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chises and privileges, including the right of emi-
nent 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 service. That this
power could be delegated to municipal corpora-
tions is equally clear. The ordinances of the city
of St. Louis must not be in conflict with the gen-
eral laws of the State. If the city has had this
power to fix rates conferred upon it, then an or-
dinance which fixes reasonable maximum rates
would not be in confiict with the law under and
by virtue of which the defendant Is organized, and
which law constitutes its charter.

A telephone company, when once its poles are
planted and wires stretched on or over the streets
of a city, becomes in effect a monopoly, and the
company must submit to such reasonable regula-
tions as the municipal corporation has power to
prescribe. The important question, then, is
whether the city of St. Louis has the power to
enact the ordinance in question, the power to fix
reasonable maximum charges for telephone serv-
ice, and nothing to the contrary being shown in
this case, it is assumed that the rate fixed is rea-
sonable, so that the question is narrowed down to
one of power on the part of the city to fix tele-
phone rates at all. If the city has such power it
must be found in a reasonable and fair construc-
tion of its charter. Judge Dillon makes this full
and comprehensive statement of the rule as to
municipal powers : ^*It is a general and undis-
puted proposition of law that a municipal corpo-
ration possesses and can exercise the following
powers and no others : (1) Those granted in ex-
press words. (2) Those necessarily or fairly
implied in or incident to the powers expressly
granted. (3) Those essential to the declared ob-
jects and purposes of the corporation— not simply
convenient, but indispensable. Any fair, reason-
able doubt concerning the existence of power Is
resolved by the courts against the corporation,
and the power is denied.'* 1 Dillon Municipal
Corporations, (3d ed.) § 89. See also St. Louis v.
Hcfiaughlin, 49 Mo. 562. The rule, as before
stated, is in accord with what we said in the City
of St. Louis V. Herthel, 88 Mo. 128. The city
places some reliance on its general power to reg-
ulate the use of streets. This power extends to
new uses as they spring into existence from time
to time, as well as to uses common 'and known at
the time of the dedication or grant of the power
to the municipal corporation. Ferrenbach v.
Turner, 86 Mo. 416. The erection and mainte-
nance of telephone poles is one of new uses ; such
use is a proper use of the streets. Julia Building
Association v. Bell Telephone Company, 88 Mo.
258. That the company is subject to reasonable
regulations prescribed by the city, as to planting
its poles and stringing its wires and the like is
obvious. Such regulations have been obeyed by
this defendant. Conceding all this we are at a
loss to see what this power to regulate the use of
the streets has to do with the power to fix tele-

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No. 2

phone charges. The power to regulate the
charges for telephone service is neither included
in nor incidental to the power to regulate the use
of streets, and the ordinance cannot be upheld on
any such ground. By the fifth subdivision of
section 26, article 3 of the charter of St. Louis, the
mayor and assembly have power ^Ho license, tax
and regulate lawyers, doctors, etc., etc., telegraph
compaKies as corporation, etc., etc., and all other
business, trades, avocations or professions what-
ever.'^ Telephone companies are not mentioned,
though a vast number of trades, professions and
avocations are specified. They are not mentioned
in all probability because not existing at the date
of the charter. In construing this paragraph of
the charter we held in the case of City of St. Louis
V. Herthel, supra^ that architects were, for pur-
poses of construction, ejusdem generis with law-
yers, doctors, dentists and artists, and therefore
includes by the general concluding words. So in
this case it may with equal propriety be said that
telephone companies are ejusdem generis with tele-
graph companies, and therefore included in the
words of the general concluding clause.

