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city for a period of twenty years, in consideration for which, and in lieu of any special license tax, the company and its assigns were during that period to provide an electric fire-alarm system and stated telephone service for the city at a small annual rental. This franchise was conveyed by the United Telephone Company to the Missouri & Kansas Telephone Company, a Missouri corporation, February 25, 1887, and was conveyed by the latter to a Kansas corporation of the same name June 1, 1887, in consideration of the issuance to the Missouri Company of $249,500 of the $250,000 of the Kansas Company's capital stock, of which the Missouri Company is still the owner. Immediately thereafter, and as part of the same transaction, the Kansas Company leased this franchise to the Missouri Company for the term of 99 years at an annual rental of $1, and with a stipulation that the nonpayment of the rental should not terminate or avoid the lease or lessen the rights of the lessee. This lease was virtually an absolute conveyance because it irrevocably transferred to the lessee the full beneficial use and the entire control of the franchise for its full term of existence. Ordinance 538, adopted May 16, 1888, granted to the Missouri Company and its assigns a like franchise for a period of five years, and until terminated by the city, but not exceeding twenty years. This franchise was terminated after the expiration of the five-year period, and Ordinance 1,356, adopted May 23, 1896, granted another like franchise to the Missouri Company for a similar term. The telephone system put in operation by the United Telephone Company under Ordinance 391 was included in the conveyances and lease before named along with the franchise granted by that ordinance, and was being operated by the Missouri Company when the later ordinances were adopted. If it was intended to effect an entire readjustment of the rights and obligations of the Missouri Company and the city respecting the maintenance and operation of the existing telephone system, and to make the later ordinances, each in turn, the full measure and the sole evidence of these rights and obligations, the terms of these ordinances were well chosen ; but if it was intended to permit the existing franchise to continue for the original period of twenty years, with modifications in other respects, the terms employed were altogether inappropriate. Every provision of Ordinance 391 was covered in some form by both Ordinance 538 and Ordinance 1,356, and in several respects-including those relating to the term of the franchise and to the fire-alarm and telephone service for the city each of the later ordinances was inconsistent with the first if they related to the same telephone system; and it is conceded that they did. Each of the later ordinances in terms repealed all ordinances conflicting therewith, and declared that it should take effect only on its acceptance in writing by the Missouri Company, and each was so accepted. The company did not need an additional and independent franchise of the same character while that granted by Ordinance 391 was in force. Without any doubt the purpose of each of the later ordinances was to substitute in place of the pre-existing franchise another, deemed to be better adapted to the situation, and not to grant an additional and independent one. In their subsequent conduct the parties so interpreted these ordinances. No attempt was made to put


in operation another telephone system under either of the later ordinances; nor was there a claim of a right to do so. Before the acceptance of Ordinance 538 the company and the city conformed to the provisions of Ordinance 391, including those relating to the fire-alarm and telephone service for the city, and thereafter they conformed to the provisions of Ordinance 538 while it continued in force, and then to those of Ordinance 1,356. The franchise granted by the first ordinance, having become the property of the Missouri Company, could not be recalled or terminated without its consent. In consequence Ordinance 538, as also Ordinance 1,356, provided that it should take effect only upon its acceptance in writing by the company, and this acceptance was given. Ordinances like these become contracts upon their acceptance, and, like other contracts, are to be read and interpreted in the light of the circumstances which surround their adoption. When Ordinances 538 and 1,356 are so read and interpreted, the purpose to abrogate Ordinance 391 is plain. It was competent for the city and the Missouri Company to do this, because the Kansas Company, by its unusual lease, had stripped itself of all right and interest in the original franchise; and, in any event, the acceptance of the later ordinances bound the Missouri Company, and is binding upon the complainants, whose rights are wholly derived through the Missouri Company, and originated more than eleven years after the acceptance of Ordinance 538 and almost four years after the acceptance of Ordinance 1,356. Complainants' rights can mount no higher than their source. For these reasons Ordinance 1,356 is the only subsisting one upon which the relief sought can be rested.

