Western Union Tel. Co. v. City of Visalia

McFARLAND, J.

The plaintiff is a corporation organized under the laws of the state of New York and engaged in the telegraph business. It has been in existence as such corporation since before July 24, 1866. The defendant, the city of Visalia, is a municipal corporation organized and existing under the laws of the state of California. Plaintiff has numerous lines of telegraph running through many parts of California and other American states and adjoining countries, and one of its lines runs through the streets of the defendant to the extent of three miles of poles and twelve miles of wires. The defendant assessed for the year 1904 all these poles and wires and all other tangible property of plaintiff within said boundaries, and all the taxes levied upon such property were paid by plaintiff; but defendant for said year also assessed plaintiff for “a franchise granted by the city of Visalia, $1500,” and levied a tax thereon of thirty dollars, and was about to levy upon and sell all plaintiff’s said poles and wires to satisfy said tax, when plaintiff commenced this action to restrain such sale. Judgment went for defendant in the trial court, and from the judgment plaintiff appeals, bringing up the judgment-roll and a bill of exceptions. As respondent does not make any point as to the remedy asked by appellant, we will assume for the purpose of this appeal that the remedy is a proper one, and determine the case, as both parties seem to want it determined, upon its real legal merits.

The case was tried by the court without a jury upon a stipulated statement of facts, with leave to either party to introduce further evidence, and some further evidence was introduced by plaintiff. The character of plaintiff, and its rights, franchises, and immunities, have been before this court in other cases, and particularly in the ease of

San Francisco

v.

Western Union Tel. Co.,

96 Cal. 140, [31 Pac. 10]. It was

[746]

determined in that case—and is the lawv-that by an act of Congress passed April 24, 1866, (14 U. S. Stats, at Large, p. 221,) and the subsequent acceptance of its terms by the appellant herein, the appellant was granted the franchise of constructing, maintaining, and operating its lines of telegraph over the public domain and across and under navigable waters, and along the military and post roads of the United States [U. S. Comp. Stats. 1901, p. 2707], in such manner as not to obstruct or interfere with ordinary travel thereon; that by section 3964 of the Revised Statutes of the United States, it was provided—as Congress had the right to provide—that “all public roads and highways while kept up and maintained as such are declared to be post roads,” and by section 2618 of the Political Code of this state it is provided that public “highways” are “roads, streets, alleys,” etc., laid out, erected, and dedicated to the public; that by said act of Congress, and its acceptance by appellant, the latter became an instrumentality of the United States in carrying out its governmental functions, and that therefore under the principle declared in