Western Union Telegraph Co. v. City of RichmondWestern Union Telegraph Co. v. City of Richmond
The Western Union Telegraph Company, a corporation organized under the laws of the state of New York, filed the bill in this case against the. city of Richmond, a municipal corporation existing- under the laws of the state of Virginia. The cause of action is alleged to be between citizens’of different states, and also as arising under the Constitution and laws of the United States.
It is claimed that complainant has been since the year 1851 engaged in the construction and operation of telegraph lines in all the states and territories of the United States and in the Dominion of Canada, and that in connection with submarine cables it has telegraphic communication with foreign countries; that its system comprises over 193,000 miles of poles and cables, over 900,000 miles of wire, over 33,000 offices, and that it transmits annually about 65,000,000 messages for the public, for the government of the United States, and for the governments of foreign countries; that as part of its system, connecting with its main office in the city oí New York and thence to all the commercial centers of the world, it has constructed and now operates a telegraph line over and along the streets and alleys of the defendant city.
The bill alleges that, by an act of the Congress of the United States approved July 31, I860, entitled “An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military and other purposes,” the provisions of which are substantially incorporated in sections 5368 to 5369 inclusive of the Revised Statutes of the United States (U. S. Comp. St. 1901, pp. SS'J'D — 3581), it was provided:
“See. 5263. Any telegraph company now organized, or which may hereafter he organized, under the laws of any state, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by law, and over, under, or across the navigable streams or waters of the United States; but such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads.
*312 “Sec. 5204. Any telegraph company organized, under the laws of any state shall have the right to take and nse from the public lands through which its lines of telegraph may pass, the necessary stone, timber, and other materials for its xjosts, piers, stations, and other needful uses in the construction, maintenance, and operation of its lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption through which their lines of telegraph may be located as may be necessary for their stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.
“Sec. 6205. The rights and privileges granted under the provisions of the act of July twenty-four, eighteen hundred and sixty-six, entitled ‘An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes,’ or under this title, shall not be transferred by any company acting.thereunder to any other corporation, association, or person.
“Sec. 5266. Telegrams between the several departments of the government and their officers and agents, in their transmission over the lines of any telegraph company to which has been given the right of way, timber, or station lands from the public domain shall have priority over all other business, at such rates as the Postmaster-General shall annually fix. And no part of any appropriation for the several departments of the government shall be paid to any company which neglects or refuses to transmit such telegrams in accordance with the provisions of this section.
“Sec. 5267. The United States may, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all companies acting under the provisions of the act of July twenty-fourth, eighteen hundred and sixty-six, entitled ‘An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes,’ or under this title, at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the Postmaster-General of the United States, two by the company interested, and one by the four so previously selected.
“Sec. 5268. Before any telegraph company shall exercise any of the powers or privileges conferred by law such company shall file their written acceptance with the Postmaster-General of the restrictions and obligations required by law.
“See. 5269. Whenever any telegraph company, after having filed its written acceptance with the Postmaster-General of the restrictions and obligations required by the act approved July twenty-fourth, eighteen hundred and sixty-six, entitled ‘An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes,’ or by this title, shall, by its agents or employes, ref use. or neglect to transmit any such telegraphic communications as are provided for by the aforesaid act, or by this title, or by the provisions of section two hundred and twenty-one, title ‘The Department of War,’ authorizing the Secretary of War to provide for taking meteorological observations at the military stations and other points of the interior of the continent, and for giving notice on the northern lakes and seaboard of the approach and force of storms, such telegraph company shall be liable to a penalty of not less than one hundred dollars, and not more than one thousand dollars for each such refusal or neglect. (To be recovered by an action or actions at law in any district court of the United States.)”
Complainant shows that by an act of Congress approved June 8, 1872 (Act June 8, 1872, c. 335, 17 Stat. pp. 308, 309) all the waters of the United States during the time the mail is carried thereon, all railways and all parts of railways, all canals and plank roads, and all letter carrier routes established in any city or town for the collection and delivery of mail matter by carriers, were declared by Congress to be “post roads,” and that by an act of Congress approved March t, 1884, “all public roads and highways, while kept up and maintained as
Complainant says that, complying with the provisions of thc act of July 21, 18(56, it on or about the 8th day of June, 1867, duly filed its written acceptance with the Postmaster General of the United States of the restrictions and obligations of that act, and that thereby ii became entitled to all the rights and privileges conferred by it, and burdened with all the obligations imposed by it, and that it has continuously, since the filing of that acceptance, fully performed all the obligations and requirements of that act.