It can make no sort of difference that these
telephone companies were not in existence at the
date of the charter. One of the objects had in
view by the use of the general clause was to pro-
vide for just such cases. As aptly observed in
that case, '^we are to construe it (the charter)
according to the intent of the framers, and that
intent must be gathered from the language and
objects of the charter provisions, and giving that
language and interpretation neither strict nor
strained. '^ Does then the power to regulate tele-
phone companies, when that term is coupled with
the powers to license and tax, give the city the
power to regulate the charges for telephone serv-
ice? By the general statutes of Massachusetts
of 1860, page 167, it is provided that the mayor
and aldermen of any city may make rules and
orders for the regulations of carriages, and may
receive $1 annually for each license granted to a
person to use a carriage in the city. Under this
power it was held, in Commonwealth v. Gkige, 114
Mass. 328, that a city might fix the compensation
to be charged by haclcney coachman. This case
would at first seem to furnish some authority for
the claim made by the city in this case. Turning
to other provisions of the charter we find that ex-
press power is given to establish ferry rates ; to
fix the rates for carriage of persons, and of wag-
onage, drayage and cartage of property; to reg-
ulate the price of gas, and to regulate and control
railways within the city as to their fares, hours
and frequency of trips. These express powers to
fix prices, fares and charges, in these specified
cases, are followed by no general words. With
this specific enumeration of cases where the city
may regulate the compensation to be charged, it
impliedly appears, that such a power was not in-
tended to be given in other cases. This conclusion
presents itself with more force when we see that
by the clause before quoted the city has power to

license, tax and regulate private carriages, omni-
buses, carts, drays and other vehicles; so that the
framers of the charter did not regard the power
to license, tax and regulate sufScient to give the
power to fix rates and charges. The power to
regulate, it may be conceded, gives the city the
right to malce police regulations as to the mode
in which the designated employment shall be ex-
ercised. 1 Dillon on Municipal Corporations, §
358. But talcing these charter provisions together
we think it would be going to an extreme length
to say that they confer upon the city the power to
fix telephone rates. If it has power to do this, it
may also fix the charges for telegraph services
and for the other designated services which are of
a public character. We conclude that the city
has no power to pass the ordinances in question .
by reason of any of the charter powers before
considered. This brings in the general welfare
clause, which is in these words : ^^Finally, to pass
all such ordinances, not inconsistent with the
provisions of this charter or the laws of the State,
as may be expedient, in maintaining the peace,
good government, health and welfare of the city,
its trade, commerce and manufactures, and to en-
force the same by fines, *' etc. Sometimes the
power to enact ordinances is given in general
terms, and in other eases there is a specific enum-
eration of the powers. *'This difference," says
Dillon, ^^is essential to be observed, for the power
which the corporation would possess under what
may be termed the welfare clause, if it stood
alone, maybe qualified, or where such intent is
manifest, impliedly take away by provisions spec-
ifying the particular purposes for which by-laws
may be made." 1 Dillon, Municipal Corporations,
(3d ed.) § 315. Under a general power like the
one now in question this court has held that the
city may pass ordinances concerning vagrants,
prohibiting persons from keeping open their
places of business on Sunday, and prohibiting
cruelty to dumb animals. St. Louis v. Schoen-
bush, 95 Mo. 618, and cases cited. These matters
are all within police regulations, strictly speakings
and naturally fall within the domain of municipal
legislation and regtdation. To say that under
this general power the city may fix rates for tele-
phone services would be going entirely too far.
This conclusion is manifest when we consider that
the charter points out with particularity those
cases in which the city may fix rates and charges.
What has been said in respect of the power to li-
cense, tax and regulate applies with equal force
here. We are not cited to, nor have we found,
any adjudicated case which will support the ordi-
nance now under consideration under the present
charter powers of the city of St. Louis. The
judgment in this case is therefore reversed.

NoTB.— In this decision the court has confined itself
to an interpretation of the charter of the city of St.
Louis, reyiewing the law applicable to city cbartess
very thoroughly. There are other questions in such
cases which should not be ignored.

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Vol. 28.



