City of Springfield v. Postal Telegraph-Cable Co.

Mr. Chief Justice Carter delivered the opinion of the court: This was an action in debt brought in the circuit court of Sangamon county by the appellee, against the appellant, in which it was alleged that said company occupied certain portions of the streets and alleys in the city oí Springfield during the years 1906, 1907, 1908 and 1909 without paying into the city treasury, on the first day of September of each year, one dollar for each pole over eight feet high used by said company, as required by a certain ordinance of said city. Appellant filed the general issue and gave notice of certain special matters relied on for defense under acts of Congress of 1866 and 1884 with reference to the right of telegraph companies to construct, maintain and operate lines of telegraph over post roads, public roads and highways. On a hearing the jury returned a directed verdict in favor of appellee for $640. Prom judgment entered thereon an appeal was prayed to the Appellate Court, where the judgment was affirmed. The Appellate Court granted a certificate of importance to this court. The appellant company was incorporated under the laws of Illinois in 1905 for the purpose of carrying on the business of transmitting telegraphic messages. It accepted the Post Roads act of Congress of 1866, as amended in 1884. January 3, 1898, the city council of Springfield adopted an ordinance which amended its code with reference to licenses, providing, among other things, that before any person or corporation should engage in business within the limits of said city he or it should first obtain a license. One of the sections of that ordinance reads as follows: “Any person, firm or corporation owning, controlling or occupying any post or pole over eight feet high which may occupy any portion of any street, alley or sidewalk within the city of Springfield, such post or pole being used to support electric or other wires, of whatsoever nature, or to support any sign or awning or display for the purpose of advertising, shall pay annually into the city treasury the sum of one dollar for each pole or post owned, controlled or occupied by said person, firm or corporation, as a remuneration to the said city for the use of the portion or portions of the street, alley or sidewalk which said pole or post may occupy.” It appears that from its incorporation until this suit was instituted the appellant company occupied the streets and alleys of the city of Springfield with 160 poles carrying wires, without any demand for the payment of one dollar per year for each pole and without having paid anything into the city treasury during all of such time, as required by said ordinance. Paragraph 6 of section 4 of article 5 of an act to incorporate the city of Springfield provided that the city council had “the exclusive control” of the “streets, alleys and highways of the city, and to * * * regulate * * * the same,” etc. (Pub. and Priv. Laws, Second Sess. 1854, p. 44.) The present Cities and Villages act was adopted by the city of Springfield. Clause 9 of section 1 of article 5 of that act provides that the city council shall have the powrer “to regulate the use of the” streets, and clause 17 of the same section that the city council shall have power “to regulate and prevent the use of streets, sidewalks and public grounds for * * * telegraph poles,” etc. (Hurd’s Stat. 1909, p. 343.) The provisions of the special charter, so far as they are not in conflict with the general Cities and Villages act, are still applicable to the city of Springfield. (Hurd’s Stat. 1909, chap. 24, sec. 6, p. 334; City of Cairo v. Bross, 101 Ill. 475; Board of Water Comrs. v. People, 137 id. 660.) Section 4 of chapter 134 of our statutes provides that no telegraph company shall erect any poles within any city, town or village without the consent of the corporate authorities. (Hurd’s Stat. 1909, p. 2212.) Counsel for appellant insist that the city of Springfield was without authority to pass the ordinance in question. Municipal corporations are limited to powers granted in express words or those that are necessarily implied in or are incident to the powers expressly granted and those essential to the declared objects and purposes of the corporation,— not simply convenient but indispensable. (Huesing v. City of Rock Island, 128 Ill. 465.) State legislatures have plenary power over all public highways, including streets within municipalities, which they may exercise directly or devolve upon the local or municipal authorities, (3 Dillon on Mun. Corp.—5th ed.—pars. 1022, 1222.) Legislative sanction directly given or conferred through municipal action is necessary to authorize the use of streets for posts and wires of telegraph or telephone companies. (3 Dillon on Mun. Corp.—5th ed.—par. 1220; 1 Elliott on Roads and Streets,—3d ed.—par. 545.) Municipalities, under such legislative authority, may demand reasonable compensation for space in the streets exclusively appropriated by telegraph and telephone companies without in any way conflicting with the act of Congress of 1866, as amended in 1884, with reference to telegraph companies using public highways and streets. (Western Union Telegraph Co. v. Attorney General, 125 U. S. 530; St. Louis v. Western Union Telegraph Co. 148 id. 93.) It is a presumption of law that the fee of a public street is in the city. (City of Chester v. Wabash, Chester and Western Railroad Co. 182 Ill. 382.) The law has long been settled in this State that any city.which has the fee under the power to control its streets granted by the Cities and Villages act, may allow any use of them that is not inconsistent with public objects for which they are held. (Sears v. City of Chicago, 247 Ill. 204, and cases cited.) The municipalities in this State may regulate such use and fix a reasonable compensation to be paid for the same. (Lobdell v. City of Chicago, 227, Ill. 218.) This includes use for the poles of telegraph or telephone companies. (Chicago Telephone Co. v. Northwestern Telephone Co. 199 Ill. 324; Village of London Mills v. White, 208 id. 2897 McWethy v. Aurora Electric Light Co. 202 id. 218.) Municipal corporations vested with the control of public property and property devoted to .public uses within their territorial limits, including the streets and highways, can impose upon telegraph and telephone companies using the streets of the city by permission or license and not under an irrevocable grant or franchise, a reasonable charge in the nature of a rental for the exclusive use of the parts of the streets occupied by poles. Similar charges may be imposed upon public service corporations occupying the streets of a municipality, not by way of rental but in the exercise of police power, this charge being in the nature of a license fee,—not a tax on the property of the company,—for the enforcement of local governmental supervision. 3 Dillon on Mun. Corp. (5th .ed.) sec. 1275; St. Louis v. Western Union Telegraph Co. supra; St. Louis v. Western Union Telegraph Co. 149 U. S. 465; Postal Telegraph-Cable Co. v. Baltimore, 156 id. 210; Western Union Telegraph Co. v. New Hope, 187 id. 419; Atlantic and Pacific Telegraph Co. v. Philadelphia, 190 id. 160. Under the reasoning of the opinion in St. Louis v. Western Union Telegraph Co. 148 U. S. 93, we are disposed to hold that the charge here in question, provided for under section 26 of said ordinance, is not a license fee or a tax, but is a charge in the nature of a rental which appellant is required to pay as a reasonable compensation for the use of the part of appellee’s streets and alleys occupied by the poles. The fact that the word “license” appears in the title of the ordinance is immaterial, there being no statutory requirement as to the title of an ordinance. Chicago Union Traction Co. v. City of Chicago, 207 Ill. 544. Counsel for appellant further insist that even though the ordinance in other respects is valid, the trial court improperly held that the burden of proving the unreasonableness of the charge for its poles rests upon appellant. Prima facie the ordinance is reasonable. (St. Louis v. Western Union Telegraph Co. 148 U. S. 93.) It is presumed to be valid, and the burden is upon those who assert the contrary. People v. Grand Trunk Railway Co. 232 Ill. 292; 2 Dillon on Mun. Corp. (5th ed.) 599. The question whether debt is the proper form of action was not raised in the trial court and cannot therefore be raised here. We find no reversible error in the record. The judgment of the Appellate Court will therefore be affirmed. Judgment affirmed.