City of Owensboro v. Cumberland Telephone & Telegraph Company

This case involves the nature and duration of the right of the telephone company to maintain its poles and wires upon the streets of the city of Owensboro. The ordinance under which it, or its predecessors in right, title, and property, have maintained a telephone system in the city of Owensboro, was passed on December 4, 1889. Inasmuch as it contains several provisions which require consideration, it is set out in full in the margin.

Council Proceedings Dec. 4th, 1889.

Minute Book 'F,' Page 157.

The following ordinance, after being twice read, was enacted by the following vote, to wit.: Ayes, Mes. Borer, Brotherton, Vargeson, Cullon, Higdon, Decker, Noes, None. Viz.:

Be it ordained by the Mayor and Common Council of Owensboro, Ky.:

That the Cumberland Telephone Company, its successors and assigns, is authorized and hereby granted the right to erect and maintain upon the public streets and alleys of said city any number of telephone poles of proper size, straight and shaved, smooth, set plumb and set erect, and any number of wires thereon with the right to connect such wires with the building when telephone stations are established, provided that such poles shall be located and kept so as not to interfere with the travel upon said streets or alleys or the substantial use thereof by the inhabitants of said city.

Sec. 2. That the said Cumberland Telephone Company shall erect only one line of poles on a street, except for the length of one block upon the street upon which the exchange building may be located, and where the wires of said company enter such exchange building the said company shall have the right to erect and maintain its poles on both sides of such street, and the lowest wire of said telephone company shall not be less than twenty-five feet from the ground, except where such wires enter the exchange building or telephone stations.

Nothing in this ordinance contained shall be construed as an exclusive right to said company to erect and maintain said poles upon the streets and alleys of said city, and no obstruction shall be placed by said company to the erection and maintenance of poles by any other person or company. Such company shall enjoy such rights in common with all other persons or companies to whom said city may see proper to extend the same right.

Sec. 3. The said telephone company shall repair all streets and alleys it may enter upon and use for the purpose herein provided, which by the acts of said company or persons in its employ shall have become injured or damaged or been made unsafe.

All proper precautions and safeguards shall be used to prevent such use from becoming either injurious or annoying to the inhabitants of said city, and should any damage or injury result to any person or property by reason of the erection and maintenance of such poles, or the failure to keep the streets and alleys in repair as herein required, and said city shall be held liable by reason thereof, such company shall pay all damages and costs resulting therefrom to the parties injured, or to the city, if paid by her.

The grantee under that ordinance at once proceeded to erect its plant and to place its poles and wires upon the streets, and it and its successors and assigns have ever since maintained and operated a telephone system. The city has used the company's poles for the maintenance of its fire alarm service, and has had the benefit of a free public telephone service for municipal purposes.

In January, 1909, the city council passed an ordinance requiring the telephone company to remove from its streets and alleys all of the poles and wires 'within a reasonable time after the passage of the ordinance,' and, upon failure to so remove, the mayor was directed to have them removed. This was, however, subject to a provision 'that said company shall have the right to purchase from the said city a franchise authorizing it to maintain said poles and wires and use same as provided under the laws of the state, upon proper conditions, to be prescribed by an ordinance, to be passed upon request of said company to the common council of said city.'

This bill was filed for the purpose of enjoining the enforcement of this ordinance, the contention being that it was an impairment of the company's contractual property rights in the streets, and, as such, in contravention of the contract and due-process clauses of the Constitution of the United States. Upon a final hearing the court below sustained the bill, and permanently enjoined the enforcement of the repealing ordinance.

Messrs. R. S. Todd and George W. Jolly for appellant.

[Argument of Counsel from pages 62-64 intentionally omitted]

Messrs. William L. Granbury, Clarence M. Finn, and Hunt Chipley for appellee.

Statement by Mr. Justice Lurton:

Mr. Justice Lurton, after making the foregoing statement, delivered the opinion of the court: