62 Wis. 32 | Wis. | 1884
The telephone is a new invention; so recent, that even our statutes, as revised in 1878, fail to mention it.° By what authority is it at large in Oshkosh? May that municipality legally exact a license fee of $300 a year for the'privilege of its remaining? This is the question that confronts us. The corporate existence of the plaintiff, not having been specifically denied, stands as admitted. Sec. 4199, R. S.; Crane Bros. Manuf'g Co. v. Morse, 49 Wis. 370. Of course, the corporation was necessarily formed, and the charter necessarily obtained, under ch. 86, R. S. As indicated, there is no express mention of any telephone therein. Sec. 1771 of that chapter does expressly authorize the formation of corporations for the “purpose” of “ building and operating telegraph lines, or conducting the business of telegraphing in any way; . . . or for any lawful business or purpose whatever, except” certain classes of business specifically mentioned. Precisely the same language is preserved in the amendment to that section. Ch. 220, Laws of-1883. Such corporation, “to build and operate telegraph lines, or conduct the business of telegraphing,” is especially authorized to “conduct and maintain such lines, with all necessary appurtenances, from point to point upon or along or across any public road, highway, or bridge, or any stream or body of water, or upon the land of any owner consenting
It is urged that the powers thus expressly given to form and organize corporations for the purpose of building and operating telegrajjh lines, or conducting the business of telegraphing in any way, includes the power of forming and organizing corporations for the purpose of building and operating telephone lines, or conducting the business of telephoning in any way. Of course there is a distinction between the two classes of business, but in almost every respect they are very similar, if not identical. Each of them must erect its poles or posts, and upon the tops of them attach its lines of wire from point to point. Each must almost necessarily enter upon, cilong, or across public roads, highways, streams, bodies of water, and upon the lands of individuals, for the purposes mentioned. In these respects they seem to be identical. One may require more lines of wire than the other, but we are not aware of any other dis
As for the difference in the mode of communication by means of a telegraphic and telephonic apparatus, see Attorney General v. Edison Telephone Co. of London, L. R. 6 Q. B. Div. 244. In that case Mr. Stephen, one of the judges of the Exchequer division of the High Court of Justice, who, unlike most American judges, seems to have sufficient time not only to satisfy his own curiosity, but the curiosity of all the curious, has given a very lengthy and definitive discussion of that subject. In that case the court conclude that Edison’s telephone was a telegraph, within the meaning of the telegraph acts, although the telephone was not invented nor contemplated when those acts were passed. It is there said, in effect, that the mere “ fact, if it is a.fact, that sound itself is transmitted by the telephone, establishes ” no “ material distinction between telephonic and telegraphic communication, as the transmission, if it takes place, is performed by a wire acted on by electricity.” It is there further said that, “of course, no one supposes that the legislature intended to refer specifically to telephones many years before they were invented, but it is highly probable that they would, and it seems to us clear that they actually did, use language embracing future discoveries as to the use of electricity for the purpose of conveying intelligence.” It is upon this theory of progressive construction that the powers conferred upon Congress to regulate commerce, and to establish post-offices and post-roads, have been held not confined to the instrumentalities of commerce, or of the postal serv
It appears in the record before us that the poles and posts of the plaintiff in the streets and public alleys of the city, and the wires upon them, had been put there and operated to June, 1883, by the permission, consent, and approval of the defendant, under what was known as the Athearn ordinance. The common council had the power to pass that ordinance “ for the benefit of the trade and commerce ” of the city. Sec. 4, subch. 6, ch. 123, Laws of 1877; sec. 3, subch. 6, ch. 183, Laws of 1883. Of course, the city had no power to authorize any permanent obstruction or interference with the free passage or travel upon the streets and public alleys. Hume v. Mayor, 74 N. Y. 264; Cohen v. Mayor, 33 Hun, 404; S. C. 30 Alb. L. J. 443. Such obstruction or interference was expressly prohibited by the statute quoted. That ordinance did not attempt to give such au
TTor does the question arise whether the city could .legally authorize such an occupation of the streets and public alleys against the will or consent of the abutting owners, for the simple reason that the city did not, by that ordinance, undertake to give such authority. It only undertook to authorize “ so far as the rights of said city were concerned.” Whether such occupancy was an additional burden upon the highway, for which abutting owners might have exacted compensation, is a question upon which the courts are divided. The supreme court of Illinois has held that in the case of telegraph companies it was. Board of Trade Tel. Co. v. Barnett, 107 Ill. 507; S. C. 29 Alb. L. J. 92. In Massachusetts the contrary doctrine has been held by a divided court. Pierce v. Drew, 136 Mass. 75. As the question is not here squarely involved we express no opinion upon it; nor as to whether the statute has given to telephone or telegraph companies the right of eminent domain.
Undoubtedly the common council, under the charter, had the right to regulate, in order to guard and secure the public safety and convenience, but their regulations, to be valid, should have been reasonable and fair, and not have gone to the extent of confiscation, nor of wholly excluding the plaintiff from the city. American U. Tel. Co. v. Harrison,
By the Court.— The order of the circuit court is affirmed.