The Majestic/Opinion of the Court

We are urged in the argument for the plaintiff in error to convict the circuit court of error in holding that a contract existed between the city and telegraph company, which contract would be impaired by the ordinance imposing a charge upon the company for maintaining its poles upon the streets, and in holding that said ordinance was void, because unreasonable and oppressive.

But, in the view that we take of this record, those questions are not presented for our determination. The case was tried by the court without a jury, and the record shows simply a general finding and a rendition of judgment in favor of the defendant. There is no special finding of facts, and therefore inquiry in this court must be limited to the sufficiency of the complaint, and the rulings, if any be preserved, on questions of law arising during the trial. In such cases a bill of exceptions cannot be used to bring up the whole testimony for review, any more than in a trial by jury. Norris v. Jackson, 9 Wall. 128; Lehnen v. Dickson, 148 U.S. 72, 13 Sup. Ct. 481.

When all the evidence had been adduced in the case, the plaintiff asked the court to declare the law to be as follows:

'The court declares the law to be that, under the pleadings and evidence herein, ordinance No. 11,604 [which was the ordinance which granted the company the right to maintain its poles upon condition that the city should occupy the top cross-bar free of charge] is not a contract between the plaintiff and defendant, but is simply a municipal regulation, which the city has a right to change at any time it sees fit; and that ordinance No. 12,783 [which was the ordinance imposing the charge of five dollars per pole annually] is a valid ordinance regulation, and that the defendant is bound thereby.'

'The court declares the law to be that upon the pleadings and evidence in this case ordinance No. 12,733 is a valid ordinance, and is not void as being unreasonable, oppressive or unjust.'

'The court declares the law to be that upon the pleadings and evidence in this case the plaintiff is entitled to recover from the defendant the sum of $22,635, with interest thereon at the rate of six per cent. from the 7th day of April, 1888.'

The refusal of the court so to hold was excepted to, and is assigned for error. But these were rulings which involved a determination of facts, and as those facts are not found for us by a special finding by the court, and as the evidence which developed the facts is not brought to our notice by exception to its competency or relevancy, no questions of law are presented for our review.

It is true that an agreed statement of facts was stipulated into the record of the case from the former trial; but additional evidence was introduced at this trial, and the prayers were based on the entire evidence.

It was said in Grayson v. Lynch, 163 U.S. 472, 16 Sup. Ct. 1066, that: 'This court has held in a series of cases that the special findings of facts referred to in the acts allowing parties to submit issues of fact in civil cases to be tried and determined by the court, is not a mere report of the evidence, but a finding of those ultimate facts upon which the law must determine the rights of the parties; and, if the findings of facts be general, only such rulings of the court in the progress of the trial can be reviewed as are presented by a bill of exceptions, and that in such case a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury.' Norris v. Jackson, 9 Wall. 125; Dirst v. Morris, 14 Wall. 484; Borgher v. Insurance Co., 103 U.S. 95; Lehnen v. Dickson, 148 U.S. 72, 13 Sup. Ct. 481.

The judgment of the circuit court is accordingly affirmed.