State ex rel. Shaver v. Iowa Telephone Co.

175 Iowa 607

• Court: Supreme Court of Iowa
• Decided: November 1, 1915
• Status: Published

Opinions

Deemer, J.

It is charged and admitted that the city of Des Moines is a city of the first class. Defendant is a corporation for pecuniary profit, organized in August, 1896, under the laws of Iowa. Its articles of incorporation provide, among other things:

The general nature of the business to be transacted by this corporation shall be the acquiring by purchase, lease or otherwise; constructing, maintaining and operating telephone plants, both local and long distance, including telephone exchange systems and public and private telephones and telegraph lines. The amount of the authorized capital stock of this corporation shall be the sum of $10,000,000.

The telephone plant of defendant includes 40 exchanges, located in 32 counties within the state of Iowa, including an exchange in the city of Des Moines, and 8,998 miles of poles, upon which are carried long distance or toll lines, extending through 91 counties in Iowa; its subscribers number 65,000; it affords connections with more than 326,000 connecting stations, being approximately 96 per cent, of the 340,000 telephones within the state of Iowa. Bach of defendant’s telephones within the city of Des Moines, Iowa, is connected with its long distance wires, and each of said telephones may be and is used for the purpose of communication with points outside of the city of Des Moines. Defendant’s telephone lines in the state of Iowa are connected with telephone lines in states other than the-state of Iowa", and conmmnication may be had by telephone as far east as New York and as far west as the city of Denver.

The Central Union Telephone Company was, in the year 1881, a foreign corporation, organized under the laws of Illinois, and continued such from 1881 to 1896, with its principal place of business in the city of Chicago. On or about the year 1881, the said Central Union Company, in pursuance of the power and authority granted by Section 1324 of the Code of Iowa of 1873, as amended by Chapter 104, Acts of the Nineteenth General Assembly, commenced to acquire, construct, maintain and operate telephone lines in Iowa, and so continued until about September, 1896; between the years 1881 and 1896, said Central Union Company operated telephone lines extending from Des Moines to Davenport, from Davenport to Burlington, and from Burlington to Keokuk, and from each of said cities to other cities and towns in Iowa; said Central Union Company furnished the public means of communication by telephone between the cities and towns through and to which its said telephone lines extended, also to the inhabitants of each of said cities and other cities in Iowa, by means of local communication by telephone with the other inhabitants of each of said cities and towns; for the purpose of furnishing said communication, said Central Union Company, during said years, operated in each of the cities before named, and in other cities in the state of Iowa, what were known as local exchanges, by means of which the inhabitants of each of said cities who desired telephone service secured connection with the local exchange, through which they could communicate by' telephone with other telephone patrons in the same city and with persons in other cities and towns; the lines and apparatus were used by patrons for communication between all of said cities and towns, as well as local communication. In acquiring, constructing, maintaining and operating its said telephone system, the said Central Union Company occupied the streets, avenues, alleys and other public places of the cities before mentioned, and cities and towns through and to which its lines extended, as well as the country highways connecting said cities and towns, with its poles, wires and other apparatus.

The defendant contends that the said Central Union Company acquired, possessed and owned the right to occupy in perpetuity the streets, avenues, alleys and other public places in the city of Des Moines, as well as in the other cities and towns through and to which its line extended, and the country highways connecting said cities and towns, with its poles, wires and other apparatus, for the purpose of carrying on a telephone business and furnishing to the public means of communication between said cities and towns, as well as local communication between the inhabitants of each of said cities and towns. About September, 1896, the said Central Union Telephone Company, for a valuable consideration, sold, assigned and transferred to this defendant all its telephone property in Iowa. Defendant contends that such transfer includes the right to occupy in perpetuity the streets, avenues, etc., in all the cities named, and other cities and towns in the state in which it was then operating telephone lines, as well as the country highways extending between said cities and towns, with its poles, wires, etc., for the purpose of carrying on a telephone business. About the date last named, defendant took possession of said telephone property and has since owned and operated the same, and occupied and is now occupying the streets, avenues, etc., of all said cities and towns, and the said country highways, and it has used the streets, highways, etc., for the purpose of carrying on both long distance and local telephone communication.

Section 2158 of the statute, which is the same as Section 1324 of the Code of 1873, was in force when the Central Union Company was organized, except that in 1882, by Chapter 104 of the Acts of the Nineteenth General Assembly, the words "or telephone,” in the third line of Section 2158, were added. The Central Union Telephone Company was incorporated in 1881, so that its franchise, in the sense that it had a right to exist and transact business under its articles of incorporation, would date from 1881; but in the sense that it had a franchise, or the right to use the streets, highways, etc., under the grant from the state, it is not so clear from the allegations of the answer that the company commenced to occupy the streets before the amendment of 1882 to Section 2158 of the Code. The allegations are:

‘ ‘ That on or about the year 1881, the said Central Union Telephone Company, in pursuance of the power and authority granted by Section 1324 of the Code of Iowa of 1873, as amended by Chapter 104 of the Acts of the Nineteenth General Assembly, commenced to acquire, construct, maintain and operate,” etc.

Section 1619 of the present Code is substantially the same as Section 1090 of the Code of 1873; the effect of the change will be hereafter noted. The defendant has not obtained the consent of the city of Des Moines or the electors therein to occupy the streets, highways, etc., for its local exchange or system in the city, as required by other sections of the statute subsequently enacted; and it contends that it is not required to do so, because it obtained its authority from the state under prior statutes, and that, by accepting its franchise or right to use the streets, a contract obligation was created, which the legislature has no power to change.

