Grayson v. Lynch, 163 U. S. 468,
followed to the point that the special finding of facts referred to
in the acts allowing parties to submit issues of fact in civil
cases to be tried and determined by the court is not a mere report
of the evidence, but a finding of those ultimate facts, upon which
the law must determine the rights of the parties, and if the
finding of facts be general, only such rulings of the court in the
progress of the trial can be reviewed as are presented by a bill of
exceptions, and in such case the bill of exceptions cannot be used
to bring up the whole testimony for review any more than in a trial
by jury.
An action was brought in the Circuit Court of the United States
for the Eastern District of Missouri by the City of St. Louis
seeking to recover from the Western Union Telegraph Company the sum
of five dollars per annum per pole for 1,509 telegraph poles which
the defendant maintained on the streets of that city between July
1, 1884, and July 1, 1887. The case was tried without a jury, and
resulted, on June 17, 1889, in a judgment in favor of the
defendant; the court holding that the burden imposed was a
privilege or license tax, which the city had no authority to
impose. A writ of error was sued out
Page 166 U. S. 389
of this Court, where it was held that the municipal charge in
question was not in the nature of a privilege or license tax, but
was a rental charge for the permanent and exclusive appropriation
of those spaces in the streets which are occupied by the telegraph
poles. To the defense asserted by the telegraph company that, by
ordinance, the city had contracted with defendant to permit the
erection of these poles in consideration of the right of the city
to occupy and use the top cross-arm of any pole for its own
telegraph purposes, free of charge, it was replied by this Court
that there was nothing in the record to show that any of the poles
were erected under or by virtue of the ordinance mentioned, and
that therefore, so far as the facts appeared, there was simply a
temporary matter of street regulation, and one subject to change at
the pleasure of the city. But this Court did not find it necessary
to consider the matter of this ground of defense at length, as on
the new trial awarded, the facts in respect thereto could be more
fully developed. It was further claimed by the telegraph company
that the ordinance charging five dollars a pole per annum was
unreasonable. But this Court thought this question also should be
passed for further investigation on the new trial.
148 U. S. 148 U.S.
92.
Thereafter, in January, 1894, the second trial was proceeded
with, a jury being waived, and resulted in a judgment in favor of
the defendant. The present writ of error was then sued out from
this Court.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
We are urged in the argument for the plaintiff in error to
convict the circuit court of error in holding that a contract
existed between the city and telegraph company, which contract
Page 166 U. S. 390
would be impaired by the ordinance imposing a charge upon the
company for maintaining its poles upon the streets, and in holding
that said ordinance was void because unreasonable and
oppressive.
But in the view that we take of this record, those questions are
not presented for our determination. The case was tried by the
court without a jury, and the record shows simply a general finding
and a rendition of judgment in favor of the defendant. There is no
special finding of facts, and therefore inquiry in this Court must
be limited to the sufficiency of the complaint, and the rulings, if
any be preserved, on questions of law arising during the trial. In
such cases, a bill of exceptions cannot be used to bring up the
whole testimony for review, any more than in a trial by jury.
Norris v.
Jackson, 9 Wall. 128;
Lehnen v. Dickson,
148 U. S.
72.
When all the evidence had been adduced in the case, the
plaintiff asked the court to declare the law to be as follows:
"The court declares the law to be that, under the pleadings and
evidence herein, ordinance No. 11,604 [which was the ordinance
which granted the company the right to maintain its poles upon
condition that the city should occupy the top cross-bar free of
charge] is not a contract between the plaintiff and defendant, but
is simply a municipal regulation, which the city has a right to
change at any time it sees fit, and that ordinance No. 12,783
[which was the ordinance imposing the charge of five dollars per
pole annually] is a valid ordinance regulation, and that the
defendant is bound thereby."
"The court declares the law to be that, upon the pleadings and
evidence in this case, ordinance No. 12,733 is a valid ordinance,
and is not void as being unreasonable, oppressive or unjust."
"The court declares the law to be that upon the pleadings and
evidence in this case, the plaintiff is entitled to recover from
the defendant the sum of $22,635, with interest thereon at the rate
of six percent from the 7th day of April, 1888."
The refusal of the court so to hold was excepted to, and is
assigned for error. But these were rulings which involved a
determination of facts, and as those facts are not found for
Page 166 U. S. 391
us by a special finding by the court, and as the evidence which
developed the facts is not brought to our notice by exception to
its competency or relevancy, no questions of law are presented for
our review.
It is true that an agreed statement of facts was stipulated into
the record of the case from the former trial, but additional
evidence was introduced at this trial, and the prayers were based
on the entire evidence.
It was said in
Grayson v. Lynch, 163
U. S. 472, that:
"This Court has held in a series of cases that the special
findings of facts referred to in the acts allowing parties to
submit issues of fact in civil cases to be tried and determined by
the court is not a mere report of the evidence, but a finding of
those ultimate facts upon which the law must determine the rights
of the parties, and if the findings of facts be general, only such
rulings of the court in the progress of the trial can be reviewed
as are presented by a bill of exceptions, and that in such case a
bill of exceptions cannot be used to bring up the whole testimony
for review any more than in a trial by jury."
Norris v.
Jackson, 9 Wall. 125;
Dirst v.
Morris, 14 Wall. 484;
Boogher v. Insurance
Co., 103 U. S. 95;
Lehnen v. Dickson, 148 U. S.
72.
The judgment of the circuit court is accordingly
Affirmed.
