Syllabus
The City of St. Louis is authorized by the Constitution and laws
of Missouri to impose upon a telegraph company putting its poles in
the streets of the city a charge in the nature of rental for the
exclusive use of the parts so used.
The defendants in error in this cause, decided on the 6th of
March last and reported
148 U. S. 148 U.S.
92, having asked leave to file a petition for rehearing, the Court,
in granting leave, also gave the parties leave to file briefs on
the question:
"Whether the City of St. Louis has such interest in and
Page 149 U. S. 466
control over the streets, alleys, and public places within its
limits as authorizes it to impose upon the telegraph company a
charge in the nature of rental for the exclusive use of portions
thereof in the manner stated. "
Page 149 U. S. 467
BREWER, J. In the opinion heretofore announced it was said:
"We do not understand it to be questioned by counsel for the
defendant that, under the Constitution and laws of Missouri, the
City of St. Louis has full control of its streets in this respect,
and represents the public in relation thereto."
A petition for a rehearing has been filed in which it is claimed
that the Court misunderstood the position of counsel, and further
that in fact the City of St. Louis has no such control. Leave
having been given therefor, briefs on the question whether such
control exists have been filed by both sides, that of the telegraph
company being quite full and elaborate.
We see no reason to change the views expressed as to the power
of the City of St. Louis in this matter. Control over the streets
resides somewhere. As the legislative power of a state is vested in
the legislature, generally that body has the supreme control, and
it delegates to municipal corporations such measure thereof as it
deems best. The City of St. Louis occupies a unique position. It
does not, like most cities, derive its powers by grant from the
legislature, but it framed its own charter under express authority
from the people of the state, given in the constitution. Sections
20 and 21 of the Constitution of 1875 of the State of Missouri
authorized the election of thirteen freeholders to prepare a
charter to be submitted to the qualified voters of the city, which,
when ratified by them, was to "become the organic law of the city."
Section 22 provided for amendments, to be made at intervals of not
less than two years and upon the approval of three-fifths of the
voters. Sections 23 and 25 required the charter and amendments to
always be in harmony with and subject to the Constitution and laws
of Missouri, and gave to the General Assembly the same power over
this city, notwithstanding the provisions of this article, as was
had over other cities. In pursuance of these provisions of the
constitution, a charter was prepared and adopted, and is therefore
the "organic law" of the City of St. Louis, and the powers granted
by it, so far as they are in harmony with the constitution and laws
of the state and have not been set aside by any act of the General
Assembly, are the powers vested in the city. And this charter is an
organic
Page 149 U. S. 468
act, so defined in the constitution, and is to be construed as
organic acts are construed. The city is in a very just sense an
"imperium in imperio." Its powers are self-appointed, and
the reserved control existing in the General Assembly does not take
away this peculiar feature of its charter.
An examination of this charter (2 Rev.Stat. Mo. 1879, p. 1572
and following) will disclose that very large and general powers are
given to the city, but it would unnecessarily prolong this opinion
to quote the many sections defining these powers. It must suffice
to notice those directly in point. Paragraph 2 of section 26 of
article 3 gives the mayor and assembly power, by ordinance,
"to establish, open, vacate, alter, widen, extend, pave, or
otherwise improve and sprinkle all streets, avenues, sidewalks,
alleys, wharves, and public grounds and squares, and provide for
the payment of the costs and expenses thereof in the manner in this
charter prescribed, and also to provide for the grading, lighting,
cleaning, and repairing the same, and to condemn private property
for public uses as provided for in this charter; to construct and
keep in repair all bridges, streets, sewers, and drains, and to
regulate the use thereof,"
etc. The fifth paragraph of the same article grants power "to
license, tax, and regulate . . . telegraph companies or
corporations, street-railroad cars," etc. Article 6 treats of
public improvements, including the opening of streets. Section 2
provides for condemning private property, and "for establishing,
opening, widening, or altering any street, avenue, alley, wharf,
marketplace, or public square, or route for a sewer or water pipe."
By section 4, commissioners are to be appointed to assess the
damages. By section 5, it is made the duty of these commissioners
to ascertain the actual value of the land and premises proposed to
be taken, and the actual damages done to the property thereby,
"and for the payment of such values and damages to assess
against the city the amount of benefit to the public generally, and
the balance against the owner or owners of all property which shall
be specially benefited by the proposed improvement in the opinion
of the commissioners, to the amount that each lot of such owner
shall be benefited by the improvement."
Except, therefore,
Page 149 U. S. 469
for the special benefit done to the adjacent property, the city
pays out of its treasury for the opening of streets, and this power
of the city to open and establish streets, and the duty of paying
the damages therefor out of the city treasury, were not created for
the first time by this charter, but have been the rule as far back
as 1839.
Further than that, with the charter was, as authorized by the
Constitution, a scheme for an enlargement of the boundaries of the
City of St. Louis, and an adjustment of the relations consequent
thereon between the city and the county. The boundaries were
enlarged, and by section 10 of the scheme it was provided that
--
"SEC. 10. All the public buildings, institutions, public parks,
and property of every character and description heretofore owned
and controlled by the County of St. Louis within the limits as
extended, including the courthouse, the county jail, the insane
asylum, and the poorhouse, are hereby transferred and made over to
the City of St. Louis, and all the right, title, and interest of
the County of St. Louis in said property, and in all public roads
and highways within the enlarged limits, is hereby vested in the
City of St. Louis and divested out of the county, and in
consideration of the city's becoming the proprietor of all the
county buildings and property within its enlarged limits, the city
hereby assumes the whole of the existing county debt and the entire
park tax."