Obligati<m of Contracts, — Often the action of a
legislature is hampered by the proTision in the United
States constitution against impairing the obligation of
contracts.! Such contracts may arise in favor of a
corporation under the provisions of its charter,
whether it is created under a special act or under a
general incorporation law.^ In order to present such
an impediment, the power is often reserved to alter,
repeal or amend such incorporation act. In such
cases it is difficult to define the power of the State. It
cannot take away or destroy rights which have be-
come vested in the corporation by a legitimate use of
its powers. But it may exercise its power to almost
any extent to carry into effect the original purposes
of the grant and to secure the due administration of
its affairs, orlwhich will not defeat nor substantially
impair the object of the grant or any rights vested
under it, as the legislature may deem expedient to
secure that object or any other public or private

Legislative Control.— The legislature is only au-
thorized to regulate the charges for the use of tele-
phones because telephones are devoted to a public
use. ''Property becomes clothed with a public inter-
est when used in a manner to make it of public con-
sequence and affect the community at large. When,
therefore, one devotes his property to a use in which
the public has an interest, he in effect grants to the
public an interest in that use, and must submit to be
controlled by the public for the common good, to the
extent of the interest he has thus created. He may
withdrawthis grant by discontinuing the use; but as
long as he maintains the use, he must submit to the
control." 4 Other authorities hold that only when
some privilege in the bestowal of the government is
enjoyed in connection with the property, is it affected
with a public interest in any proper sense.^ Such
power of regulation is not a power to destroy. Under
pretense of ^ regulating, a legislature cannot require a
railroad corporation to carry persons or property
without reward.* The privilege of charging the rates
which the railroad deems proper is a franchise, which
may be taken away under the reserved power of
amending ^or altering its charter; but the right to
charge a reasonable compensation would remain as a
right under the. general law governing natural per-
sons, and not as a special franchise or privilege.^ If
the legislature can regulate, it has the right to estab-
lish the maximum charge. It is not a matter for
judicial determination.' If the law is unjust or inex-
pedient, the remedy is in legislation, and not in the
courts.* Where, however, the legislature has not
regulated the matter, it is for the courts to determine
what are reasonable The right of a State to
reasonably limit the amount of charges by a railroad
company for the transportation of persons and prop-
erty within its jurisdiction cannot be granted away by

1 U. 8. Const, art. 1, { 10.
s MiUer ▼. State, 16 WaU. 478.

« Holyoke Company t. Lyman, 16 Wall. 600; New Or-
leans V. Great 8., etc. Co., 26 Cent. L. J. 288, and note.

4 Mann y. Dlinois, M U. 8. 126.

5Ladd y. Southern, etc. Co., 63 Tex. 172; Cooley's
Const. Limit. (6tb ed.) 789; dissenting opinion, Mann v.
niinois, supra,

• Bailroad Commission Cases, 116 U. 8. 881.

7 Peik y. Chicago, etc. B. Co., M U. 8. 164.

5 Mann y. Illinois, supra,

9 Uockett y. State, 106 Ind. 260.

10 Chicago, etc. B. Co. v. Iowa, 94 U. 8. 166.

its legislature, unless by words of positive grant or
words equivalent in law.^

The right to fix, regulate and receive tolls does not
take away the State power to act upon the reasonable-
ness of such charges.!* In case of doubt, whether by
grant or otherwise the State has bargained away its
power to regulate the charges of a railroad, the right
is construed to remain in the State.i3

Telephones, —The State has a right to prescribe the
maximum price which a telephone company shall
charge for the use of its telephones.i4 Such compa-
nies must serve all persons alike, and may be com-
I>elled to place their instruments in any plaoe of busi-
ness upon a tender of their charges.i'

The patent of the telephone gives the exclusive
right to make, use and vend the tangible property
brought into existence by a practical application of
the discovery covered by the letters patent for a
limited time; but the right must be exercised in sub-
ordination to the local retrulations established by the
State. All the instruments and appliances used by a
telephone company in its business are in legal con-
templation devoted to a public use.i' However, it
has been held, that if the telephone company is dissat-
isfied with such regulations and withdraws its instru-
ments from the State, that the citizens of such State
may be debarred the use of telephones, since such use
is an infringement of the company's patent.^^

S. S. Merrill.

11 Stone y. Fanner's, etc. Co., 116 U. 8. 907; Chicago,
etc. B. Co. y. Iowa, tupra.

15 Stone V. Farmer's, etc. Co., supra,

13 Ba|lroad Commisslnn Cases, 116 U. 8. 807.

14 Hockett y. State. $upra.

u State y. Telephone Co., 17 Neb. 126; State v. Tele-
phone Co., 86 Ohio St. 296.

