MICHIGAN TEL. CO. V. CITY OF CHARLOTTE.
"It Is undoubtedly true that, until it is In'sorne way shown by the record that the sum demanded is not the matter in dispute, that sum will govern in all questions of jurisdiction. But it is equally true that, when it is shown that the sum demanded is not the real matter in dispute, the sum shown, and not the sum demanded, will prevaiL"
Has the defendant shown, by the testimony taken upon the plea, that the sum demanded is not the real matter in dispute'? From that testimony it appears that the complainant's claim is as follows: (1) For the abatement of the nuisance-that is, the demolition of respondent's east wall-the cost is estimated at $200, and the rebuilding of the same wall and placing it in good order is variously estimated at from $700 to $900 if made of the old material, and at from to $1,406 if rebuilt of new material; hence the estimate of the total expense or damage under this head varies between $900 and $1,100 if the wall is demolished and rebuilt with the old rna· terial, and between $1,500 and $1,606 if the wall is rebuilt with new material. Whether ,the wall shall be demolished and rebuilt is one of the matters in dispute. (2) In the matter of repairs for damage done to his own property, the complainant claims to the amount of $2,752. This may be excessive, but it is a matter in dispute between them, and the evidence does not show that the claim is merely colorable or fictitious. Hence it appears that the expense that may be incurred in demolishing the respondent's wall, rebuilding it, and placing it in good condition, and in repairing complaimmt's own damaged property, is variously estimated at from. $4,252 to $4,358. In addition, complainant claims damages for injury actually done to his property during the continuance of the nuisance charged in the complaint. From this testimony it satisfactorily appears to the court that the suit really and substantially involves a dispute or controversy in an amount properly within the jurisdictIon of the court. The plea will therefore be overruled, and the motion to dismiss the bill denied.
MICHIGAN TEL. CO. v. CITY OF CHARLOTTE et a1. (Circuit Court, W. D. Michigan, S. D. 1. April 11, 18()!).)
JURISDICTION OF FEDERAL COURTS-FEDERAL QUESTION.
A claim made by a telephone company in its bill, in good faith, that, by reason of the construction of its system of poles and wires in the streets of a city with the consent of the city, a contract was created which entitles it to maintain such system where it was erected, and that such coutract is impaired by an ordiuance subsequently passed by the city, states a federal question, which gives a circuit court of the United States jurisdiction of a suit to eujoin the enforcement of the ordinance.
2. T1',LEGRAPHS AND TEI,EPHONES-RIGHT TO USE POST ROADS - LOCAL POLICH
'L'he right given telegraph companies by Rev. St. U. S. § 5263, to construct and maintaiu their lines over all post roads of the United States, is Permissive only, and subject to all state or local legislation regulating its exercise; and such permission does not affect the right of a municipaJity, In the exercise of its police powers, to enact and enforce ordinauces intended to prorilOte the safety and convenience of the public in the use of its streets.
The constitutional provision vesting In congress the exclusive power to regulate and control interstate commerce does not preclude the exercise by s.tates of their pollee powers, by imposing on telephone lines regulat10nsdesigned for, the safety of the local public.
CONSTITUTIONAL LAw-IMPAIRMENT OF OBLIGATION OF CONTRACTS-EFFECT OF CONTRACT BY CITY.
, A city cannot·. by a contract which peMuits a telephone company to construct anq. maintain its line upon a. certain street, deprive itself of the )}Ower to enact such legislation as Is. necessary for the general welfare; and an ordinance modifying such permission. or requiring. the rt:moval of the line to another location, cannot be held unconstitutional. as an impairment of the obligation of the contract. where it is designed for the public safety and convenience.
,SAME-DUE PROCESS OF LAW-ORDINANCE REQUIRING TELEPHONE LINE REJ40VED FROM: STREET.
All grants of rights or privileges In streets by a city vested by its charter with the power of supervisionalld control of its streets are subject to the power and duty of the city to enact such legislation as may be required from time to time in the proper exercise of such supervision and con'ti'ol in the interests of the public; and an ordinance which can fairly be seen to be directed to a legitimate purpose, falling within such power and duty·....:..as one requiring a telephone company which had been granted the right to maintain its line .In a certain street to remove the same, on the ground that it had become. dangerous and inconvenient to persons using the street, but offerIng anoth tee location for the erection of the line. which Is a reasonable sUb'stltilte,-Is within the legitimate ))Owers of the city, and cannot be held unconstitutional by a court. as deprivIng the company of Its, property without due process of law.
