Town of New Decatur v. American Telephone & Telegraph Co.

SAYRE, J.—

(concurring.) — In view of some differences among the members of the court in respect to the law of the case I prefer to state the reasons for my opinion that the decree should be affirmed.

In 1898 the town of New Decatur adopted an ordinance granting to the American Telephone & Telegraph Company, a corporation organized under the laws of the state of New York, its successors and assigns, the right to construct, operate, and maintain lines of telephone and telegraph, including the necessary poles, wires, and fixtures, upon, along, and under the highways of the town. Conditions of the grant were that all poles should be neat, straight, and symmetrical, and so located as not to interfere with the public use of *551the highways, and, further, that the company should be subject to all ordinances then in force or that might thereafter he passed “relative to the use of the public highways of the said town.” Section 4 of the ordinance provided that: “In consideration of the rights and privileges herein granted, said company shall furnish free of cost to said town space for its fire alarm and police wires upon all poles erected under this ordinance.” Acting on this ordinance, the company erected lines of wires, and operated a system of telephones. In 1902 the rights acquired under this ordinance were transferred and assigned to an Alabama corporation of the same name, the complainant below, appellee here. March 14, 1904, the board of aldermen passed an ordinance repealing and annulling the ordinance granting the franchise, and on May 3d thereafter passed another ordinance requiring appellee corporations to remove all poles, wires, and other property from the streets, and providing that, on a failure of the telephone company to remove its poles, wires, and other property within 30 days, the same should be considered a nuisance, and the company’s officers, agents, and employees dealt with as other parties maintaining a nuisance. Thereafter the Telephone Company filed its bill, averring, in detail, the facts above set forth, and, further, that it had erected and equipped its telephone system at an expense of $20,000, comprising 20 miles of poles in 38 different streets, avenues, and alleys in said town, its poles being set just inside- the curbing so as to impair in no wise materially the public convenience or travel, and praying that the last-mentioned ordinances be declared null and void, and the defendant municipality be enjoined from interfering with its property. The court beloAV overruled a demurrer to the bill, and made a similar order in response to defendant’s motion *552to dissolve an interlocutory injunction which had been granted. This appeal followed.

As for the meaning of that provision of the Constitution of 1875, of force at the time this franchise was granted, inhibiting laws making irrevocable grants of special privileges or immunities, that has been settled by the decisions of this court. In the case of Birmingham Railway Companies, 79 Ala. 465, 58 Am. Rep. 615, it was-said that the evil intended to be specially prevented was the legislative granting of exclusive privileges in the nature of monopolies. The language of the opinion is: “What, it may be asked, is the nature of these special or exclusive privileges which are thus prohibited to be granted by the Legislature? It seems plain from the very terms used that the evil intended to be specially prohibited was the granting of special privileges in the nature of a monopoly by the legislative creation of corporate franchises.” And on page 475 of 79 Ala. (58 Am. Rep. 615) : “The policy of the law, as now declared by our Constitution, is as clear in the condemnation of the grant of irrevocable exclusive privileges conferred by franchise as that of the common law was in the reprobation of pure monopolies.” The constitutional provision and the decision to which I have referred were correctly interpreted by the Supreme Court of the United States in Bienville Water Supply Co. v. Mobile, 186 U. S. 213, 22 Sup. Ct. 824, 46 L. Ed. 1132, where it was said, after referring to our case: “By a separate section of the Constitution, it is declared that the Legislature shall pass no act ‘making an irrevocable grant of special privileges or immunities.’ While that body may grant special privileges and immunities to build waterworks, construct railways, or other works of public utility, and by a failure to duplicate a grant make it in effect for the time being exclu*553sive, yet no Legislature can forestall action by a succeeding Legislature, or bind the state by making the grant in terms exclusive. As much force and effect must be give to section 23 as to any other, and it was obviously the intent that, even if exclusive privileges were granted, the monopoly feature thereof should always be subject to revocation.” To that section of the Constitution of 1875, to which I have referred, there was added in the Constitution of 1901 these words: “And every grant or franchise, privilege or immunity, shall forever remain subject to revocation, alteration or amendment.” This amendment was hardly intended to refer to grants of corporate charters, for to that purpose some of the language employed would be inapt, and that subject was dealt with and the right of revocation and amendment, in such manner, however, that no injustice shall be done to stockholders, was reserved in section 238 of the' Constitution of 1901 under the appropriate head of corporations just as in the Constitution of 1875 a like provision was placed under a like appropriate head. I would be slow to believe it was intended to reduce all future grants under which public utilities may be operated to the level of mere revocable licenses, dependent upon the pleasure or caprice of the granting power, and without any element of inviolable contract, thus, in effect, denying the right of the state and its subsidiary governmental agencies to contract in reference to franchises or rights to the use of the streets without which public utilities could not exist or render service. That would seem to involve a remarkable constitutional principle such as may not be found elsewhere in this country, and hardly to be expected in close context with a provision prohibiting the enactment of any law impairing the obligation of contracts. There is, however”, no occasion for saying just what this amendment does in*554tend, since the franchise in question antedates the Constitution of 1901. Every grant of a franchise or right to the use of the streets or highways for the transportation of persons, commodities, or intelligence is special and in a sense exclusive, for the instrumentalities necessary in carrying on the business must occupy space which cannot at the same time be occupied by the like instrumentalities of other persons, natural or artificial, who would engage in the same business. But, so far as the public is concerned, every such grant, is justified on the theory that the surrender to some extent of the previous right to the common use of the public property in its entirety is more than compensated by the substitution of other more valuable facilities, while, so far as concerns other persons or corporations who would save the public by exercising similar franchises, such grant of rights is not exclusive so long as the power to grant other similar franchises is reserved. This right to grant like franchises to others, without regard to the terms of previous grants, was reserved and secured in every case by the provision under consideration, and it became part and parcel of every contract granting franchises under the Constitution of 1875. Beyond that the provision did not go. It did not prohibit the grant of franchise's in perpetuity, nor did it reserve the right to revoke anything but the exclusive feature of franchises which might be granted in exclusive terms. The right to revoke the exclusive feature of a franchise it did, however, reserve, though the franchise may have taken the form of a contract upon valuable consideration. It has no application to the case in hand.

The language of the ordinance in this case was “that the American Telephone & Telegraph Company, its successors and assigns, be and the same is hereby granted the right, privilege and authority to construct, operate *555and maintain lines of telephone,” etc. This imported the grant of a right rather than mere privilege or license, nor is the right granted limited to the construction of lines for long distance service, as appellant would seem to infer. And, being without limitation as to duration, it was a grant in perpetuity, for the court cannot undertake to make a contract for the parties by assigning a term to the grant. In the Birmingham Railways Case, supra, the court spoke of a franchise, not limited as to duration, as a perpetuity. But as I read the decision, the franchise there ivas condemned, not because granted in perpetuity, but because it was exclusive. In Wabash Railroad Co. v. Defiance, 167 U. S. 88, 17 Sup. Ct. E48, 42 L. Ed. 87, where no particular length of time Avas prescribed, the court said: “The only contract as to time which could possibly be extracted from this ordinance would be that the railway company on building the bridges and approaches should be entitled to maintain them in perpetuity.” Counsel on either side cite a number of other cases adopting the same rule of interpretation as to contracts framed as this was in respect to duration. There is no language in the Constitution, or in the charter of New Decatur for that matter, prohibiting the grant of indefinite or perpetual franchises. In People v. O’Brien, 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684, Avbere the question was Avhether the franchise to maintain tracks and operate cars on Broadway, granted on a consideration other than the public good to be derived from the exercise of a franchise, survived the dissolution of the corporation, it Avas held, to quote the Supreme Court of the United States stating and approving the ruling in Detroit v. Detroit Ry. Co., 184 U. S. 368, 22 Sup. Ct. 410, 46 L. Ed. 592, “that a corporation, although created for a limited period, might acquire *556title in fee to property necessary for its use; and, where the grant to a corporation of the franchise to construct and operate its road in the streets of a city is not, by its terms, limited and revocable, the grant is in fee, vesting the- grantee with an interest in the street in perpetuity to the extent necessary for a street railroad.” Judge Dillon states his opinion (3 Mun. Corp. § 1265) of the New York decision as follows: “In the absence of language expressly limiting the estate or right of the company, we think the court correctly held under the legislation (making such interests taxable, inheritable, alienable, and subject to condemnation under the right of eminent domain, and vesting them with the attributes of property generally) and the facts, that the right created by the grant of the franchise was perpetual, and not for a limited term only. No other view is consistent with the long line of decisions to the effect that such rights are property rights which cannot be destroyed or impaired by legislative .enactment. These decisions have been-rendered upon the assumption that, when the grant has been made by legislative authority and accepted and acted on, it is beyond recall, and, except as it is subject to the exercise of the police power cannot thereafter be impaired by legislative enactment.” And in a slightly different connection (section 1268) he submits “that the term of an indefinite franchise is not necessarily limited by the corporate life of the grantee, but should be determined by the legislative intent as deduced from the statute fairly construed, or the intent of the contracting parties where the franchise results from a contract, express or implied, with a municipality.”