16 Hockett y. State, supra,

17 American, etc. Co. v. Cashman, etc. Co., 86 Fed.
Bep. 488.


Of AMaIj Uie€iinr«Bt Oplnloiui of all Uie State
and Territorial Oonrta of I«ast Bosort,
and of tlio AoinroiiiOt Clrealt and Dis-
trict Courts of tlio Halted States.

CALirORllIA 8, 7, 14, 49, 82, 97, 110, 166, 211, 212

COLORADO 18,16,19,20,22,100,169,188

DAKOTA 10,109,146,160,188,198

GBOBOIA 66,64,114,168

Illinois 219


Kansas 2,9, 21, 41, 61, 62, 86, 96, 96, 106, 107, 149, 169, 166, 167

ESNTUOKT 74, 101

MaSSAGHUSBTTS 204,206,216

MICHIGAN 26, 88, 80, 68, 67, 72,78, 90, 102, 118, 186, 147. 160, 162

163, 170, 178, 184, 187, 189, 190, 20J.
MINNESOTA 6, 11, 24, 28, 81, 84, 40, 42, 48, 87, 94, 166, 182, 200

216, 220.

MISSOURI 16, 17, 60, 61, 78, 81, 92, 188, 146, 167, 18&

MONTANA 18, 61, es, 70, 80, 86, 112, 127, 180

NBBRA8KA 86, 47, 69, 129, 182, 154, 168, 161, 166, 199

NORTH Carolina 28, 80, 37, loe, 126, 137, 144, 206

Ohio 202,217

OrboON 66,76,79,88


South Carolina 12,26,86,89,104,118,210


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No. 2-

TBXAJ 4, 6, S7, 68, 09, 68, 66, 67, 68, 71, 76, 81, 96, 9 108,106

ISO, 121, 128, 134, 151, 174, 191, 197, 218
URITBD Statks 0. 0. 88, 77, 88, 91, 116, 116, 12i, 124, 186, 141

Ukitbd StaTBS D. O... 46, 181, 140, 142, 148. 102, 179, 180, 192
UKITBD STATBS 8. 0. 29, 46, 48, 60, 96, lU, 119, 123, 125, 148

164, 172, 181, 186, 194.
WI8CQH8IH 8, 88, 44, 68, U7, 188, 189, 163, 178, 198, 196, 196, 901


1. Admibautt— State Ck>art8. Jnrladtotlon of State

eonrts ot a salt, in case for damages oaused by flres
from a buming scow. Is dearly preserved by theja-
didary act. — Chappell v. Bradskaw, U. 8. 8. 0., Oct. 29,
1888;9 8.W.Rep. 40.

2. Afpbai.— Assignment of Error. Where, In the

assignment of errors,'only errors occurring at the trial
are complained of for which a new trial Is prayed, but
the action of the court l>elow In oTerroling the motion
Is not assigned for error, no question Is properly raised
In the appellate court. ~ F%r$t N. Bank v, Jqff^, S. 0.
Kan., Nov. 10, 1888; 19 Pao. Bep. 626.

8. AppbaI/— Bill of Exceptions— Signing. Where a

bill of exceptions Is meager. Inaccurate and partial,
omitting important evidence, and condensing Into four
and one half pages of manuscript over 100 pages of
type -writing, the Judge will not be required to sign or
amend the bill. — Samome v, Myrta, 8. 0. OaL, Nov. 19,
1888; 19 Pac Bep. 677.

4. Appbal — Findings by Judge — Beview. The

llndings of s Judge on questions of fact, where the evi-
dence is conflicting, are conclusive on appeal.— JKmomH
P. R, R. V. ColquUt, 8. 0. Tex., Oct. 23, 1888; 9 8. W. Bep.