Plaintiff contends that the power which had been reserved under the Constitution and the earlier statutes has been exercised by the enactment of Sections 775 and 776 of the Code of 1897; and that, before defendant may occupy the streets and other places in the city with its wires, poles and other supports, the defendant must obtain the consent of the city and its electors.

1• telesrapi-is cWseTrevoeapower of state, II. As already indicated, defendant contends that: (a) A direct grant by the legislature to a public utility corporation to erect its plant upon the highways of the state, upon acceptance by a corporation coming within the terms 0f grant, by the erection and operation of plant, involving an expenditure of money, constitutes a contract between the state and such corporation which, in the absence of reserved power in the legislature in effect at the date of the grant, cannot be impaired by subsequent legislation; (b) any legislation purporting to repeal or impair such grant is in violation of Section 10 of Article I of the. Constitution of the United States and Section 1 of Article XIY of the Amendments to that Constitution, and also in violation of Sections 1 and 21 of Article I of the Constitution of the state of Iowa; (e) neither by Section 12 of Article 8 of the Constitution of Iowa nor by Section 1090 of the Code of 1873 (Section 1619 of the Code of 1897) has power been reserved in the legislature to repeal a legislative grant, under the circumstances set forth. Even if the legislature has reserved the power to repeal the grant to telephone companies, under the provisions of Section 1324 of the Code of 1873, as amended, no such right has been in fact exercised by the enactment of Sections 775 and 776 of the Code of 1897.

These contentions present the main propositions in the case. At the outset, it must be conceded that, under our previous holdings, the defendant, in virtue of Section 1324 of the Code of 1873, as amended by Chapter 104 of the Acts of the Nineteenth General Assembly, acquired the right to occupy the streets and alleys of the city of Des Moines with its poles and wires, for the purpose of conducting a telephone business. Chamberlain v. Telephone Co., 119 Iowa 619; State v. Nebraska Telephone Co., 127 Iowa 194.

In the Chamberlain case, supra, it is said:

“Whatever rights telegraph companies were given by the original act were conferred upon telephone companies by Chapter 104 of the Laws of the Nineteenth General Assembly. It matters not .whether telegraph companies made a limited use of the streets and alleys of cities or not. They were not so limited by the law, and this was well known. It was also known by all that the principal business of telephone companies was confined to urban ways. True, they had then used rural ways, to a limited extent, and it may have been apparent to the legislature that the rural service would be extended, and the long distance phone finally become one of the great public conveniences and necessities which it now is. But notwithstanding this, they were given, the use of highways and streets without limitation, and without control by city authorities. If the legislature had intended to limit their use of the streets to long distance service, it would doubtless have done so by the use of apt words. That such was not its intention is further manifest from the fact that, prior to the amendatory act in question, this court had practically held that the words ‘telegraph companies,’ as used in the statute, included ‘telephone companies.’ ”

In the Nebraska Telephone Co. case, supra, we said:

“Section 1324 of the Code of 1873, as amended by Chapter 104, page 100, of the Laws of the Nineteenth General Assembly, gave to any person or company the right to construct a telegraph or telephone line along the public highways of the state; and, under the authority so given, the defendant had the right to occupy the streets and alleys of the city, as well as the rural highways or roads. Chamberlain v. Iowa Telephone Co., 119 Iowa 619; State v. City of Red Lodge (Mont.), 76 Pac. 758. In the Code of 1897, the words ‘public roads’ are used in the place of the words ‘public highways,’ used in the former statutes; and, as we understand the appellant’s argument, it is claimed that the change limits the defendant’s right in the streets of the city to those actually occupied by it prior thereto. Whether the change was intended to distinguish between streets and rural ways, we need not determine; for whatever the intent as to that, it is apparent that the change was not intended to, and does not, limit or affect the right of those who accepted and acted upon the grant given by the former statutes. The grant to use the streets was without limitation as to territory, and under its authority, there can be no question as to the right to extend the service to meet the demands of the public. The very nature of the business demands the use of many streets, and may demand the use of every street in the city; and this was doubtless contemplated by the legislature when the unlimited grant was made. Chamberlain v. Telephone Co., supra; Duluth v. Duluth Telephone Co., 84 Minn. 486 (87 N. W. 1127). True it is that the acceptance of the grant may limit its operation; but, in the absence of an acceptance which does so, it must be presumed, from the. nature of‘the business and the preparation made therefor, that the acceptance of the grant and the privileges thereunder was as broad as the grant itself, and included the right to extend the service as required by public necessity. Duluth v. Duluth T. Co., supra; Michigan Telephone Co. v. City of Benton Harbor, 121 Mich. 512 (80 N. W. 886, 47 L. R. A. 104).”

While these holdings are challenged, and we are asked to recede therefrom, a re-examination of the question in the light of the arguments now made confirms us in the conclusion that they are right, and that they are amply fortified by a long line of decisions rendered both before and after their pronouncement. See City of Duluth v. Duluth Tel. Co. (Minn.), 87 N. W. 1127; Wisconsin Tel. Co. v. Oshkosh (Wis.), 21 N. W. 828; State v. Central New Jersey Telephone Co. (N. J.), 21 Atl. 460; State v. Milwaukee (Wis.), 113 N. W. 40; Michigan Tel. Co. v. City of Benton Harbor (Mich.), 80 N. W. 386; City of Wichita v. Missouri & K. Tel. Co. (Kas.), 78 Pac. 886; City v. Southwestern Telegraph & Telephone Co. (Tex.), 106 S. W. 915, 917; State v. City of Red Lodge (Mont.), 76 Pac. 758; City v. Old Colony Trust Co., 132 Fed. 641. That this statute, as amended, constituted a grant to the telephone company, which, upon acceptance, became a contract between the state and the telephone company, is also well settled by authority. Russell v. Sebastian, 233 U. S. 195; New York Line v. Empire Subway Co., 235 U. S. 179; Walla Walla v. Walla Walla Co., 172 U. S. 1, 19; City of Owensboro v. Cumberland Tel. & Tel. Co., 230 U. S. 58.

At the time the defendant accepted the grant, neither the city o£ Des Moines nor any other municipality in the state had power to grant a franchise to any telegraph or telephone company to occupy or use any of its streets or alleys. This was a power which the legislature, the seat of all authority in the matter down to that time, reserved to itself; although it may be granted that, in the exercise of its police power, the city, before any authority was given it, as well as after it had been given, might exercise such power in a regulatory manner. The original grant by the legislature, being unlimited as to time, gave to whoever might accept the grant a special franchise in perpetuity, subject only to a proper exercise of the police power and to any expressly reserved power. City of Louisville v. Cumberland Co., 224 U. S. 649; Detroit v. Detroit R. Co., 184 U. S. 368; Owensboro v. Cumberland Tel. Co., 230 U. S. 58; Town of New Decatur v. American Tel. & Tel. Co. (Ala.), 58 So. 613; Blair v. Chicago, 201 U. S. 400; City of Seattle v. Columbia & P. S. R. Co. (Wash.), 33 Pac. 1048; Suburban Electric Co. v. East Orange (N. J.), 41 Atl. 865.

In the Owensboro case, supra, the court said:

“That an ordinance granting the right to place and maintain upon the streets of a city poles and wires of such a company is the granting of a property right has been too many times decided by this court to need more than a reference to some of the later cases . . . As a property right, it was assignable, taxable and alienable. Generally, it is an asset of great value to such utility companies, and a principal basis for credit. The grant by ordinance to an incorporated telephone company, its successors and. assigns, of the right to occupy the streets and alleys of a city with its poles and wires for the necessary conduct of a public telephone business, is a grant of a property right in perpetuity, unless limited in duration by the grant itself, or as a consequence of some limitation imposed by the general law of the state, or by the corporate powers of the city making the grant. . . .If there be authority to make the grant, and it contains no limitation or qualification as to duration, the plainest principles of justice and right demand that it shall not be cut down, in the absence of some controlling principle of public policy. This conclusion finds support from a consideration of the public and permanent character of the business such companies conduct, and the large investment which is generally contemplated. If the grant be accepted and the contemplated expenditure made, the right cannot be destroyed by legislative enactment or city ordinance based upon legislative power, without violating the prohibitions placed in the Constitution for the protection of property rights. To quote from a most weighty writer upon municipal corporations, in approving of the decision in People v. O’Brien, supra, a decision accepted and approved by this court in Detroit v. Detroit Street Railway, supra, ‘ The grant to the railway company may or may not have been improvident on the part of the municipality, but having been made' and the rights of innocent investors and of third parties as creditors and otherwise having intervened, it would have been a denial of justice to have refused to give effect to the franchise according to its tenor and import, when fairly construed, particularly when the construction adopted by the court was in accord with the general understanding. In the absence of language expressly limiting the estate or right of the company, we think the court correctly held, under the legislation and facts, that the right created by the grant of the franchise was perpetual, and not for a limited term only.’ Dillon on Mun. Corp. (5th Ed.), Sec. 1265.”

In the Seattle case, we find this language:

“Property rights acquired under and by virtue of a franchise thus granted are perpetual, unless otherwise limited in the grant; and there was no limit in this instance, and such franchises are not void in consequence thereof. There is no sound reason why a municipal corporation may not bind itself in this particular, as well as an individual may. On the contrary, well recognized principles of justice require that it should be so bound, to the end that property rights may be made stable and certain, and the municipality is sufficiently protected under such circumstances; for should it become necessary to thereafter undo the work and terminate the rights granted, and to take the property of the corporation acquired in pursuance and by virtue thereof, it may do so under the exercise of the power of eminent domain upon making compensation; and this is a sufficient protection for the rights of the city, and one which, at the same time, affords protection to the rights of the respondents.”

That the legislature granted a special franchise to the defendant, rather than a mere revocable license, should, we think, be conceded; but that this grant was at all times subject to regulation and control, either by the city or the state, in the proper exercise of the police power, should also be conceded; for neither could bargain away this power, and all property, whether held by a person or corporation, is subject at all times to regulation and control under the police power, and at times subject even to destruction under this power. It is also subject to taxation, and to the right of the state to take it, in the exercise of the power of eminent domain.

2' ti°onTllaV: perpetuáffrakchise: reserved power to repeal: telephones. A corporation itself, under the reserved power found in the Constitution, to which we shall hereafter refer, is not only-subject to regulation, but its charter, which is its very life, may be repealed at the discretion of the legislature. If, in this connection, it be conceded that the acts which it is claimed forfeited . • n defendant s rights were not m the exercise of the police power of either the state or the city, what was done must be said to have been in the-exercise of the reserved power of the state; and reliance is placed upon See. 1090 of the Code of 1873 (Sec. 1619 of the Code of 1897), and Sec. 12 of Article 8 of the Constitution. The former reads as follows:

“The articles of incorporation, by-laws, rules and regulations of corporations hereafter organized under the provisions of this title, or whose organization may be adopted or amended hereunder, shall at all times be subject to legislative control and may be at any time altered, abridged, or set aside by law, and every franchise obtained, used or enjoyed by such corporation, may be regulated, withheld, or be subject to conditions imposed upon the enjoyment thereof, whenever the general assembly shall deem necessary for public good.”

