Commonwealth ex rel. Bell Telephone Co. v. Warwick

Opinion by

Mr. Justice Mitchell,

The Bell Telephone Company, relator, claims the right under the ordinance of 1879 granting permission to introduce its system into Philadelphia, to lay its wires under the streets, and to erect such terminal poles, etc., as it may deem necessary, subject only to the regulation of the use of the streets by general ordinances of councils. The respondents on the other hand, on behalf of the city of Philadelphia, contend that the consent of councils must be specially obtained for each extension of the relator’s conduits or wires and the erection of each terminal pole. Neither of these opposing contentious can be sustained in its entirety. The basis of the relator’s rights is the ordinance of December 21, 1879, by which it was “authorized to run and maintain its wires over and through the streets of the city of Philadelphia for the purpose of establishing telephonic communication between its patrons and between its exchange office and the subscribers thereto.” Except certain preliminaries which were complied with, the only condition imposed by this ordinance was that the company should enter into a written obligation to comply with all the ordinances then existing or thereafter passed “regulating or in any manner controlling telegraph or telephone companies in the use of the streets for telegraph and telephone purposes.” The relator having accepted this obligation and constructed its lines, it is clear that the power of the city to impose conditions upon its grant of consent was ended. Its authority thereafter was only that of regulation as to the use of the streets.

The grant however of authority to run and maintain wires “ over and through ” the streets, did not include permission to lay them under, below or beneath. Over and through are equivalent to across and along, not only by the natural meaning of the words in this connection, but by the practical construction given to them at the time by the acts of the parties. The claims of the relator in this respect are too broad and cannot be sustained.

But by tbe ordinance of June 13, 1882, the relator, in common with all others except the city of Philadelphia itself, was directed to remove all poles and wires from the streets prior to January, 1885, and prohibited from erecting any others after that date. The object of this ordinance is admitted to have been the substitution of the underground for the overhead system. No question was raised by the telephone company as to the reasonableness of this ordinance as a regulation of the use of the streets, and it proceeded to construct and put in operation in a considerable part of the city its underground conduits and wires. By the concurrent act therefore of the city and the company, the mode of using the streets in the exercise of the latter’s franchise has been changed from the overhead to the underground system. No other change was made, and the franchise remains the same in all other respects. The original grant of consent extended to all the streets of the city. There was no limitation then and there could be none imposed thereafter.

The change to the new system was not made all at once, and the city, by ordinances from time to time, postponed the date for the removal of the poles, and finally suspended the operation of the ordinance of 1882 in that respect till further action of councils. Nor was it found practicable apparently by the telephone company to do away altogether with the use of poles, and in adopting its underground conduits it has used what have, been called in this case terminal poles, which though much fewer in number than the old telegraph poles are much larger and more obstructive of the street. Permission for the location and construction of conduits and the erection of such poles has from time to time been granted by special ordinance on application to councils, and licenses from the superintendent of the police and fire-alarm telegraph, and later from the department of public safety. Question having been made however as to the issuance of such licenses the mayor was of opinion that he might do so, but in January, 1897, he submitted the matter to councils recommending the passage of a resolution giving express authority to the director of public safety. Councils however on February 4,1897, passed instead, a resolution directing the “ departments of public works and safety .... not to issue any permits for the construction of underground service or the erection of terminal poles unless the same has been duly authorized by ordinance of councils.” Thereafter the director of public safety, deeming himself without power, refused to issue any further licenses, and hence the filing of this petition by the telephone company.

The ordinance of 1879, as already discussed, put no restriction on the streets or localities. to be occupied by the telephone company, nor did the ordinance of 1882. The latter authorized, and in fact commanded, the replacement of the overhead by the underground system, and in so doing it necessarily authorized the construction of conduits, terminal poles or any such appliances as are or may be reasonably necessary to make the system effective. And the determination as to what streets should be occupied was no longer in councils but in the telephone company, except possibly so far as any particular street might be so exceptionally' situated as to take it out of the general rule. The ordinance therefore of January 12, 1888, and others of the like kind, granting permission to lay conduits in certain streets, were unnecessaiy, and, except so far as the provisions as to the manner of doing the work, at night, etc., may be valid regulations, were inoperative.

While the city, however, has parted with its power to designate the streets to be occupied, it has expressly.retained the authority to regulate the manner of occupation. And this includes the power to compel the adoption from time to time of all reasonable and generally accepted improvements which tend to decrease the obstruction of the streets or increase the safety or convenience of the public in their use. By the ordinance of January 6, 1881, “to regulate the erection and maintenance of telegraph poles” in the city of Philadelphia, any corporation or person authorized to erect telegraph poles was required to obtain a license from the superintendent of the police and fire-alarm telegraph, who was authorized to receive the applications, hear objections and grant the license, with such conditions, etc., as the case should require to secure the purposes of the ordinance. Under the Bullitt bill of 1885 the duties and authority of the superintendent of the police and fire-alarm telegraph passed to the department of public safety, which is now vested with the authority to issue licenses for telegraph poles, etc., under the ordinance of 1881, and with the general supervision of the subject. The power being administrative in its nature and lodged in an executive department cannot be controlled by councils under the prohibition of the Act of 1885, article 16, P. L. 54. The resolution of February 4, 1897, was therefore beyond the province of councils and of no effect.

The judgment of the learned court below was in substantial accord with the principles so far discussed, but overlooked one point of at least technical importance. The case was heard on petition and answer, and the averments of the latter must betaken to be true. In paragraph seven it is denied that terminal poles are a necessary part of the operation of the underground system; in paragraph ten it is averred that the poles, if licensed at all, should be located by the electrical bzzreau, with a vieAV to the interests of the city azzd the property OAVzrers and the cozzvenience of the public, and in paragraph thirteen it is averred that there is another systezn which dispenses with termizzal poles airead}' izi use by another compazzy, azid which could be used by the relator. These averments raise questiozzs of fact which the respondents are entitled to have determined before the issue of a peremptory mandamus. The ordinance of 1881 requires the applicazit for licezzse to designate the places where the poles are to be erected, but gives the departzzzent authority to revise azzd modify the particulars before issuing the license. We presume this is all that is zneazzt to be claimed by paragraph ten of the ansAver, azzd if so, it is clearly withizi the provizzce of the department. The other matters, if izzsisted upon, may be more serious. As already said, the power of regulation izicludes the power to coznpel the adoptiozz of reasonable and generally accepted devices which increase the safety azzd convenience of. the public. The use of terminal poles being the systezzz heretofore adopted, the burden of showing that there is a better one, izz general acceptance and reasonably adoptable by the telephone cozzzpazzy, will he upozz the city. Whether the director of public safety, iiz view of the expressiozz in his letter of December 10, 1896, to the mayoz’, that “izz fact with underground conduits terzzziizal poles az’e alozze pz’acticable,” will be disposed to insist now on a different systezzz is for him to determine. The matter is largely within his discretion, azzd now that he is freed from the prohibition of the resolution of February 4,1897, azzd restored to his proper control of the subject, Ave presume he can readily come to an agreement with the relator. But for the present the answer must stand as raising an issue of fact which must be disposed of before final judgment.

Judgment reversed and procedendo awarded.