Municipal corporations, exercising a part of the sovereign power of the state by delegation, must be able to show legislative authority for the acts which they undertake to perform. A reasonable doubt will be re*557solved against the grant. “But the application of the rule must not be so stringent as to thwart the legislative intent, fairly and reasonably appearing.’’ — Ex parte Florence, 78 Ala. 419. Powers necessarily implied or incidental to the purposes and objects of the corporation AA’ill be regarded as conferred. The language of Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118, is: “Municipal corporations, it is obvious, can exercise only such poAvers as are expressly granted in their charters, and such as may be necessary and proper in order to carry such express or direct poAvers into effect; but these poAvers include those Avhich are indispensably necessary to the declared objects and germane to the governmental purpose for which such corporations may be organized.” This court held in Hobbs v. Long Distance Telephone Co., 147 Ala. 393, 41 South. 1003, 7 L. R. A. (N. S.) 87, 11 Ann. Cas. 461, that the construction of telephone and telepraph lines over public higliAvays imposes no additional burden, but that “it is accomplishing one of the great purposes for Avhich public roads are dedicated.” I cannot doubt that the general powers of a municipal corporation by which it is invested AA’ith the control and regulations of its streets and highAvays for the general good are adequate to authorize the construction, of the poAver to delegate the right to construct telephone lines consisting of poles and Avires for the transmission of intelligence. Section 7, subsec. 20, of the charter of New Decatur, gives poAver to regulate the use of the streets. — Acts 1888-89, p. 372. In St. Louis v. Western Union Telegraph Co., 149 U. S. 465, 13 Sup. Ct. 990, 37 L. Ed. 810, the Supreme Court of the United States had to say of the power to regulate the use of the streets of the city: “It is given poAver to open and establish streets, to improve them as it sees fit, and to regulate their use, paying for all *558this out of its own funds. The word ‘regulate’ is one of broad import. It is the word used in the federal Constitution to define the power of Congress over foreign and interstate commerce, and he who reads the many opinions of this court will perceive how broad and comprehensive it has been held to be. If the city gives a right to the use of the streets or public grounds, as it did by Ordinance No. 11604, it simply regulates the use of them when it prescribes the conditions and terms upon which they shall be used.” But, aside from any question as to the scope of its general power of regulation, the municipal corporation of the town of New Decatur seems to have had under its charter by necessary implication the power to grant franchises for the erection of poles and wires for telephone and telegraph lines. By section 7 of its charter, subsec. 23, it has power “to regulate the openings therein (in the streets) for the laying of gas or water mains and pipes and the building and repairing of sewers, culverts and drains, and erecting gas and electric lights, telegraph and telephone poles and wires.” — lb. True the power to regulate other public utilities, as ferries, street railways, wharves, waterworks, and establishments for furnishing gas and electricity for lighting and heating, are more specifically granted in other sections of the charter, and section 23 seems to be capable of the interpretation put upon it by counsel — -that is, it merely authorizes the municipality to regulate openings in the streets for telegraph and telephone poles and wires — but that is a narrow construction of the language of that section, and it would be almost incredible that the Legislature, preparing a scheme of government for a municipality of this day and time, intended to leave it powerless to provide for the uses of the electric telegraph and telephone. 1 think the language used sufficient to exclude such in*559tention, and that the municipality had power to grant the franchise in question.