Complainant alleges that, in compliance with the legislation men-, tioned, it has at all times carried for the government of the 1 Jnitcd ⅛ States, over its lines situated along the streets and alleys of the city of Richmond, referred to in chapter 88 of the Richmond City Code of .1899, and especially the streets and alleys named in the ordinance entitled “An ordinance to amend and reordain section 27 of chapter 88, Richmond City Code (1899), requiring telegraph, telephone, and electric light and power wires to be placed underground on certain streets of the city,” approved March 15, 1902, at rates far below the reasonable rates charged to and paid by individuals for similar services, communications relating to the meteorological and signal service, from the various stations thereof.
Complainant claims that all the streets and alleys of the city of Richmond are post roads, within the meaning of said acts of Congress, and that complainant has the right to construct, maintain, and operate lines of telegraph over and along all of them, in such manner as not to interfere with the ordinary travel thereon; that the grant by the United States, in and by the legislation mentioned, of the right to construct, operate, and maintain its lines of telegraph upon all streets and alleys of the city of Richmond was made upon a full, valuable, and continuing consideration, paid and rendered by complainant to the United States; that such consideration was the agreement of complainant shown by its acceptance of the act of Congress, and by the full and complete performance by it of all the duties imposed by the Congress; that thereby the right granted to complainant to construct and operate its lines of telegraph over and along said streets and alleys became complete and vested, and is in full force and effect: that its lines have been constructed so as not to interfere with the ordinary travel on the streets and alleys mentioned; and that it is entitled to all the rights, powers, and privileges conferred by the act of Congress of July 21, 1866.
The bill then recites that the defendant has enacted an ordinance concerning wires, poles, and conduits in, over, and under the streets of Richmond, published as chapter 88 of the Code of that city, and has also passed certain amendments thereto, which are alleged to be grossly unreasonable and illegal; that they are in violation of and repugnant to article 1, § 8, of the Constitution of the United States, and of article 14, § 1, of Amendments to that Constitution; that they violate the act of Congress approved July 24, 1866, as also the other acts of Congress that have been referred to; that they impose unreasonable and illegal.
■ Complainant charges that said ordinance, each and every section thereof, and all amendments thereto, are unreasonable, unjust, illegal, and void for the following reasons: The city of Richmond is at no appreciable expense in issuing licenses under the ordinance, or in inspecting and supervising the poles, wires, and other appliances of complainant; the charges imposed are not based on any proper estimate of the costs and expenses of the city because of such inspection and supervision, but are enormously in excess of any amount that could be incident to such expenditures, and as could properly be incurred in connection with reasonable_precautions required for the safety of the public; the poles, i wires, and other appliances are so located as not to interfere with any kind of traffic, are not old and decayed, but new and sound, and cause no fear of accident, and are kept in good order by complainant for its own protection; that all provisions of the ordinance and of all sections and amendments thereof, requiring complainant to construct and maintain conduits and run its wires therein, and imposing charges on the same, and requiring the removal of the poles, wires, and other appliances from the streets and alleys, are unreasonable and illegal,»and deny to and deprive complainant of its rights, powers, and privileges under the Constitution and laws of the United States; that such charges are enormously more than can lawfully be imposed under any right held by the defendant to make charges for legal purposes; that complainant is paying the city the same property tax on its wires, poles, and other appliances which is imposed on other corporations and citizens, and in addition is paying the large sum of $500 per annum as a specific license tax, and that the fees, taxes, and charges imposed by said chapter 88, with its amendments, are unreasonable and illegal; that by said chapter the management of complainant’s lines and the control of its business is taken largely out of its hands, and placed in charge of the city engineer and the committee on streets of defendant.
The bill sets forth, in substance, the different sections of said chapter 88 complained of, and makes various allegations concerning some ■of them, to which reference is now made: That section 1 provides that the city engineer is to determine the size, quality, character, number, and location of complainant’s poles before they can be erected, and is authorized to order changes of location at any time. Complainant alleges that the power so given the engineer is absolute and final; no provision being made to appeal from his decision, however unreasonable and burdensome it may be. That section 2 provides that all poles now erected for the support of wires, except such as support wires required by the city ordinances, shall be allowed to remain only upon terms and conditions in said ordinance mentioned; and this section, it is charged, practically annuls the act of Congress of July 24, 1866. That under section 4 the committee on streets can require complainant to allow other persons or companies to put such wires upon its poles as will not in the opinion of that committee unreasonably
The bill then proceeds to charge that the amendment to section 23 of December 18, 1903, required complainant to remove all of its poles, wires, and other appliances for conducting electricity within the district mentioned in section 27 as amended within six mouths from the approval of said amendment to section 28, and as that period has expired, complainant, not having complied with such requirements, is threatened by the defendant, through its attorney, and charges that the city intends to proceed forthwith to impose and collect the penalties provided for by said chapter 88, and that defendant is going to use the penal features of such enactments in order to compel complainant to remove its poles and wires from the underground territory, as described; that it has paid to the defendant the license tax of <$o00 imposed for the current year, also the tax of $2 per pole for said period, and all ad valorem and property taxes required of it; that no adequate remedy exists save in a court of equity, and that irreparable injury will ensue unless defendant is enjoined from enforcing such penal features, and unless said ordinance and the sections especially referred to are decreed to be unreasonable, null, and void.
