City of Pensacola v. Southern Bell Telephone Co.

Hocker, J. (After stating the facts.) In. support of the ruling on the demurrer the defendant-in ,error contends: 1st. That the declaration was bad because (a) it does not show that the city had any authority to rent the streets, alleys and other public places in the city of Pensacola, and, because (b) it does not allege that the pole rental charged in said ordinance (Exhibit “A” of the declaration) was reasonable in amount; and that the demurrer to the plea reached back to these defects in the declaration. 2nd.- That the plea in itself was good. It is not disputed, that the ordinance attached to the declaration as a part of it, marked Exhibit A, was properly adopted, nor that by its terms it applies to all telegraph, telephone and electric light and power companies. When this ordinance was passed the city of Pensacola was a provisional municipality, acting finder the statutes providing for the creation of such municipalities, vis: Chapter 3606 laws of 1885; Chap. 3749 laws of 1887; Chap. 3949 laws of 1889, and Chap. 4303 laws of 1893; the last chapter being only applicable to Pensacola, and providing, among other things, that the officers of the provisional municipality shall be a mayor, board of commissioners, etc. Under section 6, Chapter 3606, the officers of provisional municipalities and their inhabitants are vested with all the powers and authority, rights and privileges, and charged rvith all the duties which are conferred on the alderman -and other officers and inhabitants under the general larv for the incorporation of cities and towns, approved February, 1869, Chapter 1688, and amendments thereof, and other acts conferring power upon municipal corporations, except as otherwise therein provided, or may be inconsistent therewith; and all or — 169 — dinances in force remain in force until altered or repealed. By Chapter 3949, it is provided, that one of the commissioners shall annually be elected president, and another president pro iam., to act in the absence of the president; and also that the president shall-be vested with all the power, and charged with all the duties belonging to the mayor under said act of February, 1869, Chapter 1688, and the amendments thereof, except as otherwise provided. By Section 2, Chapter 1855 laws of 1871, amending the general law, Chapter 1688, it is provided “that all ordinances passed by the city council shall' be submitted before going into effect to the mayor, or person acting as such, for his approval. -If approved, he will sign same, when it shall become a law. If disappioved.he will return the same with his objections in writing to the city council at their next regular meeting, who will cause the same to be entered in full upon the record of their proceedings, and proceed to consider the mayor’s objections, and to act upon the same; and if upon consideration the city council shall pass the same by a two-thirds vote of the members present, which vote shall be entered upon the records and the ordinance or ordinances shall then become a law, the mayor’s objection to the contrary notwithstanding. Any ordinance which shall not be returned to the city council at the next regular meeting of the council after its passage, the same shall become a law in like manner as if signed by the mayor or person acting as such.” By Chapter 3024 laws of 1877, amending certain sections of the general law of 1869, Chapter 1688, cities are given power, in section one, to pass all such ordinances and laws as may be expedient and necessary for the preservation of the public peace and morals, for the suppres — 170 — sion of riots and disorderly assembles, and for the good order and government of the city or town,” etc.; and by section two, “to regulate, improve, alter, extend and open streets, lanes and avenues, to cause encroachments and obstructions, decayed buildings and ruins to be removed,” etc.; and by section three, “to regulate and control the grading, construction and repairs of all streets, pavements, sidewalks,” etc. • The provisional government of Pensacola was abolished and a charter given it by Chapter 4513, laws of 1895; and in section 18 thereof it is provided that “the city council shall have.power to pass for the government of the city, any ordinance not in conflict, with the constitution of the United States, the constitution of Florida and statutes thereof;” and it is provided among the general provisions in section 155, that “all ordinances of the city, and all statutes now in force, and not in conflict with this act, shall continue in force until repealed or amended as now provided by law.” The ordinance marked “Exhibit A” attached to the declaration, is-attacked on the ground that the declaration does not show that the city had any authority to rent the streets, alleys and other public places in the city of Pensacola. It .will be noted that the word “rent” does not occur in the ordinance. The companies and others mentioned, are required to pay $2 per annum “for each and every pole exerted or used,” in the streets, etc. The solution of the question presented depends upon the nature óf money payment for the use of poles in the streets. In the case of St. Louis v. Western Union Tel. Co., 148 U. S. 92, text 97, 13 Sup. Ct. Rep. 485, a somewhat similar ordinance was sustained on the ground- that inasmuch as the poles permanently occupied portions of the streets, to the exclusion of the use of the public of those portions, the — 171 — city luid authority to impose the charge, and that it was in the nature of rental. The authority of the city to impose such a charge is ably vindicated in the opinion. It is contended, however, that on the petition for rehearing, see St. Louis v. Western Union Tel. Co., 149 U. S. 465, 13 Sup. Ct. Rep. 990, the court sustained the ordinance on the ground that the city of St. Louis was an “imperium in imperio, and exercised ownership and sovereign power over its streets. In our construction of this opinion, while it is true, under its charter, the city of St. Louis is the owner of its streets, still the court derived the power of the city to enact the ordinance from the power to “regulate" the use of the streets. It cites decisions of the Supreme Court of Missouri to the effect that the city had no power to devote streets or public grounds to private use, but the use of the streets for telephone poles was not a private use. We find in the latter decision no recantation of the arguments or opinions expressed in the former, but .rather their affirmance in Postal Tel. Cable Co. v. City of Baltimore, 156 U. S. 210, 15 Sup. Ct. Rep. 356. It is shown by these and other decisions