Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1893-04-06

The right Of the public is TO pass
through or over the streets on Othc
highways, but not to occupy them,
any portion Of them, permanently. Th
law on this subject has just been de
clared b. the supreme court Of the
United States in the case of the city OF
ST. Louis against the Western Union
Telegraph company. The case arose
under an ordinance of the city providing
that from and after the first day of
July, 1884, all telegraph and telephone
companies, which are not by ordinance
taxed on their gross income for city
purposes, shall pay to the city of ST.
Louis, for the privilege of using the
streets, alleys and public places thereof
the sum of So for each and every tele
graph and telephone pole erected or
used 10y them in the streets, alleys and
public places in said city"
The Western Union refused to pay
on the ground that the streets and pub
lie places Of st. Louis were established
post-rOads of the United States under
the laws of congress, and that the com
pany operated its lines under those
laws. 1t contended, moreover, that
the sum demanded by the city was Il
tax for the privilege of carrying on its
business, and was therefore uncOnstitu-
tiOnal.
The lower court decided in favor of
the company, but the United States SUI
preme court has reversed that judg-
ment and remanded the case for new
trial. IN it's opinion which was delivered
by Justice Brewer, the supreme court
holds that the charge imposed was
clearly no tax for privilege or license
but in the nature of a rental for the use
of property belonging to the city That
the city receives something which it
may use as Il revenue, does not deter
mine the character of the charge or
make it Il tax. The revenues Of Il mU-
nicipality may come from rentals us
legitimateIy and as properly AS from
taxes. Passing then to the city's right
to collect rentals for the use of streets
and public places, the court says:
And here, hrst, it may be we'll to
consider the nature of the use which is
made by the defendant of the streets,
and the general power of the public to
exact compensation for the use of
streets and roads. The use which the
defendant makes of the streets is an
exclusive ana permanent one, and not
one temporary, shifting, and in common
with the general public. The ordinary
traveller, whether on foot or in vehicle
4
his use and occupation thereof are TEN
porary. The space he occupie
one moment he abandonS the next to
be occupied by any other traveller
This use is common to all members of
the public, and it is a use open equally
to citizens of other states with those
OF the state in which the street is sit
uate. But the use made by the tele
graph company is, in respect to so much
OF the space Us it occupies with its pole
permanent and exclusive. 1t as effect
ually and permanently dispOssesses tn,
general public as if it had destroyed
that amount of ground. Whatever ben
eft the public may receive in the way
of transportation of messages tha
space is, so far as respects it's actua
use for purposes of highway and per
sonal travel, wholly lost to the public
By sufficient multiplication of telegraph
and telephone companies the whole
space of the highway might be occu
pied and that which was designed TO
general use Tor purposes of travel ca
drely appropriated to the separate ust
of
ton of messages. = Now
when there is this permanent and eX
elusive appropriation of Il part of tn,
highway, is there in the nature of thing
anything to inhibit the public from eN
acting rental for the space thus occu
ped? Obviously not. Suppose Il mu
nicipality permits one to occupy spac
III Il public park, for the erection of
booth in which to sell fruit and othe
articles, who would question the RICH
of the city to charge for the use of til
ground thus occupied, or call Sucl
charge tax, or anything else exccp
rental! So in like manner, while per
mission to Il telegraph company to oc
cupy the streets is not technically
relation of landlord and tenant. vet
5 the giving of the exclusive use O.
real estate, for which the Civer has Il
right to exact compensation, which
is i'll the nature of rental
With regard to the company's claim
10 exemption because occupying Il post
road under authority of congress, tn
court says it is a mistake to suppose
that the franchise or privilege granted
by congress carries with it the unre
strtcted right to Appropriate the public
property of state. 1t is, like any other
franchise, TO be exercised in subordina
ton to public and to private rights
The company further claimed that
under an ordinance passed previous to
that imposing the annual charge. the
city OF st. Louis contracted with III
Western Union to permit the erection
Of poles in consideration of the right 0
the city to occupy and use the top cross
arm of any pole for it's own telegraph
purposes free of charge. In reference
to this, the court comedies that a grant
Of authority when accepted and acted
upon, becomes an irrevocable contract
aside or to interpolate new or more
onerOus conditions therein; but the
difficulty of the application of this
doctrine in the present case was that
there was nothing to show that single
pole was erected under or by virtue of