The prayer is that the city of Richmond be restrained from enforcing the provisions of any of the sections of the chapter of the city Code mentioned, or any of the amendments thereto, and that the same may be declared to be unreasonable and illegal, and, pending the hearing of an application for injunction, that a restraining order may issue.
The bill, duly verified, was presented to the court, on consideration of which the restraining order asked for was granted, by which the city of Richmond, its officers, agents, and attorneys, were restrained from enforcing the fines and penalties imposed by said chapter 88 and the amendments thereto, and from removing from the streets and alleys of the city of Richmond the poles, wires, cables, and appliances of the complainant.
To this bill the defendant appeared and filed a demurrer, which after argument was overruled. I do not find it necessary to set forth in detail the grounds of the demurrer, the main points of which will be alluded to hereafter. The defendant incorporated in its answer the points in substance on which it relied in the demurrer, which on the pleadings and evidence are now to be finally disposed of.
The answer admits the citizenship of the parties and the amount in controversy to he as alleged in the bill, and also that the case is one arising under the Constitution and laws of the United States. Defendant admits that all of the streets and alleys of the city of Richmond along which complainant has erected its poles and strung its wires are post roads, under the act of Congress referred to and under the Constitution of the United States, but denies the claim of complainant that under the same, by having accepted the provisions of that legislation, that complainant has the right to construct and maintain its lines over and along said streets and alleys, without reference to the requirements of the statutes of the state of Virginia and the ordi
With leave of the court an amended bill was filed, which in substance elaborated the specific allegations of the original bill, and to this amended bill the defendant filed an answer, in all material matters the same as its original answer, but neither the amended bill nor the answer thereto will be set forth in detail.
Subsequently the defendant moved for leave to file an amended and supplemental answer, which the court refused to permit, but allowed a cross-bill to be filed, in which, among other matters, the city of Richmond sets forth that, by an ordinance of its council approved December 16, 1905, it was enacted: ,
“That chapter 88 of the Richmond City Code 1899 shall be amended so as to add a new section to the end of said chapter in the words and figures following: (34) None of the obligations, burdens, and restrictions of this chap--ter shall, in any manner, interfere with or destroy the rights and privileges secured to telegraph companies which have aecei>ted the provisions of the act of Congress of July 24th, 1866.”
That the complainant, under the act of Congress of July 24, 18GB, was entitled to use the streets and alleys of the city of Richmond for purposes connected with its telegraphic system is now so well established that the citation of authorities to sustain it will not be indulged in. That it had this right independent of any action by the city of Richmond, and without proceeding under the provisions of any legislation by the state of Virginia, is I think without question. To hold that the companies mentioned in said act of Congress are required to obtain the consent of the states and the municipalities through which they pass before they are entitled to so use the post roads of the United States is to admit the power of an authority other than the United States to control them, and indirectly, at least, to concede to such other authority the right to regulate interstate commerce. The object sought to he obtained, the benefits intended to be secured to the government of the United States, through the regulation of the business mentioned, and the facilities for communication between its departments in distant sections of the nation, would he jeopardized if not destroyed by the antagonistic interests likely to be found in different localities, if the officials thereof possessed the power to determine when and how the right granted by the federal government should become operative. Such companies, under the legislation of the Congress, have the right to use the post roads of the United States in conducting their business; but such use is subj ect to the police power of the localities where they so operate, which, properly exercised by state and municipal authority, must be respected by complainant and by all companies similarly situated. The rules and regulations promulgated by such authority must be reasonable, should he free from local prejudice or favoritism, and enacted in an honest endeavor to best subserve existing rights and conditions. It is the duty of the local authorities to see that the safety and the interests of the communities where such companies are located are protected, and that for the use of the property of the public such compensation is paid as will at least keep in good repair the streets, alleys, and post roads that are intended for the enjoyment of all alike. As a matter of course, all such companies are subject to taxation on their properly in the same manner and to the same extent as are the other companies and citizens generally of the sections where the property is situated. They must contribute their due proportion to the expenses of the local governments, the benefits of which they enjoy, and whose protection they are entitled to.
