manner as to infringe the equal rights of individuals, or the general well-being of the State." "Under the inherent power of police regulation and control over persons and property within its limits a State may regulate the management of the property of telegraph companies, impose a tax upon them and provide for the proper conduct of the company's business."1 A statute which required that in large cities telegraph and telephone lines should be placed under ground in proper subways has been held valid and a proper exercise of the State's power of police regulation.2 3 "But a telephone company is engaged in a business affected with a public interest within the meaning of the rule laid down in a leading case, and the State in the exercise of its police power may therefore regulate the charges of such companies and provide a maximum rate which their charges shall not exceed." 4 And it is also stated on page last cited that: "The State may delegate its right of police regulation to a municipal corporation; but whether such a delegation has been made in any particular case depends upon the construction of the charter of statute.' In commenting on this text the note says that in the St. Louis case: "It was held that the power to regulate telegraph companies included a similar power over telephone companies although the latter were not in existence at the time of the grant of authority. "After the city, by virtue of its power to regulate, has designated the streets in which a company may place its wires, and the company has conformed to all the conditions, and expended money in placing its poles on said streets, the municipality cannot revoke the designation except for just and sufficient cause. But the fact that a company has obtained permission from the city to occupy the streets, does not secure immunity for it from subsequent regulations prescribed by the legislature 1 25 A. & E. Enc. of Law, 767. 2 25 A. & E. Enc. of Law, 768 and cases cited, note 2. 3 Munn v. Illinois, 94 U. S. 113. 4 25 A. & E. Enc. of Law, 771–2. VOL. XXX. 25 which do not amount to an impairment of its substantial vested rights." 1 In speaking of the rights which the Bell Telephone Company had in the city of St. Louis, Judge Black, speaking for our Supreme Court, says: "And since the defendant [the telephone company] has conferred upon it special franchises and privileges, including the right of eminent domain, the corporation is subject to public regulations, and we shall take it for granted that the State has the power to fix and prescribe a maximum rate for telephone services. That this power could be delegated to municipal corporations is equally clear." 2 TELEPHONE COMPANIES SUBJECT TO LEGISLATIVE CONTROL. 3 "A telephone company is a common carrier, subject to legislative control. It is a carrier of news, in the sense in which a telegraph company is a common carrier. Notwithstanding the patented quality of the instrument used by it to transmit the news, the State may regulate the prices to be charged by the company. The power of a State legislature to prescribe the maximum charges which a telephone company may make for services rendered, facilities afforded or articles of property furnished for use in its business, is plenary and complete. Property thus devoted to a public use becomes a legitimate subject of legislative regulation and control." What the legislature may do it may delegate the authority to do. Thus from the earliest history of the State authority to vacate highways in country districts has been conferred on special tribunals. Like authority has frequently been conferred on municipalities. No reason appears why all such authority possessed by the legislature may not be thus delegated. But the delegation of such power must plainly appear, either by express grant or by necessary implication.' "1 HAS THE STATE DELEGATED ITS POWER TO THE CITY? Under Sections 50 and 51 of the Enabling Act 2 it is clear that this question must be answered in the affirmative, for the former provides the city shall have exclusive control over its public highways, streets," etc., "any law of this State to the contrary, notwithstanding;" while the latter grants to the city the right "to provide for regulating and controlling the exercise * of any public franchise or privilege in any of the streets or public places of such city, whether such franchises or privileges have been granted by said city or by or under the State of Missouri, or any other authority." It would be difficult to delegate the State's power in stronger, clearer language than that employed by the law-making power of the State in the sections named. THE CITY ACCEPTED THE POWER THUS DELEGATED BY the State. In and by its charter, adopted in 1889, the city accepted the power thus delegated to it by the State and therein made ample provisions for the exercise of such rights: First, by declaring that the city shall have power by ordinance" have