The constitutional provision reads:

“Subject to the provisions of this article, the general assembly shall have power to amend or repeal all laws for the organization or creation of corporations, or granting of special or exclusive privileges or immunities . . .; and no exclusive privileges, except as in this article provided, shall ever be granted.”

Counsel for plaintiff make the broad claim that, under the power reserved in these written laws, which were in force when defendant took advantage of the legislative grant, the legislature not only had the right to amend or repeal all laws for the organization or creation of corporations, — that is, to take away at pleasure their corporate franchises, — but also had plenary power to deprive them of all special franchises or grants, without making compensation or otherwise protecting their property rights acquired under such grants. On the other hand, it is contended for the defendant that this reserved power, assuming it to be as broad as contended for by plaintiff, must be limited to the corporate charter, or the right to do business at all; and as applied to special franchises, such as the right to use streets and alleys with poles and wires, this reserved power is subject to other Federal constitutional provisions, such as that the obligations of contracts shall not be impaired, or anyone deprived of his property without due process of law. Exhaustive and learned arguments are made in support of each of these contentions, but it is manifest that, unless we find that the legislature did in fact attempt to deprive defendant of its grant, and to forfeit its franchises or privileges to use the streets and alleys of the city, the questions presented are moot ones, which we should not decide before they actually arise. 9

3. Statutes : construction : direct legislative grant in perpetuity : non-repeal by subsequent statutes : telephones. This, brings us down to what we regard as the crucial point in the case: Did the legislature attempt to deprive the defendant of rights theretofore given it under the statute with its amendment 1 The original statute, as amended, reads as follows:

“Any person or company may construct a telegraph or telephone line along the public highways of this state or across the rivers or over any lands belonging to the state or to any private individual, and may erect the necessary fixtures therefor; provided that when any highway along which said line has been constructed shall be changed, said person or company shall, upon ninety days’ notice in writing, remove said line to said highway as established. Said notice contemplated herein may be served on any agent or operator in the employ of said person or company.” McClain’s Code of 1888, Sec. 2103.

This is the statute which was construed in the Chamberlain and Nebraska Telephone cases, supra. The act which it is claimed deprived defendant of its rights to use the streets and alleys is Chapter 16, Acts of the Twenty-second General Assembly, passed in the year 1888, reading as follows:

Cities shall have power “to regulate telegraph, telephone, electric light, district telegraph and other electric wires, and provide the manner in which and places where the same shall be placed upon, along or under the streets and alleys of such city.”

This was amended by the legislature which passed the Code of 1897, so as to make it read as follows:

‘ ‘ Cities and towns shall have the power to authorize and regulate telegraph, district telegraph, telephone, street railway and other electric wires, and the poles and other supports thereof, by general and uniform regulation, and to provide the manner in which, and places where, the same shall be placed upon, along or under the streets, roads, avenues, alleys and public places of such city or town, and may divide the city into districts for that purpose.” Sec. 775, Code, 1897.

The same legislature passed what is known as Section 776 of the Code of 1897, reading as follows:

“No franchise shall be granted, renewed or extended by any city or town for the use of its streets, highways, avenues, alleys or public places, for any of the purposes named in the preceding section, unless a majority of the legal electors voting thereon vote in favor of the same at a general or special election. The council may order the question of granting, renewal or extension of any franchise submitted to a vote at a general election, or at one specially called for that purpose; or the mayor shall submit said question to such vote upon the petition of twenty-five property owners of each ward in a city, or fifty property owners in any incorporated town.” ■

This last quoted section has been amended by the thirty-second and thirty-third general assemblies, but these amendments are not material to this controversy. No change was made in what was theretofore known as Section 1324 of the Code, as amended by the nineteenth general assembly, except to substitute for the words ‘‘public highways” and “highways,” the words “public roads” and “roads.”

The Code Commission, in recommending the change found in Section 775 of the Code of 1897, makes this report:

“In order to include poles as well as wires, and street railway, as well as other electric wires, also to require regulations to be uniform and impartial, this section as reported should be changed to read as follows: ‘ Cities and towns shall have the power to authorize and regulate telegraph, district telegraph, telephone, street railway, and other electric wires, and the poles and other supports thereof by general and uniform regulation, and to provide the manner in which and places where the same shall be placed upon, along, or under the streets, roads, avenues, alleys, and public places of such city or town, and may divide the city or town into districts for that purpose.’ ”

Section 776 seems to have emanated from the legislature itself, and the referendum vote therein referred to was new. Theretofore, the only public utilities subject to such a vote were water and gas works, electric light and electric power plants. The change made in Section 1324 of the Code of 1873 was manifestly to harmonize it with the statutes just quoted,, with reference to the powers of cities and towns over telephone and telegraph companies.

