply that either a franchise must be obtained for the use of the streets, as required for intrastate and local lines, or the charge imposed by the ordinance must be paid. In other words, no franchise need be procured for such use for interstate lines, but the streets, may be used for such lines without any grant by the city, provided the required charge be paid. At the same time, the owners of an interstate line, if they elect, may obtain such a franchise therefor just as and presumably on as favorable terms as the owners of intrastate and local lines may obtain their franchise, and thus exempt themselves from the payment of any such charge as is imposed by the ordinance. It is obvious, therefore, that there is no discrimination against interstate lines.
There is no question in this case of any actual discrimination against interstate companies in the enforcement of the ordinance, and the ordinance, so far as any attempt at discrimination is concerned, is fair on its face. It is of course needless to say that such a discrimination would not be allowable.
We are satisfied, in view of what has been said as to the power of the municipality in such matters, that no question is here involved as to the reasonableness of the amount of the semi-annual charge made by the ordinance. The city of Pasadena having the power to withhold from telephone companies *285 the right to exclusively occupy portions of its streets for poles and wires, or to permit such occupation on such terms as are satisfactory to it, we have, as suggested by the trial judge, no question whether or not the amount charged is a reasonable charge. As said by him, "If it be competent for the city to exclude the poles and wires of a telephone company from its streets (and for reasons here given it must be so held), then, clearly, it is competent for the city to name such terms and require the payment of such compensation as seems proper."
Our conclusions upon the matters we have discussed require an affirmance of the action of the trial court.
The judgment and orders appealed from are affirmed.
Shaw, J., Sloss, J., Henshaw, J., Lorigan, J., and Melvin, J., concurred.
Rehearing denied.