The times. [volume] (Richmond, Va.) 1890-1903, 1898-02-02

/ ~ expressed IN luke VI. ttntfhi ~ -
| Telephone Company. SO y. j. Law Re-
| ports, 34i. The court quotes the Ian
| guage OF Bell in his application for
patent. set out in the Telephone Cases
| l2G u. s., /. lie says: What claim
IL the method or an apparatus for trans
hitting vocal or other sounds telegraph
Cally as herein described. by causing cleo
| trical undulations similar in form TO the
vibrations OF air accompanying said Vo-
cal sounds"
And so also Brown. j.. now Mr.. Justice
Brown. in Cumberland Telephone ana
Telegraph Company VS.. United Electric
Railway Company. ~ Fed. Rep, 213, says:
I'VE see no reason TO doubt the position
assumed by the complainant that tele-
phone company Is a telegraph company.
The complainant. therefore. comes with
in the protection. and is entitled to the
privileges of the act of 1866
2.
The next question S. II the complainant
Is within the protection and enjoys the
privileges Of the act OF Congress of lSt5,
how far has II limited and restricted IT.
self by accepting the provisions OF the
ordinance of the city Of Richmond
In June 1854. the ordinance was passed
granting the right OF way throughout the
city OF Richmond TO this complainant.
At that time 1t had not accepted the
provisions of the act OF 1866 and In no
other way could II get the right 10 enter
the city but by permission Of the CITY
icct to the right OF the CITY Council 10
revoke IL at any time after twelve months
and on nth December. 1884. II was re-
voked. In the meantime, 1859. the COM
plainant, recognizing the uncertainty OF
ITS tenure. concluded to put the enjoy
mcnt OF its rights on higher grounds ara
under paramount authority. can IL now
be said that the complainant cannot avail
itself Of the privileges OF tho act OF
lsG6. and must look for them 10 the city
Council because formerly the city grant
ed privileges which Il has revoked Can
a contract revocable and revoked by
one party still bind the other party after
its revocation?
The complainant Is not now using the
post roads of the city of Richmond I'M
der any grant from the city Council.
The council themselves by their own act.
have put an end TO any such contract with
the complainant. But for the act Of
Congress, II would be trespasser on
these post roads. Under the act OF
Congress, IL has the right TO construct.
maintain and operate lines Of telegraph
over and along any Of the postroads Of
the United States. and when an effort is
made. or threatened TO deal with it AS
trespasser, it can refer to that act.
3.
The next question is: To what extent
does the protection Of the act Of Con-
gress 60. Does II free the company
accepting its provisions from any con-
troll Of the municipality through whose
streets it may go?
TO WHAT EXTENT.
This act Of 1866 authorizes the company
accepting its provisions to maintain and
operate its lines on any postroad. The
act Itself prescribes a condition. The
lines of telegraph must not interfere with
the ordinary travel Ii is. therefore sub
ordinate to the public use. The privi-
leges Of this act, like any other fran
chise, are to be exercised in subordina-
ton to public as TO private rights (St.
Louis VS.. Western Union Telegraph Com
pany, 14S Il. s., 1907 These privileges
must be enjoyed subject to the lawful
exercise of the police power. In West
ern Union Telegraph Company VS.. Mas
sachusetts, 125 L. s., $50. a telegraph
company. projected by the act of 1866,
and engaged In business as "a common
carrier. was held to be subject Of tax
alton by State. The Supreme Court
uses this language: at never could have
been intended by the Congress Of the
United States, I'm comforting upon a cor
poration Of one State the authority 10
enter the territory Of any other State and
erect poles and lines therein. TO establish
the proposition that such company owed
no obedience to the laws OF the State into
which ii thus entered"
In the case Of ST. Louis VS.. Western
Union Telegraph Company supra o
charge by a city for poles was held valid
against this same company. the only lin
itation being that the charge be not un-
reasonable In Western Union Tele-
graph Company VS.. The Mayor. Law
Reports Ann. 4i9 an ordinance requiring
that telegraph wires be placed in con-
Quits was sustained. Streets and alleys
in city are the public property placed
under the supervision and control Of
the municipality. the representative OF
the sovereign power They exercise
this supervision and control for the ben
eft Of the whole public. those living upon
and those passing through such streets
and alleys. And in the exercise of this
supervision. which Is the police power.
they must see To ii that the rights Of the
public and of private persons are not
infrnged.
The complainant. under the act Of Con-
gress. has the right 10 use these high
ways. Neither the State nor any NUM-
cipality can prevent IL. But this use
must be subordinate 10 the rights Of thu
public must not endanger those rights.
And as the municipality Is the guardian
of the public in this regard, IL can es-
tablish such lawful provisions as may
regulate the use. always. however, avoid
ing such regulations as will make the
use burdensOme and intOlerable. and 50
practically impossible. CITY Of Phila-
dephia VS. Western Union Telegraph
Company. 50 Fed. Rep. 19lJ
This being so, the injunction granted by
the Circuit Court is too broad I'm its
language and effect. There should have
been the recognition Of "A proper exercise
of the police power by the municipal cor
poratiOn. and the use by the complainant
Of its poles and lines should have been de-
clared TO be subject to such regulations
and restrictions as may now or may be
hereafter imposed by the city Council
of Richmond. in the proper and lawful
exercise of the police power.
1NTOLERABLE AND IMPOSSIBLE.
The only remaining question is do the
ordinances of the city of Richmond pre-
scribe regulations which will make the
use burdensOme and intOlerablc, and
practically impossible?
1T belongs TO the legislature TO excr-
else the police power Of the State, sub
ject to the power of the courts TO adj
Judge whether any particular law is an
invasion to rights secured by the Con-
stitution." CAIugler VS.. Kansas. l23 u.
S, 623) "The legislature may not. UNI
der the guise of protecting the pnblic in
terests, arbitrarily interfere with pri-
Vate businesses of or impose unusual and
unnecessary restrictions upon lawful oc-
equations. In other words its determine
ton as to what is a proper exercise of its
police power is not final or conclusive.
but is subject TO the supervision OF the
courts" Uawton VS.. steele l52 L. S..
1870 If this be the case with regard To
the Legislature fortiori II applies 10 a
municipal corporation, the creature of the
legislature.
on examination OF these ordinances Il
will be seen that as a condition precedent
to the use OF the streets of kichmoni. a
petition must first be filed for the pur-
pose OF erecting and maintaining poles
and wires for telephone purposes in ac-
cordance with the conditions OF that or
dinance. and such other conditions as the
Council may seen lit 10 impose iOrdi-
nance approved 10th September. 1881