Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1893-04-07

ago.
The right Of the public is u pass
through or over the streets or othe
highways, but not to occupy them,
any portion Of them, permanently. Th
law on this subject has just been dc
clared b. the supreme court of the
United States in the case Of the city or
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 50 for each and every tele
graph and telephone pole erected or
used by 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 We're established
pOstrOads of the United States under
the laws Of congress- and that the com
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-
uonal
The lower court decided in favor of
the company, but the United States SUI
preme court has reversed that judS
no
trial. In its 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 Il rental for the use
Of prnptrty 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 il il tax The revenues of IL mu-
nicip;ill1y may come from rentals us
Iegitinatcly and us properly rs from
taxes. Passing then to the city's right
to collect rentals for the use of streets
and public places, iii" court says:
And mere, first, it may be wen to
consider the nature OF the use which is
=,
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 and permanent one, and not
one temporary. shifting, aud i'll common
with the general public The ordinary
traveller, whether on foot or in vehicle
tn .lIn Str a,,I
his usc and occupation thereof are tenn
por:lry. 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 Il use open equally
to citizens of other states with those
of the state i'll which the street is sit
uate. But the use made by the tele
graph company is, in respect to so much
OF the space rs it occupies with its pole
permanent and exclusive 1t as effect
ually and permanently dispossesses TIN
general public as ii it had deStroye,
that amount of ground. Whatever ben
cfit the public may receive in the way
Of transportation of messages, tina
space Is, 50 FAR rs respects its actIIa
use for purposes of Il 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 fo
general use for purposes of travel "a
urely appropriated to the separate uSt
OF companies and for the transporta
ton of messages. = Now
when there is this permanent and ex
elusive appropriation of 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
Dieds Obviously not. Suppose 4 mu
inequality permits one TO occupy spac
IN public park, for the erection Of
booth in which to sell fruit and otllc
articles, who would question the RICH
of the city TO charge for the use of tn
ground thus occupied. or call Sucl
charge tax, or anything else eNccp
rental: So, i'll like manner, while per
mission to telegraph company to oc
cupy the streets is not technically
1eaS", aud does not in terms create thu
relation Of landlord and tenant, vet
: tht giving of the exclusive use o
real estate, for which the civer has a
1Git 70 exact compensation which
is Ill The nature of rental"
With regard to the company's claim
to exemption because occupying post
road under authority of congress. tn
court says it is a mistake to suppose
that tAe franchise or privilege granted
by congress carries with it the unre
strlcted right TO Appropriate the public
property of a state. 1t is. like any other
franchise. TO be exercised in subor,lina
ton to public and to private rights.
The company further claimed that |
under al ordinance passed previous to
that imposing the annual charge. tho
city OF St Louis contracted with tn |
western Union to permit the erection |
OF poles III consideration of the right o |
the city TO occupy and use the top cross
arm OF any pole for its own telegraph
purposes free of charge In referencel
to this, the court comedies that grant
OF authority when accepted and acted
upon. becomes an irreyocable contractl
and that the city is powerless to set it'll
aside or to interpolate new or more
Onerous conditions therein; but thel
difficulty of the application of this
doctrine in the present case was thatI
there was nothing to show that singleI
pole was erected under or by virtue OIL