In Equity. On motion for preliJnjnary injunction. Wells, Angell, Boynton & McMillan, for complainant. James M. Powers and Garry O. Fox, for defendant. SEVERE:NS, ))lstrict Judge. The bill in this case was filed by the complainant,. the Michigan' Telephone Company, against the city of Charlotte, to' restrain it from enforcing an ordinance requiring the company to transfer its poles and wires from where they stand, in front of blocks 24 and 31, em Main street, in said city, to the alley next adjoining said street, and running parallel therewith. This ordinance was passed upon the grounds that the poles now standing and supporting the wires along said street are decayed to such an extent that they have become inadequate to the support of the system of wires which they carry, and also that the company has accumulated on said poles a great number of wires, which it employs in the conduct of its business, and to such an extent as to endanger the life and safety of the citizens of said city, and others occupying the buildings on said street or traveling therein. The power of the common council to order such a transfer is denied by the complainant, which alleges that while its poles are defective, and the system needs repair in that respect, it proposes to substitute new and sufficient poles in place of the old, and in this respect stands ready to comply with the requirement of the ordinance. But the complainant denies that the wires strung upon its poles constitute any menace to the lives or safety of the public, and allegeS that the transfer of its poles and wires to the adjoining alley would be attended with considerable ex[Jt!llse and inconvenience, and that the common council transcended its
IUCRIGAN TEL. CO. V. CITY OF CHARLOTTE.
when it ordered such transfer. In addition to its answer, the city has submitted several affidavits in support thereof; and the substance of the case set up in its behalf is not only that the poles are inadequate, but also that, independently of this, the multitude of wires strung thereon creates a condition of danger which it is the duty and right of the common council to obviate by directing the transfer of the company's lines to the adjoining alley, which is much less frequented by the public, and where the danger would be greatly minimized. The company introduced its telephone system into the city of Charlotte in the year 1883, under the authority of section 371Sd, 3 How. Ann. St., which reads as follows:
"Every such corporation shall have power to construct and maintain lines of wire or other material, for use in the transmission of telephonic messages along, over, across, or under any public J;Jlaces, streets and highways, and across or under any of the waters In this state, with all necessary erections and fixtures therefor: provided, that the same shall not Injuriously Interfere with other public uses of the said places, streets, and highways, and the navigation of said waters."
The charter of the city of Charlotte contained the following provision delegating the supervision and control of its streets to the city:
"The common council shall have supervision of all publ1c highways, bridges, streets, avenues, alleys, sidewalks, and public grounds within the city, and shall cause the same to be kept In repair and free from nuisance." Loc. A.cts 1895, p. 198, § 170. I
This clause of the charter was in force at the time when the complainant introduced its system into the city, and stilI remains operative. It is sufficiently shown that the city gave its consent to the original construction of the telephone system along the streets of the citY,-among them, Main street, where the poles and lines have since continued. It is also clear enough that the proposed transfer from Main street to the alley could be made without any very considerable expense; the change involving eight or ten additional poles, increasing the length of the wires to the extent of crossing about two blocks, and perhaps some minor incidental material for making connections. The defendant, the city of Charlotte, contends that no case is stated by the bill which brings it within the jurisdiction of the federal court. Several grounds for jurisdiction are relied upon by the complainant,-among them, this: That the introduction of the telephone system and service by the complainant into the city of Charlotte, with the acquiescence and concurrence of the city, and the incurring of the cost of the construction and maintenance of the system, created a contract that the company might take and retain possession of the streets which it used, and that this contract was impaired by th£ passage of the ordinance complained of. This is the claim made by the complainant, and, if made in good faith, it affordil sufficient ground for the exercise of jurisdiction under that clause of the constitution of the United States which forbids the impairment of the obligation of contracts by state legislation. City of New Orleans v. New Orleans Waterworks, 142 U. S. 79, 12 Sup. Ct. 142; City Ry. Co. v. Citizens' St. R. Co.. Hi6 U. S. 057, 17 Sup. Ct. (i53. And thp!"p no reason to doubt the bona tides of the compan.y ill IlIakitlg- tlli:,; .-1;1:111.
