Los Angeles herald., 1909-05-28


| tended that the ordinance was void,
will, it is stated, appeal to the supreme
| court on account of the important is
sues involved
| The company declared it had the
right to occupy the streets with poles
and wires, because being a telegraph
as we'll as a telephone company and
having in 1897 accepted the provisions
of the act of congress of July "a, 1856,
commonly known as the telegraph act,
| it was permitted to occupy any of the
/ highways within any state without the
| consent of the local government having
/ jurisdiction thereover.
Again it claimed it was engaged in
( Interstate commerce, the control and
( regulation of which is vested in the
United States to the exclusion of state
or local governments.
A third ground on which the compa :
nv based its contentious that it could
not be interfered with was that it was
granted the right to occupy perpetual
~ the highways of this state by d sec
ton of the state laws providing that
telegraph and telephone companies may
construct poles along any public road
or highway, and may erect poles and
wires in such manner as not to incom"
mode the public use thereof.
Claim Contract Right
Further, the company's attorneys
/ said that inasmuch as without obJec-
| ton the company had occupied the
/ streets of Pasadena before its incorpo-
ration as a city, and had continued so
] to do down to the time the ordinance
was passed, it still had that right; and
another reason for non-interference, 1t
vas stated, was the fact that the city
occupies space in the company's con-
duits and upon its poles for wires used
I for municipal purposes, thus providing
| q contract right to maintain the tele-
phone system which the city may not
| abrogate.
| Finally. it was declared, the amount
required by the ordinance to be paid
/ for maintaining its poles is unreason-
able
| Each and every ground upon which
| the telephone company relied was con-
/ tested by the city, and as further de-
| Tense counsel for the municipality m
! troduced a franchise accepted by the
company in 1887 for the erection and
maintenance of a telephone system in
| the city streets and which expired two
! years ago. Regarding the use by the
/ city of the company's conduit 1t was
( shown that special permission for this
| occupancy of the eonduits and poles
4 was granted by the company in 1900,
J and that the provisions of the ordi-
nance were not altered thereby.
| Regarding the telegraph work of the
| company Judge BordWell says the evil
| dence shows that this business is COM
paratively insignificant, only one in
| strument being in use in Pasadena,
The question whether or not the
/ telegraph act gives to telegraph COM
panies the right to occupy the streets
/ of a municipality without its consent y
says Judge Bordwell, lis not new to
/ the courts, and has been considered by
several state and federal courts, includ-
! ing the supreme court of the United
States" He quotes several decisions
covering this point, and adds:
1T is conceded on all hands that
after telegraph company has accept
ed the provisions ana acquired rights
under the telegraph act of 1865 and
has possessed itself of a right of way
and installed the instrumentalities
necessary to carry on the business OF
| teegraphy the operation of the bust
ness itself may not be interfered with
nor controlled nor taxed nor in any
manner regulated by state authority,
but is entirely subject to federal con-
troll
The substance of Judge Bordwel's
! decision on this point is contained in
the following paragraph:
Substance of Decision
] The supreme court OF the United
States has taken a positive and definite
| stand to the effect that neither the
federal government nor any creature,
grantee nor license of it can occupy
the public highways of a state or mu-
nicipal subdivision thereof without its
consent, or until compenS alton is
made"
In California. he adds the state leg
islature has surrendered to its cities,
lou in
risdiction over the streets within it's
borders This jurisdiction, says the
court, covers the matter of establish
ing grades and improving streets for
ordinary highway purposes, and also
extends to the determination of what
shall be permitted to be placed tenn
porarily in the streets for the accom-
mediation of individual citizens on oc-
casions, as. for instance, during the
erection of public buildings"
| Referring to the contention of the
company that the charge of rs cents a
pole is excessive, Judge Bordwell says:
IF it is competent for a city to ex-
clude poles and wires of telephone
company from its streets, then clearly
it is competent for the city to name
the terms and require payment of such
compensation as seems proper for the
occupation of the streets
The opinion ends with a decision in
favor of the city and an order dissolv-
ing the temporary restraining order
granted at the time the suit was filed
To Inspect Army Posts
! SAN FRANCISCO, May 27.-Briga-
der General George III. Torney, sur
geon general of the army, arrived to-
day from washington to make tour
of inspection of the departments OF
California and Columbia. General
Torney during his stay in this city
: will inspect the medical depot the
general hospital at the Preside and