City of Marshfield v. Wisconsin Telephone Co.

Bardeen, J. Both parties admit the public character of the streets of a city and the almost omnipotent control of the legislature- over their use. The city does not own, and cannot alien, its streets. It cannot rightfully authorize obstructions therein without legislative authority. Its duties and obligations with respect thereto are defined in its char [610] ter. The general law grants powers and privileges to persons or corporations like the defendant company, to be exercised by municipal consent or subject to municipal limitations. Sec. 1718, Stats. 1898, under the interpretation of this court, authorizes the use of the highways of this state by corporations like the defendant, by their poles and wires, provided they are so set as not to obstruct or incommode the public use thereof. Wis. Tel. Co. v. Oshkosh, 62 Wis. 32; Roberts v. Wis. Tel. Co. 77 Wis. 589. And see State ex rel. Wis. Tel. Co. v. Janesville St. R. Co. 87 Wis. 72. It is conceded by appellant that this section does not deprive cities of their power of police control over the manner in which such work shall be done, and that they may adopt, by ordinance, all reasonable regulations for the location and use of telephone poles and wires in the streets. Sec. 4, subch. IY, ch. 160, Laws of 1891 (plaintiff’s charter), provides: “ The common council shall have authority by ordinances, resolutions, bylaws or regulations: . . (26) To lay out, make, open and keep in repair, alter or discontinue, any highways, streets, lanes and alleys, and to keep them free from incumbrances and to protect them from injury. (27) To establish and alter the grades of streets, and to regulate the manner of using the streets in said city, and to protect the same from injury by vehicies used thereon.” Construing similar provisions in the charter of the city of Janesville, this court, in 87 Wis. 72, before cited, said: “There can be no question, at this late day, but that our municipal corporations may make all reasonable regulations for the location' and use of electric wires in the streets, and require all reasonable safeguards for the same. The question is virtually settled in this state by our own decisions.” The authorities and decisions there cited seem fully to warrant that conclusion. That, in the exercise of this power, the city authorities may go so far as to prohibit the incumbering by telephone poles of certain of its streets, in the exercise of a [611] reasonable discretion, is equally clear. Such, right necessarily follows from, the grant of the power to regulate. It is also implied from the fact that the dominant purpose of a street is for public passage, and any appropriation of it by a legislative sanction to other objects must be deemed to be in subordination to this use, unless a contrary intent is clearly expressed. Hudson River Tel. Co. v. Watervliet T. & R. Co. 135 N. Y. 393; Utica v. Utica Tel. Co. 24 App. Div. 361. Or, to state the rule in another way: “All legislative grants to private corporations to occupy streets with electrical appliances are impliedly, if not expressly, subject to the police powers of the municipality, both to dictate and to change the location of such plant.” Monongahela v. Monongahela E. L. Co. 4 Am. El. Cas. 53. But, it is said, the city of Marshfield has never passed any ordinance or by-law regulating the placing of poles in its streets, and it is argued that, as defendants were not violating ahy regulation in that respect, this action cannot be maintained. Sec. 7, subch. XI, of the charter provides: “ No building shall be moved through the streets or obstructions be placed therein without a written permit therefor granted by the board of public works; said board shall have power to determine the time and manner of using the streets for laying or changing water pipes, or placing and. maintaining electric lights, telegraph and telephone poles; provided, however, that the decision of said board in this regard may be appealed to the common council.” This provision gives to the board of public works ample power to exercise control over the streets of the city, subject to appeal to the council. Whether it gives them the power to totally prohibit- the incumbering of the streets of the city by telephone poles is not necessary to decide. The city makes no such claim, but it does insist that its streets shall not be so incumbered except under the direction of the proper officers. The record shows that the defendant Gallagher, r'epre612 senting the company, went to Mr. Hoffman, the chairman of the board of public works, about 11 a. m. of October 14th, and said he was ready with a crew of men, and wished the consent of the board to set a line of poles along Central avenue from its main line to the business part of the city. He was informed that the chairman had no power to give such consent, that some of the members were out of the city, but that a meeting of the board would be called not later than the evening of that day to act upon' such request. Gallagher replied that he was ready with his men to set the poles, and would not wait for such meeting; that his instructions were to set the poles immediately, and he would do so, independent of the board or the other city authorities, which he forthwith proceeded to do until forced to stop. It is such conduct as this that creates and fosters feelings of prejudice against corporations. It was in utter disregard of the city’s rights. The city had theretofore granted a franchise for a local exchange. Under it the local company had .a right to use certain of the streets for its poles, under the direction of the board. It cuts no figure in this case that the franchise was exclusive for a limited time. If it was wrong, it did not justify the defendant in committing another wrong. The fact that the common council had adopted no ordinances, or the board of .public, works had passed no regulations, in relation to pole setting, affords the defendant no justification for its procedure. While it is true the city might have enacted ordinances on the general subject of the incumbering of the street, yet from the very nature of the situation it was impossible to anticipate the needs or desires of a company coming in as the defendant did. Before the board could act intelligently, it was necessary for them to know something about the desires and intentions of parties desiring to use the streets. When the situation had sufficiently developed that the board could act understandingly, it be-camé its duty to act, and to act reasonably. It was likewise [613] incumbent upon the defendant to make its purposes and ■wishes known to the board, and to give them a reasonable time to take action. The defendant had no right to enter upon the streets of the city, even though no prohibitory ordinances had been passed, and occupy them as it pleased, and set up poles that were obstructions, at will. Its right to go upon the streets with its structures was limited by the charter provisions mentioned, and, until it had complied with their requirementsj it was without legal justification. Here Avas a city of 5,000 people, with waterworks, electric lights, a local exchange, and paved streets. Considerations of local pride seemed to demand that their main business street, in the business center, should be kept clear of obstructions or incumbrances. The board had an undoubted right, in the exercise of a reasonable discretion, to prohibit the incumbering of Central avenue with wires and poles. The discretion of that body could be controlled by the council on appeal. It was not within the power of the council to determine the time when or the manner in which defendant might set up its line, except in the exercise of its appellate jurisdiction over the board. We do not say that the city has the right to entirely exclude the defendant from entering the city, because, under the facts, that question is not before us. We do hold, however, that, before the defendant can occupy any of the streets, application should be made to the board of public works, and a reasonable time given for that body to act. Its action is subject to review by the council, on appeal, if not satisfactory. In the exercise of its powers, the council may consider that the rights of the defendant under the general law are in subordination to the police powers vested in the city authorities, and may adopt all reasonable regulations necessary to prevent its streets from being obstructed or incumbered. If it acts contrary to law, no doubt an ample remedy exists. [614] Defendant’s so-called modified motion must also fail. The court will not assume to control tbe action of tbe board of public works. When a proper and timely application has been made to tbe board, they may be compelled to act. Until then tbe court has no right to interfere. By the Court.— Tbe order of tbe circuit court is affirmed.