"CoTiiisel for the complainanfsupporls:its claim on several distinct grotmds:. '. .. . : .' 't., I(is iJ;l!!fsted that the common the' of section 5263 ofihe. :of the United company the States, wpich provides that any right to maintain; and of ,over and the post the'(Tluted. States, or'whlch may hereand of telegraph shan be so constru<;tedand maintained ,as not to with'the ordinary travel on snch"post roads; and iUs' claimed that Main street, in the city of Charlotte, is such post road, and, futther; that this cbmpany is a ieompany, within the meaning of the statute,-citing in support 'of this, latter proposition City of ,;Richmond v,. Southern Bell Telegraph 28 C. C. A".659, 85 Fed. 19, and the cases relied upon by the courUn deciding that case. It is. urged that this provision of law cOBfers, upon tbecomplainant the right to occupy any street in the city of Charlotte which is a post road, without my opinion the let or:hindrance. from '. the c.ommon council. pC! suc.h effect.' It is mellely, and the power isgiv ll t,o existing rightl3,-among them, that oftge its munibipalities. to, police powers for the safety, health,and convenience ;of tbfl"PilbHc. ,In my opinion, it was not the intention of congress to arbitrarily disturb or interfere with theexerciseO;f the powers .of the A statute giving such authority w())1ld be anomalous, a,nd, validity. It a f\1leof general pplicatioD that legislation by congress in respect to all such rights aIiAprivileges, is deemed to he subject to local legi@llation enacted for the purpose of regulating the of such rights and. so .as.to protect the citizens of the 'state in respeCt to th()se inatterswhicb fa)! within the scope of the police Of course, it is not intended to say that the local authority. mayarbitrarUylnter,fere with such rights and privileges, and, under tge"guise of its ,conceded authority, enact legislation which is really designed, to accoPIplish some ulterior purpose beyond the scope of its legitimate power. . 2. It is further. contended,. that the action of the common council of the city constitutes an unlawful interference with commerce between the several states., Assunilng that this rule applies to telephonic communication asa means ofauch commerce, it is to be observed that the clause in the constitution which gives to congress the control of interstate commerce does not preclude the exercise of power in the states to impose regulationsd,esignedfor the safety of the local public. Shei-Iock v. .Alling, 9SU. S. 99; .Sjnith v. Alabama, 124 U. S. 465,8 Sup. Ct. 564; Kidd v.Eearson,128 U.s' l., 9Sup. Ot. 6; Plum. ley v.MMsachnsetts, 155 U. 13.461, 115 Sup.Ot. 154;Patapsco Guano Co. v. North, Carolina Board of 171 U. S. 345, 18 Sup.
to an impairment, of the obligation of the contract between the comphinant and the city. But here, again, as we do, that the contract Ci'xists, it'is well settled that, with rt-spect to contracts of
.' . ,' '. " . B.lt is also urged that. the ordinance of the commoI;l couDcil amounts
this charader, they are subject to sUl'h incidental modification as results from legislation required in the public interest It is a fundamental proposition that the legislature cannot deprive itself, by contract, of the power to pass such laws as are necessary for the general welfare of the public. Prominent among the kinds of legislation which may be enacted for that purpose are such as are designed for the public safety and convenience. New York & N. E. R. Co. v. Town of Bristol, 151 U. S. 556, 14 Sup. Ct. 437; Wabash R. Co. v. City of Defiance, 167 U. S. 88, 17 Sup. Ct. 748; Chicago, B. & Q. R. Co. v. Nebraska, 170 U. S. 57, 18 Sup. Ct. 5,13. 4. It is also said that the action of the common council deprives the complainant of its property without due process of law. This assumes that the complainant has a veste.d right to occupy this particular street. But this position is untenable. The city was required, when it admitted the complainant to its streets, to consider the publie interests, in defining in what particular streets the lines might be located. The then existing conditions might have made it proper that this street should be so used. But the construction of buildings on the street, and the multiplication of wires, may have rendered it now imprudent that they should remain. The same duty of provident supervision on the part of the city continues to rest upon it. If there was any vested right in the privilege which was accorded by the city to construct and maintain telephone lines in the streets, it is a privilege which must continue in subordination to the strictly legislative action of the city which it exercises in respect to the matters delegated to it by the legislature for the public welfare. Northwestern Fertilizing Co. v. Village of Hyde Park, 97 U. S. 659; Railroad Co. v. Gibbes,H2 U. S. 12 Sup. Ct. 255; Banking Co. v. Smith, 