The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1903-10-25
HAS A RIGHT To
REMAIN ON EARTH
Telephone Company Wins Its
Case at Last.
JUDGE DhLE'S DECISION
City May Regulate but Cannot
Prohibit.
JUDGE DALES DECISION

Judge Dale handed down a decision in
the district court yesterday that prac-
ticany settles the long legal fight between
the City of Wichita and the Missouri and
Kansas Telephone company.
The city has lost its case, but the peo-
pie and the city council have learned a
few things that they did not know be-
fore. They have learned that a tele-
phone company has a right to DO bust
ness in this city and that the city coun-
ell cannot legally prohibit it from erect
ing its wires on all the streets Of the
city 1t IS worth something TO know
! that
A. E. Helm, David Smyth and S. S.
Ashbaugh and City Attorney Earl Blake
have conducted this case for the city
4 and they made a gallant fight if they did
/ not, in the end win out, c. Y. Fergu-
son and Stanley, Vermillion and Evans
were the local attorneys for the Teie-
phone company The following is the
| full text of Judge Dales opinion:
In the District Court of Sedgwick County,
State of Kansas:
The City of Wichita, Kansas. plaintiff,
VS..
| The Missouri and Kansas Telephone Com
pany, of Kansas, ct. al, defendants.
This question comes up upon the de-
murrer interposed to the petition of the
| plaintiff by the defendant, wherein said
plaintiff brought an action for perman-
ent injunction and custer against the de-
PENDANT company and injunction TO pre-
vent the defendant from further improv
ing and repairing its plant in the City,
of Wichita during the tendency of the
action, and to finally GUST said defendant
from said city. In substance amounting
TO a cessa ton OF business during the
tendency of the action, and the removal
OF the entire plant of the defendant
from the city at the termination OF the
same.
BY an agreement of counsel in order
to determine the law in the case, the
plaintiff consented TO and did file volunl-
nous amended petition setting out near
" al of the defendants claim or right to
use the streets and alleys of this city for
the purpose of erecting and maintaining
the telephone plant complained of; and
the allegations of said amended petition
contain sufficient of the facts to allow
the law to be determined by the demurrer
interposed by defendant
Upon the pleadngs as they now stand
there are only three propositions in the
case. First: Whether ordinance No. 1856,
granting the defendant a franchise to
use said city has been terminated by an
action of the city council in attempting
to do so. Second: Whether chapter 104
of the laws of 1850 is constitutional. And
Third: If constitutional, whether sub-di-
vision - of sectcn II Of the city charter
act of 1881 is broad enough to give cities
the right to refuse telegraph and teie-
phone companies any rights in cities OF
the first class without n franchise. Said
subdivision being as follows:
The mayor and council shall have
power to grant the right of way for the
erection of telegraph or telephone posts
and wires along and upon any streets.
alleys or ways of the city, and change,
modify and regulate the same"
And chapter 14 Of the laws of 1885 reads
as follows:
Section l. Corporations for the con-
struction and maintenance of a telephone
line may be formed in the mode and
manner prescribed by the general laws OF
the state for the creation of private
corporations.
Sec. >. All such corporations shall
have all the rights and powers conferred
and be subject TO all the liabilities and
duties imposed by the general laws of this
state upon telegraph corporations.
See. ,. This act shall take effect and
be in force from and after its publication
once in the official paper"
The statutes in relation to telegraph
companies as existing ut the time Chap