
    MUNICIPAL CORPORATIONS — TELEPHONE COMPANY.
    [Montgomery Circuit Court,
    June 24, 1897.]
    Shearer, C. J., and Summers and Wilson, JJ.
    State ex rel. E. P. Mathews, City Solicitor, v. Central Union Telephone Co.
    . 1. Effect of Agreement Between a Municipal Corporation and a Telephone Company as to the Mode of Use of its Streets.
    Where an agreement between a municipal corporation and a telephone company as to the mode of use of its streets has expired by limitation, the municipal corporation cannot oust the company from the use and occupation of its streets until it is made to appear that no agreement as to further use can be made and that the company, after such failure to agree, delays unreasonably to apply to the probate court to fix the mode of use as provided by law.
    2. The Municipal Corporation Has no Power to Fix the Rentals to be Charged by the Telephone Company for the Use of Its Instruments.
    In making an agreement as to the mode of use of its streets, etc., a municipal corporation has no power to fix the rentals to he charged hy the telephone company for the use of its instruments; and a refusal of the company to assent to a provision in that hehalf is not a failure to agree, within section 3461, of the Revised Statutes.
    Quo Wareanto.
    On tbe 16tb day of December, 1895, the city of Dayton, brought this action to onst tbe Central Union Telephone Company from tbe streets of tbe city upon tbe ground tbat, as its agreement with tbe city had expired, it was “exercising a franchise, privilege and right in contravention of law and without authority.”
    A demurrer to tbe petition was overruled, and on September 7th, 1896, tbe defendant filed an answer to which tbe relator interposed a demurrer which was overruled. A reply was then filed and tbe cause was submitted to tbe court upon tbe pleadings and evidence.
   Shearer, C. J.,

Without stating the issues which -are sufficiently familiar to counsel we proceed at once to the question whether, under the testimony herein, the relator is éntitled to the relief sought.

Section 3461, Revised Statutes, provides that, “the mode of use (of streets, etc., in a municipal corporation for telephone purposes) shall be such, as shall be agreed upon between the municipal authorities of the city or village and the company; and if they cannot agree, the probate court of the county, in a proceeding instituted for that purpose, shall direct the mode of construction so as not to incommode the public in the use of the same.

The contract under which the company has occupied and used the streets, etc., of the city of Dayton has expired; and for two years past negotiations have been pending between the city and the company looking to an extension of the franchise, but thus far no agreement has been readied.

An ordinance renewing the franchise was submitted to the city council by the board of city affairs, with the recommendation that it be passed. It was referred to the committee on law in conjunction with a special committee. This joint committee reported back the ordinance recommending certain amendments. Subsequently said ordinance was recommitted. The joint committee again reported back the ordinance with certain amendments, and said report was adopted. Subsequently said amendments were agreed to, and the ordinance as amended was passed and referred to the board of city affairs for approval. This was on the 14th day of April, 1896, four months after the commencement of this action.

No action having been taken by the board of city affairs, that body, on June 26, 1896,, was requested by the council to “either concur in the telephone ordinance or return the same to council;” and again, on November 13, 1896, a resolution was adopted by the council requesting the board of city affairs to return said ordinance “for consideration by this body before any final action is taken by this board.”

November 27, 1896, said ordinance, having been returned to council on the 25th of November, was referred again to said committee on law and said special committee, where, so far as we know, it still remains.

The testimony shows that, pending these negotiations, interviews were had between members of the council and representatives of the telephone company, in which the latter declared that the company would not assent to the ordinance proposed; the objection being the fixing therein of the rentals to be charged the patrons of the company lor the use of its instruments; and this is urged as evidence of the refusal of the company to come to an agreement in the premises.

This provision was a violation of the last clause of section 3461, above quoted, which declares that, “nothing in this section shall be construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley or public way, beyond what may be necessary to restore the pavement to its former state of usefulness. ” It is an attempt to secure indirectly a benefit which it eannot directly demand or receive. The company was justified in refusing 1o assent to this. It was not bound to submit to an illegal exaction, and the city could not lawfully insist upon it.

The company asserts that it is, and always has been, ready to accept and agree to a lawful ordinance, but says tbat none has ever been presented to it. It also avers that the city authorities have never been able to agree among themselves as to the mode of use of the streets, etc., of the city by said company; that so far as the mode of use is concerned, said company always has agreed and now agrees with the city. It also avers that the city authorities are now formulating an agreement. And we find from the evidence that this is true, and that the company is not in default.

E. P. Mathews, City Solicitor, and Charles Kumler, Prosecuting Attorney, for the city.

L. G. Richardson, General Solicitor, Chicago, and Gilbert H. Stewart, Columbus, for the Telephone Company. • .

Again, it is shown that during the period covered by the contract the city used and still uses a large number of the company’s poles for its police and fire department wires, and that it has in use, free of charge, for rental or service, about eighty of the company’s instruments.

Is the city in a position, under such a showing, to demand that the company shall be ousted from the use and occupancy of the streets and that it shall remove its plant, representing an enormous investment and thus deprive the public of the advantage of telephone service, merely because the company declines to assent to an illegal condition,

Certainly, no relief should be granted until it is made to appear that no agreement can be made, and that the company after such failure to agree, delays unreasonably to apply to the probate eourt to fix the mode of use as prescribed by law.

Writ refused and petition dismissed.  