2 Rev.Stat. Mo. 1879, p. 1565.
Obviously the intent and scope of this charter are to vest in
the city a very enlarged control over public property and property
devoted to public uses within the territorial limits.
It is given power to open and establish streets, to improve them
as it sees fit, and to regulate their use, paying for all this out
of its own funds. The word "regulate" is one of broad import. It is
the word used in the federal Constitution to define the power of
Congress over foreign and interstate commerce, and he who reads the
many opinions of this Court will perceive how broad and
comprehensive it has been held to be. If the city gives a right to
the use of the streets or public grounds, as it did by ordinance
No. 11,604, it simply
Page 149 U. S. 470
regulates the use when it prescribes the terms and conditions
upon which they shall be used. If it should see fit to construct
and expensive boulevard in the city, and then limit the use to
vehicles of a certain kind or exact a toll from all who use it,
would that be other than a regulation of the use? And so it is only
a matter of regulation of use when the city grants to the telegraph
company the right to use exclusively a portion of the street, on
condition of contributing something towards the expense it has been
to in opening and improving the street. Unless, therefore, the
telegraph company has some superior right which excludes it from
subjection to this control on the part of the city over the
streets, it would seem that the power to require payment of some
reasonable sum for the exclusive use of a portion of the streets
was within the grant of power to regulate the use. That the company
gets no such right from the general government is shown by the
opinion heretofore delivered, nor has it any such from the state.
The law in force in Missouri from 1866 gives certain rights in
streets to "companies organized under the provisions of this
article." Of course, the defendant, a corporation organized under
the laws of the State of New York, can claim no benefit of this. It
is true that, prior to that time, and by the Act of November 17,
1855, 2 Rev.Stat. Mo. 1855, p. 1520, the right was given to every
telegraph corporation to construct its lines along the highways and
public roads, but that was superseded by the legislation of 1866,
and when in force it was only a permission, a license, which might
be revoked at any time, and further, whatever rights, if any, this
defendant may have acquired to continue the use of the streets
already occupied at the time of the Revision of 1866, it cannot
with any show of reason be contended that it received an
irrevocable power to traverse the state and occupy any other
streets and highways.
Neither have we found in the various decisions of the courts of
Missouri to which our attention has been called any denial of the
power of the city in this respect. It is true, true, in
Glasgow
v. St. Louis, 87 Mo. 678;
Cummings v. St. Louis, 90
Mo. 259, 2 S.W. Rep. 130;
Glaessner v. Brewing
Association, 100 Mo.
Page 149 U. S. 471
508, and
Belcher Sugar Refining Co. v. St. Louis Grain
Elevator Co., 101 Mo.192, the power of the city to devote the
streets or public grounds to purely private uses was denied; but in
the cases of
Julia Building Association v. Bell Telephone
Co., 88 Mo. 258, and
St. Louis v. Bell Telephone Co.,
96 Mo. 623, it was expressly held that the use of the streets for
telephone poles was not a private use (and of course, telegraph
poles stand on the same footing), and that a private corporation
carrying on the public service of transportation of messages might
be permitted to use the streets for its poles. Counsel rely
strongly upon the latter of these cases, in which the power of the
city to regulate the charges for telephone service was denied. But
obviously that decision does not cover this case. The relations of
a telephone or telegraph company to its patrons, after the use of
the streets has been granted, do not affect the use, and power to
regulate the use does not carry with it by implication power to
regulate the dealings between the corporation having such use and
its individual patrons; but what the company shall pay to the city
for the use is directly involved in a regulation of the use. The
determination of the amount to be paid for the use is as much a
matter of regulation as determining the place which may be used or
the size or height of the poles. The very argument made by the
court to show that fixing telephone charges is not a regulation of
the use is persuasive that fixing a price for the use is such a
regulation. Counsel also refer to the case of
Atlantic &
Pacific Railroad v. St. Louis, 66 Mo. 228, but there is
nothing in that case which throws any light upon this. In that, it
appeared that there was an act of the legislature giving to the
railroad company a specific right in respect to the construction of
a track within the city limits, and it was held that the company
was entitled to the benefit of that act, and to claim the right
given by the General Assembly, although it had, after the passage
of the act, proceeded in the construction of the track under an
ordinance of the city purporting to give it the privilege. But as
we have seen, the Act of November 17, 1855, vested in defendant no
general and irrevocable power to occupy the streets in
Page 149 U. S. 472
any city in the state through all time. We find nothing,
therefore, in the cases cited from the Missouri courts which
militates with the conclusions we have drawn as to the power of the
city in this respect.
One other matter deserves notice. It will be seen by referring
to our former opinion that one of the contentions of the counsel
for the telegraph company was that, by ordinance No. 11,604, the
city had contracted with the company to permit the erection of
these poles in consideration of the right of the city to occupy and
use the top cross-arm free of charge. We quote this statement of
counsel's claim from their brief:
"Ordinance 11,604 granted defendant authority to set its poles
in the streets of the city without any limitation as to time, for
valuable considerations stipulated, and having been accepted and
acted on by defendant, and all its conditions complied with, and
the city having acquired valuable rights and privileges thereunder,
said ordinance and its acceptance constitute a contract, which the
city cannot alter in its essential terms without the consent of
defendant; nor can it impose new and burdensome
considerations."
And in respect to this, further on, they say: "No question is or
can be raised as to the validity of the contract made by ordinance
No. 11,604, and its acceptance." But if the city had power to
contract with defendant for the use of the streets, it was because
it had control over that use. If it can sell the use for a
consideration, it can require payment of a consideration for the
use, and when counsel say that no question can be made as to the
validity of such a contract, do they not concede that the city has
such control over the use of the streets as enables it to demand
pay therefor?
The petition for a rehearing is
Denied.