128 U. S. 179, 9 Sup. Ct. 47; Coatesv. Mayor, etc., 7 Cow. 585. Indeed,each and every of the grounds upon which the complainant relies is negatived by tht> application of one gf'neral proposition, which is that the city, being vested by the legislature with the power of supervision and control of its streets in the manner and to the extent in which that power is given by its charter, has the authority toinake . such a requirement as it made by the ordinance in question, provided it was made in good faith, and, can fairly be seen to be directed to a legitimate purpose falling within the purposes of the delegated authority. As has been already said, if this action of the common council was purely arbitrary, and had no fair tendency in the direction of t1).e public safety, the result would have different.. If power eXists, and the exercise of it is not clearly in disregard .of its proper bounds, the court isnotll.uthorized to determine the validity thereof by its own sense of the wisdom or expediency of the action taken, nor weigh in a nice balance the question of its justice in a general sense. 7 Am. & Eng. Enc. Law (2d Ed.) p. 676, and cases therein cited. In my judgment, there is no sufficient ground upon which the court would be war· ranted in holding that the common council in this instance transcended its It does not exclude the telephone company, but regulates the details of its operations in the service rendered, by requiring 'it to change, the location of this line to a near-by place in the city. And this does not impose a duty so burdensome as to excite any apprehen-
93 FEDERAL REPORTER.
sion tHat serious hardship is be that the city cannot compel the to erect its poles and stretch its wires in the alley; but it has the}.>ower, if the necessity therefor exists, to compel the discontinuance of the use of :Main sheet, and in doing this it is bound to provide, if practicable, a reasonable substitute therefor. This it 'lias done. The'result is that the motion must be denied. Let an or,derbe entered 'accordingly.
RYDER et aI. v. BATEMAN et ux. (Circuit Court, W. D. Tennessee. October 3, 1898.) No. 526.
REMOVAL OF CAUSES-POWER TO REMAND BEFORE TERM AT WHICH RECORD IS RETURNABLE.
Where, after the filing of a petition for removal, but before the first day of the next term of the federal court to which the record is returnable, application is made to such court for extraordinary relief, such as the appointment of a receiver to preserve the property, and by leave the record is filed, the court may then Inquire into Its jurisdiction; and if it will be without jurisdiction of the cause when the first day of the next term arrives, and especially if the su..."Pension of jurisdictit1n until that time is likely to result in injury to the parties, it may at once remand the cause to the state court.
2. RECJ£lVER-HEARING OF
Though a bill waives auswer under oath, a sworn answer may be considered as an affidavit, the same as the bill, on an application for a receiver.
GROUNDS FOR ApPOINTMENT.
A receiver will not be llppointed to take charge of real estate which Is in the possession of defendants, and to collect the rents therefrom, on the, applicati,on of complainants" who are out of possession, and seeking by their bill to establlsh a claim of ownership, where the only evidence before the court is the bill and the answer, which denies all the material allegations of the bill, and especially where it appears doubtful, on a consideration of the bill alone, whetp.er the complainant is entitled to possession.
8.AME-RIGHT OF TRUSTEE TO RECElvlil;a.
The fact that a complainant Is a trtlstee, and vested with the legal title to property, does not entitle her to the appointment of a receiver therefor, as against the beneficiary, who is' a married woman and in possession, where the trustee at the same time denies the trust, and asserts a ' hostile title to the property.
SAME-SUIT TO RECOVER REAL ESTATE-INSOLVENCY OF DEFENDANT.
A court is not justified in appointing a receiver for real estate, of which the defendant Is In the possession and enjoyment under a claim of absolute ownership, on the application of an adverse claimant, unless there Is a reasonable probability that complainant's right will be established, and that the property Is in danger, both of which conditions should be established to the satisfaction of the colirt. In the absence of such proof, the Insolvency of defendant Is immaterial; and It Is also Immaterial whether defendant has the legal title, or the entire beneficial interest, with the bare legal tltle vested in a trustee.
111 Equity. On
for appointment of a receiver.
, The original bill sets out the will of one George P. Cooper as the source of title to the real estate Involve(i; the Iris C. Ryder claiming a life estate under that will, and the plaJntilf Pauline A. Ryder, who is her daughter,