The times. [volume] (Richmond, Va.) 1890-1903, 1898-02-02
The BELL TELEPHONE CASE,
Opinion Handed Down By Judge Simon
Ton In the Circuit court Of Appeals.
SENT BACK 10 The CIRCUIT COURT
Modincd-Justico BrswIey DIssents
from Portion of the Opinion.
Other Cases Disposed OF.


Circuit Cour, Of Appeals. yesterday AZ
toraoon handed down an opinion In the
case Of the city OF Richmond against the
southern Ben Telephone and Telegraph
Company, IN which. after reviewing the
case. he remands il TO the Circuit Court
Tor modification Of the injunction
against the city In accordance with the
principles laid down in his opinion. The
case has probably excited more interest
among the citizens than any for many
ycars. and has been closely contested
hy able counsel on either side. The full
text Of he opinion is as follows
TENT or THE OPINION.
city OF Richmond appellant. VS. South
'in Bel Telephone and Telegraph Com
ptny appellee. Appeal from The Circuit
court Of the United states for the East
,fn District OF virginia az Richmond.
Argued November l2 1880. Decided Feb
ruary J. 1895. Before simonton, Circuit
judge and brawlcy and Purnen. District
judges.
CHARLES V. Meredith for appellant. Hill
Carter. OF Leako a. Carter. and A. l..
Holiday OF stiles d Holiday Tor APP
pclleo.
S.monton. Circuit Judge:
This cuS' comes up on appeal from the
0ccrec OF the Circuit Court OF the United
N"' NAtN tf'tfANAA -~tN't'+NN W 81
Riria.
The complainant IL a corporation organ
lied under the laws of the state OF New
York as a telephone and telegraph COM
pany 10 IS engaged in the business OF a
telephone company and of constructing
ana operating telephone lines in and
through the states Of Virginia, West Viz
giniui North Carolina. South Carolina.
Georgia. Alabama and Florida. II has
maintained and operated for several
years I'll the apparatus necessary for
transmitting telephone messages Ina the
city OF Richmond Va, and has erected
and maintained along certain streets
and alleys OF said city numerous poles
and wires for this purpose.
The complainant company was incOr-
porated OF the nth December. 1879. In
1884 IL applied 20 the city Of Richmond
for authority 10 erect its poles and run
its wires along the streets and alleys of
said city. and by an ordinance passed 2lst
Juuc. lN>i mis- D PERMISSION was granted
as TO such routes as may be specified and
agreed on by resolution or resolutions
Of the Committee on Streets. from time
a. time, aud on the conditions and pro-
visions of the ordnance. These cOnd-
lions and provisions were that on any
route conceded by the Committee on
Streets and accepted by the company.
the poles should Doe so placed by the com
pany under the direction OF the City En-
sinter as 10 allow for the use or said
poles by the Fire Alarm and Police Telo-
P
of position 10 the city's wires. To fur
nsh telephone service TO the city at a
special reduction OF SO per year for each
station. No shade trees TO Oe disturbed
cut or damaged without the permission
Of the city Engineer and the consent OF
the owners Of the property In front OF
which the trees stand. All this work
30 be Ia every respect subject 10 the SUI
pcrvisiOn and control of the City En-
ginoer. The ordinance 20 be subject at
any time TO repeal such repeal 10 90
into effect twelve months after the pas
sage Of the repeating ordinance.
ON the 18TH of February. 1850. thy
Southern Bell Telephone and Telegraph
Company the complainant. accepted with
out reservation an Of the restrictions and
obligations Of the act of Congress. APP
proved 2ith July. ls66. entitled An act
10 aid IN the construction of telegraph
lines aud To- secure 10 the government
the use of the same for postal, military
and other purposes.
And thereupon. on 18th February. 1889
the Post Master General certified that
this acceptance was on file In the Post
Office Department. This act of Congress
81 in these words.
Section 5263 ANY telegraph company
now organized or which may hereafter
be organized under the laws of any State.
shall have the right 10 construct main
tain. and operate lines of telegraph
through ana over any portion of the pub
lie domain OF the United States over and
OF The United States. which have been
or may hereafter be declared such by
law. and over. under. or across the navi-
Eahle streams or waters of the United
states, but such lines of telegraph shall
be so constructed and maintained as not
20 obstruct the navigation of such
streams and waters. or Interfere. with
the ordinary travel on such military or
post roads"
Section 526S Before any telegraph
company shall exercise any Of the powers
or privileges conferred by law such com
pany shall file their written acceptance
win the Postmas ter-General of the re-
stficiions and obligations required by
THE ORDINANCE.
on lfth December. 1894. the CITY Coun-
cil Of Richmond ranealed the ordlnonce
OF 18th June. 1874. granting these privi-
Ictes TO me Southern Bell Telephone ana
Telegraph Company. 10 take eject tweIvs
months after its approval. And 10th
september 1895, the same CITY Council
passed another ordinance as 10 the Joint
use or poles erected in the streets and
aiIeys OF the city or Richmond for the
support OF wires used in connection with
ihe transmission Of electricity
Tho hrst section of this ordinance pro
Ndes that al poles now erected in the
streets or alleys Of the city Of Richmond
for electric wires except such as enn-
port wires required by city ordinances Ia
DO removed ana run I'm cOnduits shall
thereafter be allowed 10 remain only ON
terms and conditions hereinafter SET
forth O'
The second section provides that no nolo
now erected Tor the support of telephone
wires shall remain on any street in said
city after 18th December 1906 unless the
owner or user of such pole shall first
have pctitioncd for and obtained the priv
ilege OF erecting and maintaining poles
Tor telephone purposes I'm accordance with
the conditions of this ordinance and srcb
others as Council may see III 10 iInDosc
II such owner fail 20 obtain such privi-
lcge and fail or neglect to remove the
poles and restore the street 10 its former
condition. he shall be liable TO a fine
not more than $500 and not less than 500
for every pole 50 remaining Each days
failure 70 be separate offence. Then
follows number Of sections imposing
most stringent conditions. placing the
whole matter within the control OF the
city and It's officers rcscrving the right
IN the city Council al any time to nut
other restrictions and regulations as to
the erection and use Of such poles and
from time 70 time 10 require the removal
Of them and the wires 10 be run In con-
duits. On 10th September 1895 another
ordinance was passed requiring the re-
moval OF poles and wires from overhead
in certain streets and for the construc-
ton and using cOnduits I'm certain streets.
This ordinance was enforceable under
heavy penalties with the provision also
that any company getting the privilege
OF putting In these cOnduits must make
them 10 per cent larger than is needed
for their use so that the city might run
SIS wires free IN such condusts and any
agreed compensation. or one 90 be fixed
bv arbitratOrs.
Threats having been made TO carry
ordinances into orect. the complainant