of the Supreme Court of the United States, and the Appellate Courts of New York and Pennsylvania, that nntoicipalities which have the power and are charged with the duty of regulating the use of their streets, may impose a reasonable charge in the nature of a rental for the occupation of certain portions of their streets by telegraph and telephone companies, and may also impose a reasonable charge in the enforcement of local governmental supervision, the latter being a police regulation. City of Allentown v. Western Union Telegraph Company, 148 Pa. St. 117, 23 Atl. Rep. 1070; City of Chester v. Philadelphia R. & P. Tel. Co., 148 Pa. St., 120, 23 Atl. Rep. 1070; City of Philadelphia v. Postal Telegraph Cable Co., 67 Hun. 21; City — 172 — of Philadelphia v. Western Union Tel. Co., 89 Fed. Rep. 454; City of Philadelphia v. Atlantic & P. Tel. Co., 102 Fed. Rep. 254; Western Union Tel. Co. v. Borough of New Hope, 187 U. S. 419, ...... Sup. Ct. Rep. ......; Atlantic and Pacific Tel. Co. v. Philadelphia, 190 U. S. 160, ...... Sup. Ct. Rep. ......; Postal Tel. Cable Co. v. New Hope, 192 U. S. 55, ...... Sup. Ct. Rep. ....... There is no difference in the application of these principles between telegraph and telephone companies. Joyce on Electric Law, sections 8 and 9. The construction given by the declaration to the ordinance upon which the suit is based will align it under the power to impose a charge for the use and occupation of the streets by the defendant telophone company embraced in the power given the city to regulate its streets. In the case of Towns v. City of Tallahassee, 11 Fla. 130, it is said: “The courts will not interfere with the municipal regulations of a city unless it is clearly shown that they are not authorized by its charter or are in conflict with the constitution or general laws of the State.” The plea does not attack the ordinance ou the ground that the charge imposed is unreasonable, and prima facie the ordinance is reasonable? St. Louis v. Western Union Tel. Co., supra; 21 Am. & Eng. Ency. Law (2nd ed.) 978. Our next inquiry is, does the plea.set up a good defense to the action. The plea sets up an estoppel by reason of an alleged grant, contained in a resolution of the board of commissioners of the city, adopted July 9, 1890, alleging-that the president of the board was present and assenting to the said resolution; that he presided at the meeting when the resolution was adopted, consented to its adoption, and signed and approved the minutes of said board in which the resolution was recorded; that the city — 173 — availed itself of the right to use the poles for its fire alarm system, and that these acts and agreements constitute a contract between the parties, and that the ordinance contained in the declaration is in violation of the contract. It will be noticed that the president of the board is vested with all the power and charged with all the duties of mayor under the general laws for the incorporation of cities and towns; that by section 2, Chapter 1855, laws of 1871, amending the general law that all ordinances, after being passed, are to be submitted to the mayor or person acting as such, for his approval. If approved, he signs the same'and they become laws. The statute then provides for subsequent proceedings and their effect. The plea undertakes to show a compliance with these provisions, but does not do so. It does not allege that after the resolution was passed it was submitted to the preside^ acting as mayor, for his approval, nor that it was returned by him to the board with his objections, and was adopted over his ve+o by a two-thirds vote, or that he retained it and it became a law without his approval. Our general laws make no provision for the passage of resolutions by cities and towns; they only mention ordinances. There is a plain distinction between the functions of an ordinance and a'simple resolution not adopted as an ordinance. An ordinance is the mode of expressing the legislative acts of a municipal corporation, and a' resolution is an 'order of a temporary character and of a ministerial nature. 21 Am. & Eng. Ency. Law (2nd ed.) 947; City of Jacksonville v. Ledwith, 26 Fla. 163, text 197, 7 South. Rep. 863. There is no doubt, however, that municipal corporations in this State may, as an incident to their general powers; transact ordinary business of a ministerial or temporary character by resolution. But in the — 174 — case at bar. it is contended that the effect of the resolution adopted, and the acts done under it, constitute a contract, binding on the city" indefinitely. The defendant in error relies on the case of Woodruff v. Stewart, 63 Ala. 206, where it is said: “When the charter of a municipal corporation requires that every ordinance passed by the board of aldermen shall be signed by the mayor, if approved by him, or if disproved, shall be passed over his veto by a two-thirds vote of a full board, it is not essential to the validity of an ordinance that it shall be signed by the mayor, when it is copied at length in the minutes of the board, which are signed by him, and which show that he voted for it or its passage by the board.” Our law, section 2, Chapter 1855, laws of 1871, heretofore quoted, seems to be of similar iniport to that referred to in the above case, but we do not feel constrained to accept the interpretation there given. It is scarcely consistent with what this court said in City of Jacksonville v. Ledwith, supra, and we think is overborne by the weight of reason and authority. In Whitney v. City of Port Huron, 88 Mich. 268, 50 N. W. Rep. 316, it is held that “where the statute requires the resolutions of a city council to be approved and signed by tlxe mayor, the fact that he, as presiding officer, heard the resolution read, put the motion for its adoption, declared it adopted, and in fact approved it, and signed and appx’oved the journal in which it was entered, does not dispense with his approving the resolution in the manner pointed out in the statute.” To the same effect see State ex rel. Faber v. District Court of Dakota County, 41 Minn. 518, 43 N. W. Rep. 389; Graham v. City of Carondelet, 33 Mo. 262, text 268. We are of opinion that the resolution set up in plea was not adopted with the requirements of the statute as to the — 175 — adoption of ordinances, was not a contract between the city and the company, and affords no basis for an estoppel against the enforcement of the ordinance sued on in this case. The judgment of the court b.elow is reversed, and the •cause remanded for further proceedings. Taylor, P, J., and Cockrell, J., concur. Whitfield, C. J., and -Shackleford, and Carter, JJ., concur in the opinion.