6. AppbaI/— Forcible Entry and Detainer. An ap-
peal lies to this court from the municipal court of Min-
neapolis, in actions of forcible entry and unlawful de-
tainer. — Botton B. Co, V, Bu^ngUm^ 8. 0. Minn., Nov. 18,
1888; 40 N.W. Bep. 861.

6. Appbal— Justices — District Court. No appeal

Ues from a Judgment of a district court in a case ap-
pealed from a Justice, under Texas laws, where the flue
Imposed Is less than ^100. — Johnmm v. 8taie,Tex, Ct.
App., Nov. 14, 1888; 9 S. W. Bep. 61L

7. APPBAL— Matters not of Becord. On appeal the

court cannot notice affidavits showing the circum-
stances under which the action was dismissed below,
when it is not shown that said affidavits were used in
that court.— Pardy v, Montgomery, 8. 0. Oal., Nov. 2, 1888;
19 Pac. Bep. 630.

8. APPBAL— New Trial— Discretion. The granting

of a new trial will not be reversed on appeal, unless
there appears to have been an abuse of the discretion
of the trial court, — Smith v, Ckampagne, S. O. Wis., Nov.
S, 1888; 40 N. W. Bep. 898.

9. APPBAL— New Trial— Discretion. Where a new

irial was granted, but the grounds on which the court
granted it do not appear in the record, but errors suf-
ficient for such action do appear therein, such order
panting the new trial will not be disturbed.— Barney 9.
Vudtey, 8. 0. Kan., Nov. 10, 1888; 19 Pac Bep. 660.

10. Appbal— Orders at Chambers. Under Dakota

law, anappeal direct from an order at chambers cannot
be sustained.— i?0f<t9(ci; v. Knight, 8. O. Dak., Oct. 1, 1888;
40 N. W. Bep. 844.

11. Appbal— Orders — Becord. Upon an appeal

from an order error is not disclosed from the fact that
the moving papers, upon which the order was made, do
not contain averments of prior proceedings in the same
cause, of which the court will take Judicial notice. —
Reee v. Lowemtein, 8. 0. Minn., Nov. 16, 1888; 40 N. W. Bep.

12. APPBAL— Order — Vacating Arrest. An order

refusing to vacate an order of arrest does not come
within the law providing for the review, on appeal
from final Judgment, of any intermediate order involv-

ing the merits. — Miir§t v. SamueU, 8. 0. 8. Oar., Oct. 29,
1888; 7 8. E. Bep. 822.

18. APPBAL— Becord— Errors. Instructions given

and refused, but not Incorporated in the bill of excep-
tions, will not be considered on appeal.— Witcher v, Wat'
Une, 8. C. Colo., Oct. 26, 1888; 19 Pac. Bep. 640.

14. APPBAL— Becord— Correction. The rule of the

supreme court allowing the correction of errors In the
transcript by the clerk's certificate of so much of the
record as may be necessary, does not apply to the case
of failure to procure from the trial Judge a sufficiently
full statement of the case. — Fagam «. Cartg^ 8. 0. Oal.,
Nov. 19, 1888; 19 Pao. Bep. 684.

16. APPBAL— Bemanding— Court of Appeals. The

amount Involved not exceeding |3, 600, and title to real
estate not being involved, nor any question conferring
Jurisdiction on the suprem«t court, the case is trans-
ferred to the court of appeals. — Sdmltz «. Tatum, 8. 0.
Mo., Nov. 12, 1888; 9 8. W. Bep. 688.

16. APPJBAL— Beview— Objections not Baised. The

question, whethe the defendant was a resident of the
county where sui was brought, not having been raised
In the county court, will be considered waived. — Colo^
rado C.R.R.V. CaldweU, 8. 0. Colo., Oct. 26, 1888; 19 Pao.
Bep. 642.