4' stouctionS::fo°-" imjcüvVor™ete?atio°n7im-P" plied. r6p6£tls * telephone franchises, Now, the primary question in the case is whether or not, by the enactment of these laws, commencing with the acts passed in the year 1888 and ending with those appearing in the Code of 1897, the legislature intended to forfeit rights already acquired by a telephone company under Section 1324 of the Code of 1873, as amended by the Acts of the Nine-. teenth General Assembly, and to require such t a company, already occupying the streets and alleys of a city, to secure, through action of the city council and by a referendum vote, the right to use the streets and alleys upon which it had already placed its poles and lines, under specific authority from the legislature. Or was it the intent of the legislature to authorize cities to regulate such companies as were already using the streets and alleys under grant of the legislature, and all others which might secure the right to so use the streets and alleys, by general and uniform legislation applicable to all, and to further provide that no franchise to use the streets and alleys should thereafter be granted, renewed or extended, except upon a referendum vote of the people? It seems clear to us that the latter is the proper interpretation to be put upon these laws. It must be remembered that the franchise spoken of is not the general franchise of a corporation, domestic or otherwise, granted by a sovereign, but a franchise for the use of the streets, alleys, etc., of the city. The latter, the defendant had directly from the legislature; and, as we have seen, it was perpetual in character, subject to forfeiture, if at all, only by the legislature itself. It did not need to be renewed or extended, and as i had one already, no further grant was necessary.

Several well-settled rules are to be considered, in determii ing this main proposition: First, forfeitures are not favored, and legislative enactments of that character are strictly construed. In re Kuhn’s Estate, 125 Iowa 449; Salters v. Tobias, 3 Paige Ch. (N. Y.) 338; Smith v. Spooner, 3 Pick. (Mass.) 229; Sullivan v. Park, 33 Me. 438; Russell v. University, 1 Wheat. (U. S.) 432; Endlich on Interpretation of Statutes, See. 343. Again, repeals by implication are not favored. Endlich on Interpretation of Statutes, Sec. 210; Casey v. Harned, 5 Iowa 1; Burke v. Jeffries, 20 Iowa 145; Lambe v. McCormick, 116 Iowa 169; Diver v. Keokuk Savings Bank, 126 Iowa 691. Another well-settled canon of construction is that statutes should be construed prospectively, and not retrospectively; and this is true although there be no constitutional impediment. State v. Mays, 52 Mo. 578; Smith v. Humphrey, 20 ; Furney v. Ackerman, 21 Wis. 268; Forsyth v. Ripley, 2 G. Greene 181; City of Davenport v. D. & St. P. R. Co., 37 Iowa 624; Kennedy v. Des Moines, 84 Iowa 187; Farmers Co. v. Iowa State Ins. Co., 112 Iowa 608; Galusha v. Wendt, 114 Iowa 597; Davis v. O’Ferrall, 4 G. Greene 168; Rosier v. Hale, 10 Iowa 470; Bartruff v. Remey, 15 Iowa 257; Purczell v. Smidt, 21 Iowa 540; Payne v. Chicago, R. I. & P. R. Co., 44 Iowa 236.

In the Davenport case, supra, it is said:

“It is also a well-established rule of the courts to construe all statutes as having only a prospective operation, unless the legislature expressly declare, or otherwise show a clear intent that it shall have a retroactive effect. ’ ’

And in the Galiosha case, it is said:

‘ ‘ There can be no controversy about the proposition that the court will construe a statute as prospective only, in the absence of language indicating an intention that it shall be retrospective. ’ ’

In Cameron v. United States, 231 U. S. 710, it is said:

“A retrospective operation of statutes is not to be given except in clear cases, unequivocally evidencing the legislative intent to that effect. Union Pacific R. Co., v. Laramie Stock Yards Co., 231 U. S. 190, 199, and previous cases. . Summers v. United States, 231 U. S. 92. In the absence of a clearly expressed legislative intent to the contrary, the court will presume that the law-making power is acting for the future, and does not intend to impair obligations incurred or rights relied upon in the past conduct of men when other legislation was in force. White v. United States, 191 U. S. 545, 552.”