exclusive control and power over the streets To of the city;" and second, by electing "to provide for regulating and controlling the exercise of any public franchise or privilege in any of the streets or public places of such city" and by reserving to itself the power "to regulate the prices to be charged by telephone" companies. These and other provisions of the charter have been fully quoted heretofore and need not be here repeated. In addition to this, and as an offset to the claim that telegraph and telephone companies have the right under the State laws to 1 Morris & E. R. Co. v. Newark, 10 N. J. Eq. 363; Jersey City Gas v. Dwight, 28 N. J. Eq. 242; 36 N. J. L. 79; 24 N. J. Eq. 158; 18 N. J. Eq. 72; 6 Cent. Rep. 540; 49 N. J. L. 844; Lawyers' Reports Ann't'd, Book 2, page 278 note. 2 R. S. 1889, Secs. 1889, 1890. the use of streets (subject only to the city's right to say where the poles shall be placed) it is curious to note the fact that Kansas City, from the date of its organization, has always been, as it is now, under a special charter. I have not before me the original charter of 1853, nor any of the amendments thereto granted by the legislature prior to the charter of 1875. But under the charter of 1875, as well as under the present charter, the city was granted, and since 1875 has had, the right "to have exclusive control and power over the streets, sidewalks, alleys public grounds and highways of the city' with the right "to prevent and remove all encroachments thereon or obstructions thereof.”1 So that whatever rights the State originally had to the control of and power over the streets of this city, its legislature, beginning with the charter of 1853, attempted to vest in the city. RIGHTS OF THE TELEPHONE COMPANY. Aside from specifying where its poles should be located, etc.,2 the city has never, by ordinance or otherwise, attempted to regulate or control the exercise of the telephone company's franchise. Hence, all rights here in question which the company now has, are derived from the statute and are as follows: * Under Section 2717, R. S. 1889,3 the company is granted the power to "construct, operate and maintain lines of telephone between such points as they may from time to time determine and to make such reasonable charges for the use of the same as they may establish." Section 2721, R. S. 1889, provides that telephone and telegraph companies "are authorized to set their poles, piers, abutments, wires and other fixtures along, across or under any of the public roads, streets and waters of the State in such manner as not to incommode the public in the use of such roads, streets and water; provided, any telephone company desiring to place their wires and other fixtures under ground in 1 Charter, 1875, Subd. Seventh, Section 1, Art. III.; Charter, 1889, Subd. Fifth, Section 1 of Art. III. 2 Under Section 2730 R. S. any city shall first obtain consent from said city through the municipal authorities thereof.” 1 And Sec. 27252 of the statutes prescribing the duties and obligations of such companies, provides that they shall receive and transmit communications "on payment or tender of their usual charges for transmitting dispatches as established by the rules and regulations of such telephone or telegraph company." The contention of the company under this statute is, first, that they have the absolute statutory power "to make such reasonable charges as they may establish," and second, that they are under no legal obligation to receive or transmit communications, except "on payment or tender of their usual charges for transmitting dispatches as established by the rules and regulations of such telephone or telegraph company," and further, these are vested rights which cannot be taken from them by the city. It has already been shown that the State had the reserved power of control and regulation of the company; that it had the right to and did delegate this power to the city, which duly accepted the same, and that under the charters of the city, from its organization in 1853 up to date, the city, and not the State, has had the "exclusive control and power over its streets. But aside from all this the power." to make such reasonable charges as they may determine" is not only subject. to State and municipal control; but that grant "does not carry with it the power to declare what shall be deemed reasonable,' and under the common law, as well as under similar statutes, the courts have the right to determine, under all the facts and circumstances, as a matter of law, whether such charges are "reasonable or not. COURT TO DETERMINE QUESTION OF "REASONABLE CHARGES.' The statute did not attempt to grant to the company the arbitrary power to fix an arbitrary charge, but limited their right to "make such reasonable charges as they may establish." The law-makers used that word "reasonable " 1 This proviso was added in R. S. 1889. 2 883 R. S. 1879. |