17. APPBAL— Beview — Weight of Evidence. This

court will not interfere with a verdict for the defend-
ant on the ground that it is against the evidence, unless
it satisfactorily appears that the verdict was the result
of corruption, prejudice or passion.— CartUh v, Rieheeon,
8. C. Mo., Nov. 12, 1888; 9 8. W. Bep. 688.

18. APPBAL— Waiver of Objections. One who re-
serves exceptions to an order directing him to answer
an amended complaint within a specified time, and also
complies with the order, thereby waives the right of
exception.— Barber v. Briecoe, 8. C. Mont., Sept. 15, 1888;
19 Pac. Bep 6s9.

19. Appbal — Weight of Evidence. The evidence

sustains the Judgment, which is affirmed. — Parker v
Freeman, 8. C. Colo., Oct. 81, 1888; 19 Pac. Bep. 601.

20. APPBAL — Weight of Evidence. The evidence

warranted the finding of the Jury and the verdict will
not be disturbed. — Oroee v. WiUkine, 8. C. Colo., Oct. 26,
1888;19Pac. Bep. 689.

21. APPBAL— Weight of Evidence. Where a ques-
tion of fact is submitted to a Jury, and there is com-
petent evidence tending to establish such fact, the
verdict of the Jury is conclusive.— Cavender v. Fair, 8. C.
Kan., Nov. 10, 1888; 19 Pac. Bep. 638.

22 APPBAL— Weight of Evidence. Where the de-
fense is a counterclaim, which is supported by one
witness and denied by the plaintiff, a finding for plaint-
iff cannot be disturbed on appeal.— Denver F, B, Co, v,
Piatt, 8. C. Colo., Oct. 16, 1888; 19 Pac Bep. 686.

23. ARRBST- Slander of Title— Discharge. An order

of arrest, under Code N. C. { 291, upon a complaint alleg-
ing slander of title, should be vacated, when the facts
are vaguely alleged In the complaint.— iTarHs v. Sweeden,
8. C. N. Car., Nov. 6, 1888; 7 S. B. Bep. 801.

24. A88IONMBNT FOB CRBDETORS—Notlce— Debtors.

If a debtor without actual notice of an assignment for
the benefit of creditors, though it has been duly pub-
lished, pays the assignor, he will be discharged from
the debt. — Graham v. Evan», S. O. Minn., Nov. 13, 1888; 40
N. W. Bep. 368.

25. AssiONMBKT FOB Cbbditors — Fraudulent Prefer-
ences. Under Michigan law, a bill which alleges

that the assignee In an assignment for the benefit of
creditors advised a fraudulent mortgage of the asaijai-
or's property, may be maintained to set it aside and
prevent its payment, without previously obtaining an
order of court requiring the assignee to institute the
proceedings. — Bumham v, HaeHne, S. C. Mich., Nov. 1,
1888; 40 N. W. Bep. 827.

26. AssiONMBMT FOB Crbditors- Preferences. ^A,

while in New. York, executed a mortgage on his stock of
goods In South Carolina to his .wife for money ad-

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Vol. 28.



▼anoed, and two days later two mortgages to a tormer
partner to secure demanded notes, which were substi-
tnted for notes not due. All parties returned to South
Carolina and In a few days A surrendered the property
to the mortgagees and left the State: J7eld, that the
mortgages amounted to a general as8i£^ment, under
South Carolina law, and were void as giving prefer-
ences.— Meinhardv. StrUkUmd, S. C. 8. Car., Oct. 29, 1888;
7 8. B. Bep. 888.

27. ASSUMPSIT — Work and Labor — Evidence. A

was working under B, a contractor, and fearing he
would not be paid, was about to leave when the agent
of the railroad induced him to continue to work under
promise to pay him. The greater part of the work was
then done: Held, that a verdict against the railroad, for
an amount nearly equal to plaintifTs whole claim for
work done before as well as after the promise, should
be set aside. — Oalvttkm etc, R. B. v, MovfHn, 8. C. Tex.,

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 12 of 151)