The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1901-10-09
REPLIES TO CRICCS
MIR. LAWLER DISSENTS FROM
GRIGGS' VIEWS ON TELE-
PHONE CASE
ISSUE STATED VIGOROUSLY
Criticises Attitude of Company, and
Insists That the Question Be
Given Thorough Con-
sideratiom.

Following the discharge of B. L. Free
| dy, manager of the Northwestern Tee
| phone company, who was arrested at
| the instance of the police department,
| for what the latter considered violation
| of the city ordinance, in encumbering the
! streets with wires without the customary
permit, Assistant Corporation Attorney
Griggs directed letter to Police Commits
sioner LaWler calling his attention to
the outcome, and suggesting that the
order of the commission authorizing such
arrests be modified.
Mr.. Griggs, in his letter, intimated tAAt
resistance on the part of the city was
! useless, and to a large degree held cor
rect the ruling made by the presiding
judge.
Mr.. LAWYER, however, does not think
the legal department is correct in its po-
sition. To Mr. Griggs yesterday he di-
rected the following letter, a copy being
read at the meeting of the commission
yesterday, and receiving full approval:
I beg to acknowledge the receipt of
your communication of the 4th inst. rela
tive to the case of the city against B. L.
Freely, and to say that I am free to
! express the opinion in which you evil
IDENTIFY share, that the decision arrived at
by. Judge Hine is not justified by the
evidence or by the legal principles which
You say that the court held, first that
no obstruction of or encroachmear upon
the street was established, and second,
that as the defendant had established d
lawful permit for the action in which he
was engaged at the time OF his arrest;
he must be discharged.
With regard to the first proposition, It
seems to me on the statement of the evil
dence made in your letter, that there is
TO room whatever for. doubling that the
conclusion arrived at by the court was
erroneous. 1t is an elementary principle
of law that any unauthorized obstruction
of, encroachment upon Or interferen &c
with a public street or alley, is a public
nuisance, and the question as to the d.
gree of damage caused by the obstruc-
ton, the encroachment or the Interior
ence will not be entered into by a court
in determining whether the crime has
been committed.
This matter was fully and definitely
passed upon by the district attorney OF
this county some ten years ago, while
was corporation attorney in an action
based upon the death of a person who
was killed by being struck by piece of
ice which fell from the roof of the
Chamber of Commerce building, which ar
that time projected over and into the
street The building was then, as now,
several stories in height, and the court
held that any encroachment over the
street line by the cornice of a building,
no matter how high the cornice may be
or how secure, is a public nuisance. Act
ing under this decision the building in-
spector at that time notified the owners
street line that the encroachment must
stop and to a large extent his order was
obeyed. The question Is SO elemeI. Gry
and plain that it seems absurd to dis
cuss it.
With regard to the second proposition,
I have been unable to discover 1.-THE law
full permit for the action in which the
defendant was engaged at the time OF his
arrest" to which you refer. You say III
your letter that the evidence showed
that the defendant had a permit for tic
maintenance of a line of poles. but there
was no authority shown for the mainte-
nance of wires. 1t is also elementary
that where claim is made under pub
lie grant no intendment will be made tn
favor of the beneficiary, but all presump-
tons will be in favor of the public. II
the Northwestern Telephone company
has no express grant to string and main
tain wires no such right will be presumed
by a grant to maintain poles. Whatever
rule may apply between private indivi1
uals with regard to a presumption that
tionaI right it will not obtain where
franchise is in question AS matter of
fact, if any presumption were to be al
lowed, 1t would be that the grantee ex~
pected to get merely what the ordinance
gave it, namely, right to maintain poles
only for the reason that not only this
company, but other companies which
maintain poles, are in the habit to a great
extent of renting their use to other COM
panieS
NO PERMIT ON FILE.
With regard to the permit itself, 1
have caused inquiry to be made at the
city engineers Office and find that none
is on file, and that the only record there
is a copy of an application made in
April. 1899, for the privilege of reset
ting the poles in question. The alleged
permit was not fled with the municipal
court and | have been unable to see the
original. If, however, the permit was
granted, or any permit was issued by
the engineers office since June Is, 1894,
without the consent of the council first
obtained, it is void under the provisions
of Ordinance No. 1884 which was passed
at the instance of Mr.. Markham, now
corporation attorney, then member of
of the council for 1894. 1 understand
that the prosecuting officer did not offer
this ordinance in evidence.
In view of such examination as l have
been able to make I am constrained to
believe that the case was not as fully
presented and as exclusively argued
as you would desire. For my own part,
as q member of the board of police COM
missioners, / shall at least so report my
own opinion at the meeting of the board,
which is to be held tomorrow.
am unable to agree with you In your
board of police has made for the arrest
of any person stringing wire without
permit be modified to the extent that
rests only when the stringing of the
wires in question will result in an UNI
reasonable use of the poles on which
they are placed The requirement Of the
order that any person Stringing wire
exhibit a permit is entirely reasonable
and proper, for the reason that police
officers are not expected to be able to
Summarily decide questions of law based
on public grants and for the further rea-
son that they have right to demand
written authority for acts which on their
face are illegal.
The position taken by the telephone
c0nnanV as set out in an interview by
one of its representatives to the effect
that If such permits Were required it