Turning again to Sections 775 and 776 of the Code of 1897, and considering the language used, in the light of these rules, it is apparent, we think, that the legislature did not intend to, nor did it in fact, forfeit the defendant’s grant, or franchise, acquired under Section 1324 of the Code of 1873, as amended. There is no declaration of forfeiture; and a repeal of this section, as amended, so as to affect companies which have vested rights thereunder, is not to be implied. Moreover, there is nothing to indicate that it is to affect companies already having rights upon the streets and alleys of the city, save in a regulatory manner. Section 775 clearly has reference to the regulation of telephone, telegraph, street railway and other electric wires, poles and other supports, by general and uniform rules, and it also provides that, for this purpose, the city may be divided into districts. At the time of the passage of that act, there were many street railways operating under charters from the city, and many telegraph lines running through the cities of the state. Surely, this statute did not affect the rights of such companies to use the streets of a city; and it is clear that their franchises then in existence were not forfeited thereby. The intent of the law was manifestly to give the city power, not only to authorize companies having no franchises, but also those which did, to use the streets and alleys for poles, wires, etc., under general and uniform regulations, and this it might do by dividing the city into districts. This undoubtedly had reference to the placing of the poles, supports and wires upon the property of the city, and doubtless included the right to compel telegraph and telephone companies already established to place their wires in underground conduits or in alleys, rather than in streets., The fact that the regulations must be general and uniform, at least by districts, is a clear intimation that they were not intended to apply to the granting of franchises or the right to occupy the streets and alleys. No city could, under this section, grant such a franchise, for the plain reason that the next section prohibits it, except upon a referendum vote.. There is no provision in this latter section that all franchises or grants to new companies shall be uniform in their terms. Uniformity is only required in the matter of placing poles, wires and supports upon the streets, alleys and public places. If this be not the correct construction, then all franchises or grants to street railway, telegraph and telephone companies must be general and uniform. Surely, the legislature did not intend to so tie the hands of the city authorities that they could not bargain for better terms, after once granting a franchise for the use of streets for the purpose mentioned. Moreover, giving the term “authorize” its broadest significance, there is nothing to indicate that it was to have other than a prospective operation. If a company was already authorized to use the streets and alleys of a city by legislative grant, it needed no authorization from the city; and the word itself suggests prior lack of authority. It does not, when' standing alone, refer to the past or to the present, but to the future. One already authorized to do a thing needs no further authority. It is the one who does not possess it who needs the grant. Having the grant, the word “authorize” does not suggest that it be taken away. Given a prospective operation, as we think it should be, it has reference to the regulation of those companies which might then have, or thereafter be given, the right to occupy ike streets; and the fundamental thought is regulation in the method of placing wires, poles, etc., upon the city streets, alleys, and public grounds. The next section clearly indicates that companies already having a franchise or grant need not secure a new one; for it says in terms that no franchise shall be granted, renewed or extended, etc., for any of the purposes named in the preceding section, without a vote of the people. This means that no such franchise shall in the future be granted, renewed or extended without a vote of the people. Unless, then, defendant’s franchise, acquired under general legislative grant, was forfeited by Section 775 or by some other act, it needed no other; for it had one which, as we have seen, was perpetual, and subject only to the powers already enumerated. Its franchise did not have to be renewed or extended, in order to give it life. Under the doctrine of the Chamberlain and Nebraska cases, supra, the defendant had a franchise to use the streets and alleys of the city of Des Moines, and it has it yet, unless the legislature has caused the forfeiture of the same. As forfeitures are not favored, any act which is relied upon as taking away a franchise must be so clear as to remove all reasonable doubt as to the legislative intent. There was no repeal of the statute which granted the franchise. True, it was amended, but this amendment was prospective in its operation, and at best was intended to have application to the future only. The most that can be claimed for the amendment of what was Section 1324 is that, after the passage of the amendment, cities and towns should have the right to authorize and regulate telephone, telegraph and street railway and other electric poles, wires and supports, etc., within their limits.

5. municipal corporAtions : governmental ?eguiatiomines‘ There may be some doubt, in construing Sections 775, 776, and 2158 together, whether cities and towns may now regulate toll lines within their limits. It may be that the state still retains its right to do this, under Section 2158. Perhaps no grant from the city is necessary to obtain the right to erect a toll line within the limits of the city; and it may be that, after obtaining a grant from the state, the city may still regulate the placing of the poles, wires, etc., for toll lines within its limits, by general and uniform regulation applying to all toll lines alike. Upon this and other propositions, we express no opinion, as it is not necessary to a decision of the case.

Plaintiff relies upon the recent cases of East Boyer Telephone Co. v. Incorporated Town of Vail, 166 Iowa 226, and Farmers Telephone Co. v. Washta, 157 Iowa 447. But in neither of these cases had the telephone company acquired a franchise prior to the enactment of Sections 775 and 776, or the amendment to Section 1324 of the Code of 1873 by the Code of 1897. In neither case did the telephone company involved have any right in the streets of the respective towns under Section 1324 of the Code of 1873, as amended by the Acts of the Nineteenth General Assembly. Sections 775 and 776 were, in these cases, given a prospective operation, as they should have been; and no such questions arose in those cases as are here involved.

Lastly, it is contended that, at most, all that defendant is entitled to is the right to maintain its toll lines within the city, and that it has not, and never had, the right from the legislature to maintain a local exchange within the city of Des Moines. This proposition is predicated upon the thought that, under Section 1324 of the Code of 1873, as amended by the nineteenth general assembly, the legislature gave defendant no other right than to construct and maintain toll lines upon the public highway of the state, which included streets and alleys, and that there was no provision for the maintenance of local exchanges until the adoption of the Code of 1897, which contains Sections 775 and 776 practically as they now stand. Some support for this contention is claimed to be found in City of Brownwood v. Brown Telephone & Telegraph Co. (Tex.), 157 S. W. 1163, and Athens Co. v. Athens (Tex.), 163 S. W. 371. As we read these, neither is in point. In each, the law was substantially the same as that found in the Code of 1897, to which-we have referred,' and towns were given substantially the same rights as found in Section 775 of the Code. From the Brownwood case, we quote the following:

“It will be observed that the grant to such corporations by Article 1231 is qualified by this important language: ‘ In such manner as not to incommode the public in the use of such road, streets and waters.’ The effect of the limiting clause Is to declare the right of the- public to be superior to the rights granted to the corporation. Article 1235, Revised Statutes, 1911, reads: ‘ The corporate authorities of any city, town or village through which the line of any telegraph corporation is to pass may, by ordinance or otherwise, specify where the posts, piers or abutments shall be located, the kind of posts that shall be used, the height at which the wires shall be run; and such company shall be governed by the regulations thus prescribed; and, after the erection of said telegraph lines, the corporate authorities of any city, town or village shall have power to direct any alteration in the erection or location of' said posts, piers or abutments, and also in the height at which the wires shall run, having first given such company or its agents opportunity to be heard in' regard to such alteration. ’ It is apparent that the right of the telephone company to pass through the city or town, over and upon its streets, is absolute, and a city has no authority to deny that right. The interest of the public in convenient service by such means of communication is the basis of the grant, and is superior to any private interest. On the other hand, the interest of the city in the manner in which the corporation exereises its right is the foundation of the authority vested in the city to control the occupancy and use of the streets by such corporations, and a reasonable exercise of the power is equally absolute. The limitation embodied in the grant to the corporation would alone be sufficient to subject it to a reasonable restraint. But the grant to the authorities of the city by Article 1235 invests the municipal government with power to enforce any reasonable regulations as to the use of the streets by the city, but such city cannot use its power to regulate in such manner as to deny the corporation the right to pass through the town, and in so doing, to use the streets in ‘such way as not to incommode the public.’ . . . But the city had no authority to require the telephone company to accept its ordinances as a condition precedent to entering the city. The right and duty of the city was to enforce such ordinances as prescribed reasonable regulations, whether acceptable to the telephone company or not. . . ■. The telephone company will be authorized to construct its line over the streets of the city, under and in accordance with the reasonable requirements of the city. The effect of the injunction will not be to take from the city its right of control over its streets, sidewalks, — in fact, all public places in the city. The telephone company is entitled to all the privileges necessary to its construction and operation as a ‘distance telephone.’ But it is not to be inferred from this opinion that this company can, without consent of the city, transact the business of a local company. Our conclusions have been reached by applying to the long distance telephone the rules of law which would be applicable to the telegraph line under similar conditions, and we expressly reserve from any implication the relative rights of local telephone companies and city governments. Nor do we intend to imply any limitation upon the authority of a city in the regulation of placing of poles, etc., or placing wires underground, when necessary to avoid ‘incommoding’ the public. We deem it proper to limit this opinion to the class of cases to which this belongs.” City of Brownwood v. Brown Telegraph & Telephone Co., 157 S. W. 1165, 1166.

In the Athens case, it is said:

“Thus it will be seen that the issue here raised in no sense involves the rights of a distance telephone business, as distinguished from those of a local telephone business, as construed in S. A. & A. P. R. Co. v. S. W. T. & T. Co., 93 Tex. 313 (55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884), and the City of Brownwood v. Brown Telegraph & Telephone Co. (Sup.), 157 S. W. 1163, where it was, in effect, held that, under Article 1231, R. S. 1911, distance telegraph and telephone companies might pass through towns and villages, using their streets so as not to incommode the public, free from interference by the government of said towns and villages, despite the provisions of Article 1235, which only invests the municipality with power to enforce reasonable regulations in such use of its streets by distance telegraph and telephone companies. The facts in this case show appellant is conducting a local telephone business, and that a different rule with reference to the rights of such companies pertains in law is made clear by Mr. Chief Justice Brown, in the Brownwood case, supra, by the statement in the opinion that ‘it is not to be inferred from this opinion that this company can, without consent of the city, transact the business of a local company.’ Concluding, then, from the facts, that appellant was conducting a local telephone business, and that appellee was free to regulate and control the same in a lawful manner, and that the appellant held the business subject to such regulation, the question then arises, did appellant take the business subject to the terms of the original grant?” Athens Telephone Co. v. City of Athens, 163 S. W. 371.

These authorities will be helpful when a case arises under the law as it now stands, and we are asked to decide the rights of a telephone company authorized to erect toll lines over and upon rural highways and city streets under Section 2158 of the Code, and its right to maintain local exchanges under Sections -775 and 776 of the Code. They do support our conclusion as to the effect of Section 775 standing alone, and, on the whole, are authorities for the views herein expressed. Under the general grant found in Section 1324 of the Code as amended, defendant acquired the right to use all the streets and alleys in the city of Des Moines, and they were not deprived of that right by Section 775 of the Code. The city might, under that section, in the exercise of its police or regulatory powers, provide as to how the poles, wires, etc., should be constructed; but it could not arbitrarily exclude the defendant from the use of its streets and alleys. This point is expressly ruled by both the Chamberlain and Nebraska Telephone cases, supra, as will be observed from the quotations made therefrom. In this connection, we may with profit also quote the following, in addition to the extract already taken from the Chamberlain case:

“The twenty-second general assembly, by Chapter I of its Acts, provided for a board of public works in all cities of the first class having a population of more than 30,000, and further provided: ‘ It shall have power and be required by and with the advice of the city engineer to superintend the laying of all water, gas and steam heating mains and all connections Aiorefor, and laying of telephone, telegraph, district telegraph, and electric wires, in the manner provided by the ordinances of such city. ’ And by Chapter 16 of its Acts, it gave additional powers to certain cities; among others, the power ‘to regulate telephone, telegraph, electric light, district telegraph, and other electric wires, and provide the manner in which and the places where the same shall be placed, upon, along or under the streets and alleys of such cities. ’ It can hardly be seriously argued that the quoted language from these two acts does not relate to the use of streets and alleys by telegraph and’ telephone companies; and, if the acts do relate to that matter, they must be taken into consideration in construing the telegraph and telephone statute; for it is a rule of universal application that several statutes relating to the same thing must be so considered. . .. . If the telephone right of way statute did not confer the power to use streets in cities, the legislature would not have given cities control over the location of the poles and wires. When, however, the statutes are construed together, they are in perfect accord.”