The act of 1868 declares that telegraph companies shall be authorized to place their poles and wires along and upon the "public roads, streets and waters" of the state "in such manner as not to incommode the public" in their use, and the act of 1885 extends to telephone companies the "rights and powers" of telegraph companies. These acts are expressed in general terms, and are operative throughout the state, except as restrained by some other statute. Before the passage of the act of 1885, before the adoption of any of the ordinances relied upon, before the incorporation of the Kansas Company, and before the acquisition of any right here asserted, the rights and powers of telegraph and telephone companies in cities of the first class had been restricted by the act of 1881. It put cities having a population of over 15,000 in a separate class, designated "cities of the first class," and made new and complete provision for their government. Among other powers conferred upon the mayor and council were these:

"Twentieth: To * provide for and regulate the construction and passage of railways and street railroads through the streets, avenues, alleys or lanes, and public grounds of the city: provided, that no person or company to whom the right and privilege shall at any time be granted, by the mayor and council of such city, to construct railroads and street railroads through the city, shall have the exclusive privilege to use any streets for that purpose." "Twenty-second: To grant the right of way for the erection of telegraph or telephone posts and wires along and upon any of the streets, alleys or ways of the city, and change, modify and regulate the same.

"Twenty-third: To grant to any person or corporation the use of streets, alleys and public grounds for the purpose of laying gas, water and steam

pipes, to be used in furnishing or supplying such city and its inhabitants or any person or corporation with gas, water, steam or hot air: provided, that no franchise, rights of way, or privileges of any character whatever, shall be granted by the mayor and council for a longer period than twenty years."

Elsewhere this act clothes the mayor and council with large authority over the streets, alleys, and ways of the city, and expressly provides for the regulation of all manner of use and obstruction of them. The care with which the act covers every feature of municipal authority and administration, the specific repeal of the prior laws for the government of cities coming within the new classification, and the general repeal of all acts in conflict with this one, show that it was intended to establish for these cities a municipal code complete in itself, and entirely superseding prior laws upon the subject. It is declared that the city ordinances must not be repugnant to the laws of the state, but these laws cannot be ascertained without taking into consideration the act of 1881, which was directed to a particular enumeration of the powers of a city of this class and of the subjects committed to the discretion and control of its mayor and council. The question presented is this: Is the law of the state respecting the right of a telephone company to erect and maintain poles and wires along and upon the streets and alleys of cities of the first class expressed in the act of 1868 or in that of 1881? Stated differently, the question is: Does the later act, where no right was then vested, restrain the operation of the earlier one in cities of this class, or except them from its operation, and make a grant of a right of way by the mayor and council a prerequisite to any right in a telephone company to thus occupy the streets and alleys? The question should be answered in the affirmative. We are not concerned with the wisdom of the legislation. It was open to the state to pursue its own policy. It could itself grant the right of way and control its exercise; it could grant the right of way, and delegate to the municipality the control of its exercise; or it could commit the entire subject to the municipal authorities. Many examples of each course are found in the legislation of the several states. It was not necessary that all towns and cities should be clothed with the same measure of authority and self-government. That it was not deemed wise to do so is shown by the division of municipalities into different classes, by the enactment of separate laws for each class, and by the omission from the laws enacted for the government of other cities and towns of any provision expressly empowering them to grant the right to occupy their streets and alleys for telegraph or telephone purposes. It was within the power and discretion of the state to place cities, the needs and permanent character of which were indicated by a population of more than 15,000-those of the first class-upon a different footing from others in respect of this use of their streets and alleys. This is what was done by the act of 1881. That the Legislature so understood is indicated by an act of 1891, wherein, after providing, inter alia, for the acquisition of rights of way over private property by telegraph corporations, it was declared: "And such wires may be *through any street or alley

carried or stretched

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or public ground of any city of the second or third class." Sess. Laws Kan. 1891, p. 149, c. 85; Gen. St. 1901, § 1366. Cities of the first class those to which the act of 1881 had committed the entire subject of telegraph and telephone rights of way-were carefully omitted from this direct exertion of the state's authority over municipal highways. The three classes of cities covered by the acts of 1881 and 1891 embrace all organized cities, towns, and villages; the first class including those of over 15,000 inhabitants, the second those of over 2,000 and not exceeding 15,000, and the third those of not more than 2,000. Gen. St. 1889, §§ 545, 756, 922. The legislative understanding of the effect of the act of 1881 is further indicated by a recent act relating to cities of the first class, which confers upon the mayor and council power "to prescribe and fix maximum rates and charges, and regulate the collection of the same, for all * * telephone service furnished to such city or to any of the inhabitants thereof by any person or corporation now authorized by such city by virtue of a franchise ordinance, or that may hereafter be authorized by virtue of a franchise ordinance, to furnish * * * telephone service to such city or to its inhabitants." Sess. Laws Kan. 1903, p. 186, c. 122, § 51. The policy of the state toward its municipal corporations has generally been marked by a liberal bestowal of power upon them. As was observed in Converse v. City of Ft. Scott, 92 U. S. 503, 505, 23 L. Ed. 621: "The general legislation of Kansas confers unusual power upon municipal corporations in that state. It enlarges the range of municipal authority and duty far beyond the limits within which such corporations are commonly understood to be confined." This is also true of the legislation in respect of their streets and alleys. An act authorizing water companies to acquire rights of way for their canals by condemnation proceedings provides "that no such canal shall be located through any street or alley or any public grounds of any city without the consent of the municipal authorities. Sess. Laws Kan. 1876, p. 153, c. 58; Gen. St. 1901, § 1366. Another act, in force since 1868, provides that a railroad cannot be constructed in, upon, or across any street of an incorporated city or town without the assent of its corporate authorities. Gen. St. Kan. 1868, p. 202, § 47; Gen. St. 1901, § 1316. This law was considered in Pacific Railroad Co. v. Leavenworth, 1 Dill. 393, Fed. Cas. No. 10,649, where it was said by Judge Dillon:

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"It has been argued in behalf of the complainant that this statute simply clothes the city with the power to say 'yea' or 'nay,' but that it does not authorize it to stipulate for terms or conditions. But in this view I cannot concur. Its power is complete; and it was undoubtedly the design of the Legislature that the city authorities, as the representatives and guardians of the public interests of the city and its inhabitants, should have the power to prescribe, as conditions of giving their assent, such lawful and proper terms as they deemed expedient."

The act of 1868 is general in its terms, makes no mention of the authority of cities in respect of telegraph or telephone rights of way, and embraces the streets and alleys of cities only as they are part of the public roads and streets of the state. The act of 1881 is specific in its terms, and is directed particularly to the authority of cities of the first

class in respect of such rights of way. If it was intended that the right to occupy the streets and alleys of these cities with telegraph or telephone lines should continue to arise from the earlier act, there was manifest impropriety in the provision which was inserted in the later act; and, if that clear and concise provision was intended to clothe cities of the first class with power to grant such rights of way, necessarily implying the power of refusal, no right to so occupy the streets and alleys of these cities could thereafter arise from the earlier act. The inconsistency is more than verbal. It is of that character which occurs when separate acts lodge the same authority in different places, when, in its nature, it can exist and be exercised in but one. This inconsistency is disposed of by the application of the familiar rule for interpreting conflicting statutes, that one which is directed to a particular matter controls in respect thereof over one which is general in its terms, although in its general terms the particular matter may be included. Mutual Life Ins. Co. v. Hill, 193 U. S. 551, 558, 24 Sup. Ct. 538, 48 L. Ed. 788. The act of 1868 did not bring telegraph rights of way in cities to the attention of the Legislature, except in the most general way; but the terms of the act of 1881 are such that rights of way for telegraph and telephone lines in cities of the first class is a matter to which particular attention was necessarily directed. The increase in the number of cities of the state and in their population during the intervening years had also given increased importance to the subject. The special enactment, which also has the added force of being a later expression of the legislative will, controls the general one. The first means of ascertaining the meaning of a statute is to consult its words. The act of 1881 declares: "The mayor and council * * * shall have power: *Twenty-second: To grant the right of way for the erection of telegraph or telephone posts and wires along and upon any of the streets, alleys or ways of the city and change, modify and regulate the same. These words are not reasonably susceptible of an interpretation which clothes the mayor and council with power to merely regulate the use of the right of way. They plainly confer the power to grant the franchise, as well as the power to regulate its use. There is nothing unreasonable in this; nothing which suggests that the words could not have been used in their natural or usual sense. The context does not restrict their natural or usual meaning, but shows they were used with that meaning. Subdivisions 20 and 23, before quoted, authorize the granting of similar rights of way, not the mere regulation of their use. The three subdivisions, considered together, unmistakably disclose a purpose to invest the mayor and council with authority to grant rights of way along, upon, and across the streets and alleys for railroads, street railroads, telegraph, and telephone lines, and gas, water, and steam pipes, subject only to two restrictions-one, that rights of way for railroads and street railroads shall not be exclusive; and the other that no franchise, right of way, or privilege shall be for a longer period than twenty years. The express imposition of these restrictions implies that none other was intended. The conclusion that subdivision 22 empowers the mayor and council to both grant and regulate the right to occupy the streets and alleys of the city with telegraph and tele

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