The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1901-05-10
Supreme Court Again Re
verses Judge MCGEE.
THE POLES MAY GO UP
City Ordinance of 1900 Is Held Not
Valid.
LOVELY WRITES THE DF SION
Chief Justice Start DissentA-Oll
Important Qualification
Is Specihed.


The supreme court has again reversed
Judge MCGEE in the Northwestern Tele-
phone company case. The opinion on re-
hearing was filed this morning, and bears
the signature of Judge Lovely.
The case involves the right Of the city
to order telephone wires placed under
ground. The city council in 1899 passed
an ordinance extending the underground
limits to about ten times their former size.
The telephone company, ignoring the
ordinance, proceeded to string wires with
in the prescribed limit. 1t was stopped by
the police, and the company's attorneys
applied for an injunction to restrain the
city from interfering with the work. The
Injunction was demurred to By the city,
and Judge McGee sustained the demurrer.
The company appealed to the supreme
court. The company's attorneys main
tained that, under the charter, the COM
pany had been given the right to string
its wires, and that the grant constituted
a contract. 1t also urged that the state
law gave the company right to the use
of city streets as well as Of rural high
ways.
The supreme court reversed the lower
court, but rehearing was secured.
The decision filed to-day upholds both
contentious of the company, but with the
important proviso that the city has the
F1a III ~ Z
wires in its streets and to compel the
companies to put their wires in conduits
when reason, convenience, or the good
government Of the municipality requires.
Judge Start dissents from the courts s
reasoning, but concurs in the conclusion
that the complaint states a cause of ae-
tion.
The decision knocks out the 1899 or
dinance, and makes it necessary for the
council to establish new limits consistent
with reasonable regulation.
The syllabus is as follows:
The Syllabus.
The Northwestern Telephone Exchange Com
pany, appellant, VS.. City Of Minneapolis ct
al, respondents:
First-HeId. that under the general laws of I
this state, section 2S chapter 81, revision of |
1866, IS amended by chapter % of the General |
that telephone companies are given the right |
to erect poles and wires within the urban |
ways and streets of this state as well as |
upon rural highways.
Second-That the provisions of the charter |
Of Minneapolis confers upon that city no au- |
thority to arbitrarily order removal of such |
poles and wires, but only the right to regu-
late the placing Of the same in its streets
and to compel the telephone companies to put
in h dtrffs
reason, convenience or the good government
of the municipality requires. Order reversed.
Lovely, J.
The Opinion.
Judge Lovely in his opinion, says:
We are led to the conclusion that the plain
tiff had right to use the streets of the city
under proper regulations and restrictions by
the municipality. What such power of regu-
lation in the city imposed in its relation
to the plaintiff is still to be considered. Since
The first argument in the case secticn 2641 Of
the general statutes of 1894 mas been judcially
construed by the United States circuit court
of this district, and the conclusion expressed
above find authority therein as well as the
necessary deduction that any ordinance of
the city interfering with or impairirg the
vested right thus conferred upon the plaintiff
by the state violated constitutional rights and
was invalid
Judge Lovely further says:
We think much misunderstanding has aris-
en- from the previous opinion through fail
ure to realize what was actually determined.
We have not held and do not hold that the
city had the power to confer upon the plain
tiff vested rights to irrevocably occupy its
streets in violation Of any reasonable right
therein by the city We hold that the only
power delegated by the state to the city un-
der any of the charter provisions referred to
is the power Of regulation and the necessary
control incident to such power. We held in
the former opinion, and now hold that the
only contracts entered into by the city with
the defendant was with reference to the man
ner and method of placing its poles and
wires Such contract was within the police
power Of the city, and the defendant having
acted upon the contract as the ordinance Of
1888 as to how 1t should place its poles and
wires the city cannot without reasonable
cause In the exercise Of its power Of regula
ton, revoke it's contract as to such matters
and order a different arrangement.
The solution Of the question involved in
this case is not difficult, and is consistent
with every reasonable interest that belongs
to the people Of the city of Minneapolis. The
plaintiff has the right to use It's streets in
the way prescribed, but such right is subject
for overhead wires or any other placement
of its lines is injurious to public safety, con-
venience. comfort or utility in the arrange
ment of city affairs or inconsistent with rea-
sonable comfort, order and good government, |
the city has the power under the law and its
charter provisions to compel a removal of
such poles and wires from the streets and
compel them to be placed in subsurface con-
duits, OF to otherwise regulate the business
of the company, so that the use of Its streets
shall not interfere with the rights Of its citi-
zens but subserve their welfare in the inesti
mable service which the telephone renders to
commerce, civilization and the happiness of
its people We have determined no facts, but
have only assumed that to be true which de-
fendant has admitted.
Start Dissents.
Chief Justice Start says:
cannot assent to the conclusion reached
by the court upon several vital questions in
this case. He does not concur in the view
that the state law overrides local ordinances,
and gives the companies right to use of the
streets as well as other highways. Their
rights depend on charter provisions and ord-
ranees of the city The city council is the
Judge of the necessity Of regulation in any
particular case. He holds that the ordinance
is valid unless the plaintiff can establish that
the city council did not enact the ordinance