City of Pomona v. Sunset Telephone & Telegraph Co.

delivered the opinion of the court.

This is a bill brought by the appellee, a California corporation, to restrain the City of Pomona from removing the appellee’s poles and wires from .the streets of the city, and from preventing the appellee’s placing further poles and wires in the streets. The Circuit Court dismissed-the bill, 164 Fed. Rep. 561 , but the decree was reversed and an injunction granted by the Circuit Court of Appeals. 172 Fed. Rep. 829 . 97 C. C. A. 251 . Two of the grounds originally relied upon were that the appellee, being a telegraph as well as a telephone company, had rights under the act of Congress of July 24, 1866, c. 230, 14 Stat. 221 (Rev. Stat., §§ 5263 et seq.), that were infringed, and that the conduct of the city had given rise to a contract. These are no longer pressed, but they warranted taking the case to the Circuit Court of Appeals. Spreckles Sugar Refining Co. v. McClain, 192 U. S. 397 , 407. The remaining ground is that the constitution of California as amended in 1911, or the statutes of the State, contained a grant with which the Constitution of the United States does not permit the city to interfere. This is the only argument pressed here. Unless the appellee got a grant from one of these two sources it has no right to, occupy the streets.

The claim based upon the amendment to Article XI, § 19, of the constitution of the State, October 10, 1911, does not impress us. Before that date the article provided that in cities having no public works for artificial light, etc., individuals or corporations of the State duly authorized should have the privilege of using the streets, etc., for the purpose, upon the. condition that

The claim founded upon the statutes seems to us stronger. By § 536 of the Civil Code “Telegraph corporations may construct lines of telegraph along and upon any public road or highway . . . and may erect poles ... in such manner arid at such points as not to incommode the public use of the road.” This is treated by the Supreme Court of California as a grant when acted upon. Western Union Telegraph Co. v. Hopkins, 116 Pac. Rep. 557 . But as the words telegraph corporations’ have been construed not to include telephone corporations; Sunset Telephone & Telegraph Co. v. City of Pasadena, 118 Pac. Rep. 796 ; a construction that we know no sufficient reason for not following; Yazoo & Mississippi Valley R. R. Co. v. Adams, 181 U. S. 580 ; Richmond v. Southern Bell Telephone & Telegraph Co.,

But the amendment did not go into effect for sixty days, and two days later, on March 22, a franchise act was passed, to take effect immediately, providing that “every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate street or interurban railroads . . . or to exercise any other privilege whatever hereafter proposed to be granted” by the legislative body of any county, city and county, city or town, except telegraph or telephone lines doing an interstate business, should be granted upon the conditions specified in the act and not otherwise. “Any applicant for any franchise or privilege above mentioned” was required to file an application, there-was to be an advertisement for bids, etc., with other particulars that need not be specified, as the appellee does not claim under this statute. It contends that this act establishes conditions only for counties, cities and towns, and does not qualify the grant from the State in the amended § 536. The appellant, on the other hand, argues that the franchise act repealed § 536, so far as it affects this case, except as to telephones doing an interstate business. In view of the frame of the act as a whole, of a general repealing clause at the end, naming certain.exceptions of which § 536 is not one, and of the fact that the grant of such franchises seems generally to have been left to the local subdivisions concerned, Sunset Telephone & Telegraph Co. v. Pasadena, 118 Pac. Rep. 796 , 803, we construe the words quoted as

We come then to consider the extent of the exception. This is not a question whether all telephones having the usual connections might not be instruments of commerce among the States; it is not a question whether the State could interfere with the local business of lines engaged in such commerce. It is a question of how far the offer of a grant that had not yet taken effect should be understood to have been left on foot by the repealing act; a question as to the meaning of words. In construing them it may be assumed that the exception was made unwillingly. No policy can be discovered that would be likely to induce the making of it, and it is most easily explained by the uncertainty then prevailing as to the power of the State over telegraphs, etc., running into other States, in view of the commerce clause of the Constitution and the act of July 24, 1866; an uncertainty then lately and since largely dispelled. Western Union Telegraph Co. v. Pennsylvania Railroad Co., 195 U. S. 540 . Western Union Telegraph Co. v. Richmond, April 1, 1912. The words to be interpreted are ‘except telegraph or telephone lines doing an interstate business.’ The qualification ‘doing an interstate business’ shows ’that not all telephones were expected to benefit by the grant in § 536, and the limitation is presumably substantial. The legislature probably supposed by mistake that it was bound to grant a right to direct through lines but evidently meant to grant no more than it must. It was understood so by the city. The order and threat of the city were confined to poles and wires

The result is that the appellee must be taken to have a grant of the right to keep its main through lines in the streets of Pomona, but not to maintain the posts and wires by which it connects with subscribers. So far as appears the city attacks only the latter, and therefore no present ground is shown for the bill. But as the line of distinction may be delicate and questions may arise the bill will be dismissed without prejudice.

Decree reversed.

Bill to be dismissed without prejudice.