The requirements of section 1, that the poles used by complainant shall be subject to the determination of the city engineer as to size, number, location, and manner of erection, does not deprive complainant of the right given it by the act of Congress of July 24, 1866, as all companies accepting the terms of that legislation do so, subject to the right of the states and municipalities therein to regulate by reasonable rules the manner in and by which the highways of the state and the streets of the cities shall be so used. It will not do to hold that the companies shall themselves exclusively decide such matters, nor will the cities be permitted to dispose of them in such way as to render the rights granted by Congress inoperative. If the conditions imposed are unreasonable, and are intended to unnecessarily restrict or to absolutely prevent such use of the post roads of the country, such regulations will he decreed to be inoperative and void. I see no objection to the designation of the city engineer as the party to decide such matters, and presumably his action will be fait ’and just to all the interests involved. When he acts unjustly, then his conduct can be complained of and reviewed.
So far as section 2 is concerned, complainant’s fears are not well grounded, for the city cannot compel it to cease its use of the streets and alleys; and the desire of the defendant to compel complainant to submit to the jurisdiction of its council is not reprehensible, especially as It does not appear that such effort is accompanied by the intended enforcement of unjust and arbitrary rules and conditions.
The contention that section 4 is unreasonable is I think without merit, for unless the city reserves the right to regulate the use of the poles, giving to the company erecting them all that, its necessities require, and then permitting others to use them for purposes that will not interfere with their use by the owner, the streets will be actually incumbered with the great number of poles that the many interests using them may erect. The public convenience is to he considered by the city, as well as the rights of the complainant, and if by requiring the latter to permit others to use its poles, under proper restrictions and for a just consideration, the further occupancy of the streets with its accompanying defacement and impairment is obviated, surely much has been accomplished and no appreciable harm inflicted. While there is nothing in this record tending to show that complainant has so acted, still it is not improbable that some telegraph company may not for purposes of its own erect poles intended to retard the business of others, and it is quite apparent that a regulation permitting those others to use such poles would have a tendency to check their erection. When the committee on streets of the city of Richmond abuses the power given it by this section, complainant I doubt not will find a way to be duly heard.
Section 6 in reserving to the board of fire commissioners the right to run such wires as are needed for the fire alarm and the police telegraph departments of the city of Richmond on the poles erected or allowed under the ordinance mentioned is a wise provision, beneficial to the public, not burdensome to the complainant, and makes unnecessary the erection of additional poles on crowded streets for those purposes.
Section 7 is not specifically complained of, and though included in the general condemnation of the ordinance is free from fault; as is also section 8, which so far as now appears is a proper exercise of the police power of the city. If hereafter, in the exercise of the power reserved in this section, action unreasonable in character should be taken by the city, then will be the time for complainant to show it and secure relief therefrom.
The allegations of the bill pertaining to sections 9, 10, 11, 12, and 13 of the ordinance, that their provisions violate the terms of the act of Congress mentioned in imposing a charge of two dollars per pole per year and providing a penalty for its nonpayment, and for failure to remove the poles on which complainant has not paid said sums, cannot be sustained. The statute is not susceptible of the construction claimed for it by complainant, and the evidence does not show that the charge made is under the circumstances unreasonable.
I see no objection to sections 15 and 16, and I am quite sure that they are not liable to the criticism made by complainant. The inspection provided for is necessary, and the city would fail in its duty to the public should it neglect to provide for and require it. The fear that something unreasonable may in the future be imposed by virtue of these sections is unwarranted and chimerical, and all such troubles can be met and disposed of when they present themselves.
Sections 17 to 26 relate to the wires, the method of erecting them, their insulation, how they can be distinguished, what companies own them, and impose penalties for failure to comply with their provisions. They are eminently proper, apply to all alike, are not unreasonable, and indicate a desire on the part of the city, to protect the interests of all whose welfare is confided to its care.
