#### The State of Iowa, Appellant, v. The Nebraska Telephone Company.

1 Telephones: extension of lines: statutes. Where a telephone company had constructed its lines along the streets of a city under the authority of the Code of 1873, its right to occupy the streets and extend its lines to meet the demands of the public is unaffected by the revision of 1897, unless the original acceptance of the grant limited its right in that regard.

2 Quo warranto: constitutional law. The question of the unconstitutionality of section 1324 of the Code of 1873, because failing to provide compensation to abutting land owners for the construction of telephone lines along public highways, will not be considered in a *quo warranto*proceeding by the State, only, to oust the company from the streets of a city.

3 Quo warranto: ordinances. An ordinance granting a franchise, which a city had power to pass, will not be declared void in a *quo warranto*proceeding because of an' irregularity in its passage.

4 Ordinances: title. The title of an ordinance reciting that its object was to “ grant certain rights and privileges to a certain telephone company,” was sufficient to carry a grant of a right to use the streets and alleys of the city for its lines. *195Passage of ordinances. Where five of the six councilmen and the

5 mayor were present, and the record shows that on an “ aye ” and “ nay ” call there were five votes for the passage of an ordinance and none against, omission of the record to state-, the name of each member with his vote was not fatal to the.adoption of the ordinance.

*Appeal from Pottawattamie District Court.*— HoN. A. B. Thoenell, Judge.

Wednesday, April 5, 1905.

Action of *quo wmrcmto*to oust the defendant from the streets and alleys of the city of Council Bluffs, and from the public highways of the county of Pottawattamie generally. The original petition alleged that the defendant had no franchise from the city, and was occupying its streets without right or authority of law. In an amendment to the petition it was alleged that “ since October 1, 1897, the defendant had, without right or authority, built its lines in streets where prior to that date it had none, and that these lines obstructed the streets and were nuisances, and that the defendant has, without right or authority, constructed telephone lines ” in the public highways generally in Pottawat-tamie county. The defendant pleaded the right to occupy the streets of the city and the rural roads under the general statute as it stood prior to the Code of 1891 and that the city of Council Bluffs had on the 8th day of October, 1888, by ordinance, granted to the defendant the right to occupy its streets for the purpose of carrying on a general telephone business in said city. A reply was filed, alleging that the grant by the city was void because of irregularities in the passage of the ordinance. There was a trial, and a judgment for the defendant. The State *appeals.*

Affirmed.

*W. H. Killpach*and *Emmet*Tinley, for the State.

*S. B. Wadswerth*and *W. W.*Morsman, for appellee.

*196Sheewin, C. J.

1. Telephones: extension of lines; statutes. Section 1324 of the Code of 1873, as amended by chapter 104, page 100, of tbe Laws of tbe Nineteenth General Assembly, g’ave to any person or company the right to construct a telegraph or telephone line along the public highways of the State; and, under the authority so given, the defendant had the right to occupy the streets and alleys of the city as well as the rural highways or roads. *Chamberlain v. Iowa Telephone Co.,*119 Iowa, 619; *State v. City of Red Lodge,*(Mont.) 76 Pac. Rec. 758. In the Code of 1897 the words “ public roads ” are used in the place of the words *“*public highways,” used in the former statutes; and, as we understand-the appellant’s argument, it is claimed that the change limits the defendant’s right in the streets of the city to those actually occupied by it prior thereto. Whether the change was intended to distinguish between streets and rural ways, we need not determine, for, whatever the intent as to that, it is apparent that the change was not intended to, and does not, limit or affect the rights of those who accepted and acted upon -the grant given by the former statutes. The grant to use the streets was without limitation as to territory, and under its authority there can be no question as to the right to extend the service to meet the demands of the public. The very nature of the business demands the use of many streets, and may demand the use of every street in the city, and this was doubtless contemplated by the Legislature when the unlimited grant was made. *Chamberlain v. Telephone Co., supra; Duluth v. Duluth Telephone Co.,*84 Minn. 486. True it is that the acceptance of the grant may limit its operation, but, in the absence of an acceptance which does so, it must be presumed, from the nature of the business and the preparation made therefor, that the acceptance of the grant and the privileges thereunder was as broad as the grant itself, and included the right to extend the service as required by public necessity. *Duluth v. Duluth T. Co., supra; Michigan*
      *197
      *Telephone Co. v. City of Benton Harbor,*121 Mich. 512 (80 N. W. Rep. 386, 47 L. R. A. 104).

2. Quo warranto: constitutional law. It is suggested that the statute imposes an additional burden on rural ways, without providing compensation to the abutting landowners, and is for that reason unconstitu2. tional. But whatever rights the abutting ownwarranto: ers may have are private and personal rights, in which the State has no concern, and no landowner is here complaining. It is fundamental that the court will not consider constitutional questions unless it be necessary, and it is clear that the necessity therefor does not exist when no constitutional rights are involved. Cooley’s Constitutional Limitations (6th Ed.) 196, 197.

3. Quo warranto: ordinances. It is contended also that the ordinance of 1888 is void because it contained more than one subject, because its purpose was not clearly expressed in its title, and because it was not passed as required by the statute. It is not contended that the city did not have power .to pass the ordinance, nor do we think such contention could be sustained if made; and, if it be conceded that it had such power, the ordinance will not be declared void in a *quo wm-ranto*proceeding. *State ex rel. v. City of Lyons,*31 Iowa, 432; *People v. Mutual Gas Co.,*38 Mich. 154; *People v. Ft. Wayne & E. Ry. Co.,*92 Mich. 522 (52 N. W. Rep. 1010, 16 L. R. A. 752).

*4.*Ordinances: title. But aside from this, we think the objections to the ordinance are without merit, and that there was no fatal informality in its passage. As stated in its title, its object was 1° grant certain rights and privileges to the defendant company, and this clearly and certainly suggested that the grant was of the use of the streets. The penal section merely protected the grant, and was germane to the principal object of the. ordinance. *Dempsey v. Burlington,*66 Iowa, 687; *Boggs v. School Tp.*(Iowa) 102 N. W. 796.

*198
      5. Passage of ordinances.
      *197The mayor and five of the six councilmen were present *198when tbe ordinance was passed. Tbe record of tbe meeting gives tbeir names, and recites tbat tbe ordinance was passed 011 ca^ *“*ayes anc^ n£>ys,” and tbat there we £ve ¥0.-);68 for its passage, and none against it. As tbe record shows clearly who was present at tbe meeting, and tbat all of tbe members present voted for the ordinance, we think there is no merit in tbe claim tbat it was fatal to omit to record tbe name of each member, with his vote. *Marion Water Co. v. City of*Marion, 121 Iowa, 306.

There was a sufficient and timely acceptance of tbe grant.

Other questions are discussed by tbe appellee, but, as they are not presented by tbe appellant’s argument, we refrain from expressing our views thereon..

. Tbe judgment is right, and it is *affirmed.*