The power to control the streets, the power exercised in the grant of this franchise, is legislative, but it may be and commonly is delegated to municipal corporations, and was so delegated in this case. But the authorities everywhere recognize the presence of the contractual element in franchises of this character when, accepted and acted on, no specific right of-revocation being reserved. On the other hand, the police power, the power to take ample care for the morals, health, safety, and convenience of the people cannot be bartered away. “The right to use a highway or street is taken, affected with the implied condition that the highway or street shall not be used in such manner as to destroy its proper and legitimate use by the public at all times.”— Grand Trunk Railway v. South Bend, 174 Ind. 203, 89 N. E. 885, 91 N. E. 809, where many cases are cited. The relation between inviolability of contracts and the police power in such cases was thus stated by Chief Justice Fuller: “The governmental power of self-protection cannot be contracted away, nor can the exercise of rights granted, nor the use of property, be withdrawn from the implied liability to governmental regulation in particulars essential to the preservation of the community from injury.” — N. Y. & N. E. R. R. v. Bristol, 151 U. S. 567, 14 Sup. Ct, 437, 38 L. Ed. 269. In the cases I have seen in which the contract rights of the grantees of franchises have been made to yield to the exercise of the police power some residuum of the original privilege has been preserved, as for example, in Railroad Company v. Richmond, 96 U. S. 521, 24 L. Ed. 734, where a steam railroad was required after 40 years to abandon the use of steam along a street; as in C., B. & Q. R. R. v. Nebraska, 170 U. S. 57, 18 *560Sup. Ct. 513, 42 L. Ed. 948, where a burden of repair, in excess of that stipulated in the original grant, was imposed on the railroad company; as in Wabash R. R. v. Defiance, 167 U. S. 88, 17 Sup. Ct. 748, 42 L. Ed. 87, and numerous other cases of like kind, where railroad' •companies were required to change the grade of their tracks; as.in Baltimore v. Baltimore Trust Co., 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160, where a street railroad company was restricted to the use of a single instead of a double track as originally granted; as in People v. Ellison, 188 N. Y. 523, 81 N. E. 447, where overhead wires were required to be removed to underground conduits; as in People v. Squire, 145 U. S. 175, 12 Sup. Ct. 880, 36 L. Ed. 666, where the expense of constructing the conduits and the expenses of a commission appointed to carry out the statute was imposed on the companies; and as in Jonesville v. Telephone Company, 155 Mich. 86, 118 N. W. 736, 130 Am. St. Rep. 562, 16 Ann. Cas. 439, where the poles ¿nd wires of public service corporation were excluded entirely from a particular street, it not appearing that the use of such street was necessary to reach persons desiring its service who would otherwise be.exit off therefrom. Out of these and many other cases Judge Dillon extracts a rule as follows: “These franchises are property which cannot be destroyed or taken from the grantee or rendered useless by the arbitrary act of the municipal authorities in preventing the grantee from using the city streets for the purposes of the grant, although the municipality may seek to justify such act as an exercise of the police power. Therefore any regulations adopted by virtue of the exercise of the police power must be such as are called for by a fair consideration of the public welfare, must be reasonable in their character, and must not be such as to defeat *561tlie purpose of the grant.” — 3 Mun. Oorp. § 1269. Clearly the judgments in the cases to which I have referred imposed new and heavy burdens and obligations upon the grantees of the franchises involved. But the police power is paramount, and, if its integrity as an inalienable poAver of government is to be preserved, I cannot see why the use of the streets by public utilities, though once granted, and though the grant was proper at the time, may not be denied altogether whenever conditions are' so changed by crowding populations that such extreme alternatiAre becomes necessary to preserve for all the people those uses to which the streets were primarily dedicated. Such a rule would give protection to every right acquired in the beginning, and would prevent their impairment by arbitrary or capricious action. Such seems to. be the rule recognized in the case of Mobile v. L. & N. R. R. Co., 84 Ala. 115, 4 South. 106, 5 Am. St. Rep. 342, Avhere it was said that the railroad company Avas possessed of an irrevocable franchise, conferred by the city ordinance, subject to the limitation only that the use of the street by the public should not be unnecessarily or materially impaired. I take this to be the meaning, also, of St. Paul v. C., M. & S. P. R. R., 63 Minn. 330, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458, 34 L. R. A. 184, where it was said: “And grant of priveleges upon lands dedicated to a particular public use is necessarily subject and subordinate to the rights and necessities of the public, and may always be revoked and terminated whenever required by the needs of the public in the use of it for the purpose for AA’hich it. was dedicated. This is an implied condition of every such grant, for there can be no irrevocable license as against the rights of the public to the full enjoyment of its easement in the property.”

*562That section of the ordinance by which it was provided that the grantee should have and exercise the right or privilege granted subject to all ordinances then in force, or that might thereafter be passed relative to the use of the public highways of the town, cannot be construed as the reservation of a right in the council to revoke at pleasure. That was a reservation of the right to regulate, not to destroy. — Detroit v. Detroit Ry. Co., 184 U. S. 384, 22 Sup. Ct. 410, 46 L. Ed. 592. Concluding an elaborate note in review of the authorities on the general question here involved, the editor of. the Lawyer’s Reports Annotated says: “The conclusion from all the authorities seems to be clear to the effect that a franchise or privilege to use streets for any of various quasi public purposes above considered will constitute an irrevocable contract, unless there is in some form a clear reservation of the right to cancel or revoke.” — Clarksburg Electric Light Co. v. Clarksburg, 47 W. Va. 739, 35 S. E. 994, 50 L. R. A. 142.

The course of the municipality cannot be justified on the facts stated in the bill. The ordinances complained of cannot be taken as an effectual judgment of forfeiture of appellee’s franchise for abuse or misuse, though it was doubtless so intended. That would require judicial proceedings. Nor were they a legitimate exercise of the police power. “The public necessity of the exercise of the police power in any case is a matter addressed to the discretion of the Legislature, but whether a given regulation is a reasonable restriction upon personal rights is a judicial question.” — Tiedman on Police Power, § 214. And the presumption is in favor of the reasonableness of -the ordinance condemning appellee’s poles and wires as a nuisance. — Van Hook v. Selma, 70 Ala. 361, 45 Am. Rep. 85; Grand Trunk Railway v. South Bend, 174 Ind. 203, 89 N. E. 885, 91 N. *563E. 809. Conceivably all the appellee’s 20 miles of poles and wires on 38 different streets had become a menace to the safety of the public, and in that case the municipality Avould have had the right to condemn and remove them Avithout affecting appellee’s right to the proper use of its franchise. But I think it appears Avith reasonable certainty that the theory on which the board of aldermen proceeded takes their action Avithout the range of legitimate power and Avithout the saving of favorable presumption. The bill excludes the idea that appellee’s lines were so constructed as to interfere with the purposes of travel and transportation to which primarily the streets were dedicated by averring, as already stated, that they were erected on the inside of the curbing so as in no wise to impair materially public convenience or travel. The ordinance of March 14, 1904, undertook to repeal the ordinance granting the franchise. Upon the heels of that another ordinance declared, not that the wires and poles Avere a nuisance in fact, but, in effect, that they would become a nuisance unless removed Avithin 30 days. Nor was any other means or method by AAThich appellee might exercise its franchise provided. The clear purposes and effect, then, of what was done, was to declare the appellee’s property a nuisance for the reason that, its franchise having been annulled, appellee had no right to have its poles and wires upon the streets in any shape or place Avhatever. These ordinances Avere beyond the power of the board of aldermen, and their attempt to enforce obedience to their pronunciamento was properly enjoined.