Sections 27 and 28, as originally enacted, and as amended, are alleged by complainant to be specially burdensome, illegal, unconstitutional, and unreasonably restrictive of its rights, grants, and privileges. They determine and describe the limits of the “underground district,” and require all poles and wires in use therein.- to be removed therefrom except trolley wires. They authorize any company to place its wires in conduits under the surface of the streets of the city, after application has been duly made by it for that purpose, in which the streets to be so used are to be named, and a map locating the conduits, with plans and details concerning them, is to be filed therewith. The permission to- use the streets is then to- be granted by the city council, under the conditions and regulations heretofore referred to. I think
The courts will not undertake to make reasonable regulations under which the business of complainant may be conducted in the city of Richmond, but will in a proper case, when that city has duly enacted such rules, determine whether or not they are reasonable.
This court will not presume that the ordinance of the city yet to be enacted, as provided for in section 31, will be unfair and illegal, but does presume that, should it prove to be so, the court to which complainant may then apply will so hold, and will take jurisdiction of the matter, regardless of the fact that the city may not have so provided, as this court in this case took such jurisdiction.
That complainant was not given permission by the Congress to occupy the streets of the city of Richmond without paying its fair proportion of the taxes required to maintain the government of that city, and without being required to submit to all reasonable regulations provided for by its council, has been so often announced by the courts as to justify the suggestion that questions relating to such matters might well be considered as disposed of. However, in deference to the earnest insistence of able and experienced counsel, I refer to a few of the decisions of the Supreme Court of the United States. In St. Louis v. Western Union Telegraph Co.,
“It is a misconception, however, to suppose that the franchise or privilege granted by the act of 1866 carries with it the unrestricted right to appropriate the public property of a state. It is lifce any other franchise, to be exercised in subordination to public as to private rights.”
In Atlantic, etc., Tel. Co. v. Philadelphia,
“No corporation, even though engaged in interstate commerce, can appropriate to its own use property, public or private, without liability to charge therefor. * ⅞ * In other words, if a corporation, although engaged in the ¡business of interstate commerce, so carries on its business as to justify, at the hands of any municipality, a police supervision of the property and instrumentalities used therein, the municipality is not bound to furnish such supervision for nothing, and may, in addition to ordinary property taxation, subject the corporation to a charge for the expense of the supervision.”
In Richmond v. Southern Bell Telephone & Telegraph Co.,
“The 'Circuit Court of Appeals, while holding that the plaintiff was entitled to avail itself of the provisions of the act of 1866 — a question to be presently considered-- adjudged that the rights and privileges granted by that act were to be enjoyed in subordination to public use and private rights, and subject to any lawful exercise of the police power belonging to the state or to one of its municipalities. Tins was in accordance with what this court had adjudged to be the scope and effect of the act of 1866.”
In Western Union Telegraph Co. v. Massachusetts,
“While the state could not Interfere by any specific statute to prevent a corporation from placing its lines along these post roads, or stop the use of them after they were placed there, nevertheless the company receiving the benefit of the laws of the state for the protection of its proj>erty and its rights is liable to be taxed upon its real or personal property as any other person would be. It never could have been intended by the Congress of the United States, in conferring upon a corporation of one state the authority to enter the territory of any other state and erect its polos and lines therein,*324 to establish the proposition that such a company owed no obedience to the laws of the state into which it thus entered, and was under no obligation to pay its fair proportion of the taxes necessary to its support.”
While it is true that the city cannot impose a tax upon the franchises of the company,' as that would be a burden upon interstate commerce, still it can make a reasonable charge for the use of its property, in which all the public are interested; and if the complainant occupies any of such property there is no reason why it should not pay a reasonable rent for it, as all citizens and all other corporations do for a like use. It is not a tax, in the sense in which that word is ordinarily used, but is in the nature of a special toll, imposed for a specific use of designated property by a particular party. The poles deprive the city and the public of the use of certain portions of the streets, and frequently necessitate the excavation, repair, and inspection of the same, causing expense to the city and inconvenience to the public. A toll of two dollars per pole per annum might be an unreasonable charge along a country highway, but in a thickly settled section, like the streets of the city of Richmond, where many people for various purposes make continuous uses of them, the sum of two dollars per year for such use per pole seems entirely proper and reasonable. It may not be improper in this connection to notice that I find from the record that complainant uncomplainingly paid this charge for over 20 years preceding the institution of this suit, and it seems to me that such acquiescence should, unless other reasons than those assigned exist, estop it from complaining now, so far, at least, as such charge is concerned.
My conclusion is that complainant has not been deprived of am*- of the rights to which it is entitled under the laws and Constitution of the United States, and that no unreasonable rules and regulations have been provided by the ordinance complained of, or by any of its sections, for conducting the business of complainant in the city of Richmond.
The injunction asked for is denied, the restraining order heretofore granted will be dissolved, and the bill will be dismissed.