Postal Telegraph Cable Co. v. Mayor of Baltimore

Bryan, J., delivered the opinion of the Court. On the twentieth of April, 1893, the Mayor, and City Council of Baltimore passed an ordinance which imposed a tax of two dollars on each telegraph, telephone, electric-light or other pole, which should be used in any of the streets, lanes or alleys of the city. But the ordinance excepted trolley poles, which were used exclusively for stringing thereon wires for use in the propulsion of street passenger cars by electricity. The Postal Telegraph Cable Company used and maintained five hundred and nine tele ⁵⁰⁹ graph, poles in the public streets of Baltimore, but refused to pay the tax on them.

A suit was brought by the Mayor and City Council to recover the amount due according to the terms of the ordinance. The Telegraph Company, instead of pleading to the declaration, filed an answer, composed of twenty-five sections. The plaintiff demurred, and, by consent of counsel, a pro forma judgment was entered, sustaining the demurrer, and determining that the plaintiff should recover the amount of the tax. The answer filed by the defendant seems to be framed on the model of equity proceedings.

Both in form and substance it is in absolute disregard of the practice prevailing in this State, and was necessarily held bad on demurrer. But as the object of this suit is to determine the validity of the ordinance in question, we shall express our opinion npon it, without regard to errors in practice and procedure. We shall assume (as is undoubtedly the case) that the defendant is a corporation under the laws of Yew York; and that it is engaged in operating telegraph lines over the post roads of several States of the Union, by making telegraphic communications for commercial and other purposes; and that it has accepted the provisions of the Act of Congress of July, 1866 (title 65 of U. S. Revised Statutes), relating to the occupancy of post roads; and that it is entitled to the privileges conferred by that Act. It has been decided by the Supreme Court of the United States that telegraphic communication between the different States is a species of interstate commerce, and that it is, therefore, within the control of Congress.

The telegraph companies which have accepted the provisions of the Act of 1866 are entitled to use the post roads of the United States for the operation of their lines. The streets of the city of Baltimore are post roads, and in ibis capacity are subject to' this Act of Congress. But it cannot be supposed that any power is conferred upon a telegraph company to use the streets without compensation. The Supreme Court ⁵¹⁰ has decided what the right to use a post road means.

It has said that this Act “gives no foreign corporation the right to enter upon private property without the consent of the owner and erect the necessary structures for its business; but it does provide, that whenever the consent of the owner is obtained, no State legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges. * * These (meaning post roads) are all within the dominion of the national government to the extent of the national powers, and are, therefore, subject to legitimate congressional regulation. No question arises as to the authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned,, be obtained by private arrangement with its owner.

No compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with. Only national privileges are granted.” Pensacola Telegraph Company vs. Western Union Telegraph Company, 96 United States, 1. It is not contended on die part of die plaintiff that any State authority can prevent or hinder interstate commerce, or that it can tax the receipts derived from it, or that it can require a license for carrying on the business, or the payment of a sum of money for such license.

The city ordinance does not exclude the telegraph company from the use of the streets as post roads; on the contrary, it recognizes such use, and exacts compensation therefor. The question arises whether such compensation can be lawfully demanded. The power of the Mayor and City Council of Baltimore over the streets cannot be regarded as within the region of debate. By legislative enactment, by long continued usage, and by repeated decisions of ora Courts, it has been determined that it has full and' complete con ⁵¹¹ trol over the streets and highways of the city.

The Act of 1890, chapter 370, declared that it should have power to regulate the use of the streets by telegraph, telephone, electric-light and other wires and poles; and that it might require the wires to be placed under ground. It may permit the erection of poles, determine where they may be placed, and .upon wdiat terms they may be used. The erection of a pole is the appropriation of a portion of a street, and the entire exclusion of the public from the use of it. It is necessarily to some extent an obstruction, and under some circumstances it may be a great public inconvenience.

The Telegraph Company has not the semblance of a right to appropriate any portion- of the streets in this way. It may be suggested that it might acquire such right by condemnation. We shall not discuss this question.