SUTTON, Justice.
This is an action to determine whether the defendant in error's use, without a city franchise, of the public streets belonging to the City of Englewood is lawful. We shall refer to the parties as the plaintiff or city and the defendant or the company.
The writ of error arises due to the dismissal, on motion for failure to state a claim, by the trial court of a second amended complaint wherein the city sought:
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