183 Iowa 792 | Iowa | 1918
The plaintiff’s petition in equity states his case substantially as follows: He is the owner of a telephone toll line, extending from a point within the town of Washta to the neighboring towns of Quimby, Holstein, Aurelia, and Fielding. He does not own or operate, or ask' to be permitted to own or operate, a local telephone exchange in Washta, but uses and -proposes to use such line solely as a means of communication between his office or toll station and the other towns with which his line is connected, as above stated. He -alleges, however, that the defendants, Town of Washta and its mayor and council, deny his right to have or maintain such line within the corporate limits, and have cut down his poles and rolled up his wires, and rendered his line of no use or avail for its intended purpose.
To this petition, the defendant interposed a general demurrer. This being sustained, plaintiff elected to stand upbn his pleading without amendment. Judgment was thereupon entered, dismissing the petition, and plaintiff appeals.
The telephone, as a public convenience, serves two quite distinct uses. In one, it competes with the telegraph, extending its lines from town to town and city to city, affording means of quick communication between persons separated by very considerable distances. Tn the other1, it provides networks of numerous lines of a purely local character, extending from a central station in each city to the homes, offices, shops, and.business places therein. In performing services of the first kind, its success and efficiency depend primarily upon its right and opportunity to overcome the handicap of mere distance, and to provide a means of communication between more or less widely separated cities and towns. Each place so served is, in a sense, a mere way or relay station,
It is the opinion of the writer (who, in this respect, speaks here for himself alone) that, in thus amending the telegraph statute to admit the telephone to the same general rights, and to charge its use with the same duties and liabilities, the legislature had no thought that it was granting to telephone companies generally a universal franchise to establish and maintain local exchanges, but rather, that it was .placing the telephone on equality with the telegraph in'the use of the public roads as a right of way, by which to extend its lines from town to town and from place to place, and thus enable it to carry on a business which, up to that time, had been the special function and privilege of the telegraph. The adoption of this view by iny colleague^ is not necessary, however, to the result we have reached upon
We are agreed upon the proposition that the statute, as it stood when it related to the telegraph alone, did not require the granting of a municipal franchise as a condition precedent to the construction of such a line into and through any city or town, or to the maintenance therein of an office for the transaction of its business with the public. If this be correct, it is very clear that the amended statute, which ■ simply coupled the telephone with the telegraph, without other change therein, cannot be said to subject either the telegraph company or telephone company to such necessity.
It only remains to inquire whether the situation is so affected by the enactment of Code Section 776 that the appellant must secure a franchise from the appellee town before he can lawfully erect a. toll line therein. In our judgment, this inquiry must be answered in the negative. The general question was somewhat vaguely suggested in the opinion of this court in Farmers Tel. Co. v. Town of Washta, supra, but left undecided. It was again mentioned by Justice Deemer in State ex rel. Shaver v. Iowa Tel Co., supra, but again was passed without answer, as being unnecessary to the disposition of that case. The language used by the learned writer of that opinion is as follows:
“There may be some doubt, in construing Sections 775, 776, and 2158 together, whether cities and towns may now regulate toll lines within their limits. It may be that the state still retains its right to do this, under Section 2158. Perhaps no grant from the city is necessary to obtain the right to erect a toll line within the limits of the city; and it may be that, after obtaining a grant from the state, the city may still regulate the placing of the poles, wires, etc.-, for toll lines within its limits, by general and uniform regulations applying to all toll lines alike. Upon this and*797 other propositions, we express no opinion, as it is not necessary to a decision of the case.”
Viewing the question, then, as .still an open one, we are led to the conclusion that, whether the legislature, in enacting Code Sections 2158 to 2161, did or did not have in mind the differentiation between the telephone as a competitor with the telegraph for linking widely separated cities and towns by wire, and the telephone system as it exists in the localized service of an individual city or town, we are satisfied that, in enacting Section 776, the distinction was recognized, and that the requirement of a franchise from the municipality was intended to apply only to the right to establish and carry on the localized business which is ordinarily accomplished through a central office or exchange. It is this business, as we have already noted, which necessitates the multitude of poles and wires, calling most insistently for police supervision and regulation, and presenting many other features rendering its control and direct responsibility to the local authorities a matter of material importance to the local public. In other words, we think that, in the absence of any expressed or necessarily implied legislative intent to the contrary, the right to maintain a telephone toll line or telegraph line into or through a city or town, thus affording connection with other places and centers of population beyond the confines of the local jurisdiction, is provided for by the Code chapter on telegraphs and telephones, and that the exercise of the right so given is not conditioned upon the procurement -of a franchise from each municipality into which or through which the line is extended. The reasons for making the establishment and operation of a local exchange subject to the consent of the city or town, as well as to a large measure of municipal regulation, have little, if any, application to toll lines. A local system or exchange, the primary purpose of which is to supply the needs of the local population for intercommunication, is, or should be,
It follows that the demurrer to plaintiff’s petition should have been overruled. Tn so holding, it is proper to here say that this decision is not to be construed as in any sense a denial of the authority of the town, under Code Section 775, to prescribe reasonable rules and regulations under which the plaintiff may construct and maintain his toll
The judgment below is reversed, and cause remanded, with instructions to the trial court to overrule the demurrer, and for such further proceedings as may be in harmony with the views herein expressed. — Reversed and remanded.