This quotation serves a dual purpose: First, to demonstrate that Section 1324 of the Code of 1873, as amended by the Acts of the Nineteenth General Assembly, gave the defendant the right to use all the streets and alleys of the city of Des Moines; and second, to show that, in its original form, Section 775 of the Code was a mere regulatory statute, and that the change made on the suggestion of the Code Commission, as found in the Code of 1897, was not for the purpose of forfeiting any rights of telephone companies, but to give to cities and towns the right “to include poles as well as wires, and street railway as well as other electric wires; also, to require regulations to be uniform and impartial.” Nothing said in Farmers Telephone Co. v. Washta, 157 Iowa 447, or Fast Boyer Telephone Co. v. Incorporated Town of Vail, 166 Iowa 226, runs counter to these views. On the contrary, they are in entire harmony with the conclusions here reached. In both cases, the telephone companies were attempting to enter cities or towns after the enactment of Sections 775 and 776, and to erect and maintain local exchanges therein. We may with profit quote the following from Farmers Telephone Co. v. Washta, 157 Iowa 455-458.

“What may be the limit if any, of legislative power, throwing open all public streets and highways to the exploitation of works of real or alleged public utility, without franchise or permission from cities or towns affected by them, we need not here discuss. We may, for the purposes of this case, assume that, under Section 780 of the Code of 1851 and its subsequent re-enactments, prior to the enactment of Sections 775 and 776 of the Code of 1897, the builders of telegraph and telephone lines could rightfully erect their poles and string their wires on every street and alley in each and all of the cities and towns of the state, without regard to the wishes of the several municipalities; but we are satisfied that such power, if it existed, was materially narrowed by the later Code provisions to which we have made reference. The authority given by Section 780 of the Code of 1851 and subsequent re-enactments thereof prescribe undoubtedly the general rule; but it is a rule from the operation of which cities and towns have been excepted or removed by the later legislation embodied in Sections 775 and 776 of the present Code. By the first of these, cities and towns, are empowered to ‘authorize’ the use of their streets for such purposes, and by the second, the grant of such franchise is made subject to the ratification of the voters Of the municipality. To say now that, notwithstanding this statute, the streets of such municipality are open to the entrance of every person or corporation which may be minded to try its hand at the maintenance of a telephone system, without permission of the constituted authorities or the approval of the voters, is to nullify the legislative enactment. On the other hand, by treating Code Section 2158 as stating a general rule, which must be read and applied with due reference to limitations imposed by other statutes relating to the same subject, all may be given due effect.

“The case of Chamberlain v. Telephone Co., 119 Iowa 619, on which appellants place much reliance, is not here a controlling authority. The telephone line or system there in controversy had been erected, and the rights of the company had vested, under a general statute substantially identical with the present Code Section 2158. This was, however, prior to the enactment found in Code Sections 775 and 776, and the effect of these provisions and the authority and power thereby vested in cities and towns was in no manner discussed or considered. The one thing there considered was the construction of the general statute, authorizing persons and corporations to erect telegraph and telephone lines on all the public highways of the state; and it was held that the words ‘public highways’ necessarily included city streets, and that the telephone company’s rights there were, therefore, not referable to any grant or franchise from the city. With the correctness of that decision upon the issue as there made, we have here no quarrel. What we hold is that the legislature, having now expressly clothed the cities and towns of the state with power to authorize the use of its streets for such purposes, or, in other words, to grant franchises to telephone companies, and having further made the validity of such grants dependent upon their ratification by popular vote, it follows of necessity that a city or town, acting through its constituted authorities, may exclude from its streets the poles and wires of any company or system to which such permission has not been extended. It will not do to say that the extent of the authority given to cities and towns is merely to regulate, and not to authorize or prohibit; for, while it might be possible to torture that meaning out of Code Section 775, if it stood alone, it would leave the succeeding section utterly pointless and of no effect.

“It is to be conceded that cases may be found, and they are cited by counsel, in which statutes, more or less similar to our own, have been shorn of their apparent effect, and construed as giving cities and towns no more than a power of supervision or regulation. The thought which seems to have influenced these holdings, and which is pressed upon our attention in appellant’s brief, is that, where the state — the repository of the sovereign power — has by general statute given telephone and other similar corporations the right to occupy the public highways with their poles and wires, it cannot be presumed that the legislature intended to confer upon cities and towns the right or power to exclude them from their corporate limits. We do not regard the reasoning by which this conclusion is reached as convincing or persuasive. It is safe rule to assume that the legislature means what it clearly says. The state may and does delegate certain of its powers to municipal corporations, and if, in its judgment, such corporations can best or most effectually control, improve and protect the streets within their limits, and statutes to that effect are duly enacted, we know of no restriction in the Constitution or in principles of public policy which should impel the courts to construe away their obvious meaning. It was entirely competent for the legislature to restrict the scope of the right or privilege which had been conferred by Code Section 2158, and this we think it did, by the provisions of the later statute.”

We reach the satisfactory conclusion that the defendant has a franchise to operate its telephone system, both long distance and local, upon the streets of the city of Des Moines, and that this franchise has not been repealed or taken away by the legislature. Defendant is doubtless subject to certain regulatory or police measures, is subject to taxation and to the right of eminent domain; but its franchise has not been forfeited by the legislature, and it should not be ousted from the streets, alleys and public places of the city of Des Moines.

The judgment must, therefore, be and it is reversed, and the cause remanded for a judgment and decree in harmony with this opinion. Reversed and Remanded.

All the justices concur, except Weaver and Preston, JJ., who dissent.