The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1903-10-25

ter 1O4 OF the laws Of 1885 was passed,
reads as follows:
CORPORATIONS created for the purpose
of constructing and maintaining magnetic
telegraph lines are authprized TO set their
poles piers, abuttments, wires and other
fixtures, along, upon and across any pub
| lie roads, streets and waters of this state
in such manner as not to incommode the
public in the use of such roads, streets
and waters
In my judgment it becomes unnecessary
to determine the first proposition in this
case. as the determination of the other
propositions sufficiently determine the
question of law in this case 50 far as the
demurrer is concerned.
It is contended upon behalf of plain
tiff that said chapter 19i is unconstitu-
tional because, first, the title OF the act
is defective in not expressing therein
section two of said act. and second, that
the act itself is unconstitutional, because
said act purports to confer power and
authority by reference only, and that
such acts can only be upheld in matters
Of general procedure for carrying its
terms into effect
In this case the attorneys have been
very diligent in searching for authorities
and presenting the matter very fully by
their briefs for the consideration OF the
court; and because of the Importance of
the case I have taken more time than
usual in giving this matter a very thor
ough and careful examination
1 do not intend TO take the time in
rendering this decision TO review all these
h.
tons involved l am fully satisfied in
my mind that under our constitutional
provisions chapter 10f of the laws of 1885
is constitutional; that the title of the
act is broad enough for the legislation
intended. and that under our constitu-
tional provisions legislation by reference
is permissible, although not, in the judg-
ment OF the court, the best method OF
granting power and authority. yet the
same can be constitutionally done If the
legislature sees fit to do So
The question that has bothered the
court more than any other is as TO
whether subdivision % of section II of the
city charter act gives the city absolute
authority to prohibit telephone companies
from entering the city if said council
chooses to exercise such authority.
have reached the conclusion. how
ever, after a great deal Of thought and
study over this matter, that the city coun-
ell has no right under the laws of this
state to prohibit the entering of the city
of telephone company, under the laws
as they now exist; that subdivision o.
section IL of the city charter act of 1881
was not intended TO grant such right TO
os&,v II ont
conferred upon the city council a right
to enter into contract with incoming tele-
phone companies which might be very |
beneficial TO the city by reason Of such |
contract, and which rights the city would !
not have except for such contract. and |
that under such section the incoming |
telephone companies by concessions upon /
their part could also obtain rights which |
they would not otherwise have except /
by reason of such contract.
And believe that said subdivision % of |
section IL of the city charter act in no |
way conflicts with the general provisions |
Of the statute heretofore mentioned re- |
Iating to telegraph companies. So that /
a fair construction of the city charter |
act with the general laws relating to tele-
graph and telephone companies allows
both to stand.
l also believe the council has the right
to reasonably determine what streets or
alleys may be used, the character of
wires, or in any other way in the proper
interests of the public to regulate the
use of the streets and alleys
by telephone companies. and should the
demand it, said council
may at any time change. modify and
regulate the use of such streets by said
But in no instance can the
council absolutely prohibit the use of all
streets and alleys TO such company.
In accordance with these views the
demurrer VIII be sustained.